IN THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2017—02415

BETWEEN

SHIVA RAMBARAN

Claimant

AND

NASHIV AUTO PARTS COMPANY LIMITED

Defendant

*********************************************

Before: Master Alexander

Date of deliveg: January 17, 2019

Appearances:

For the Claimant: Mr Vishnu Bridgemohan instructed by Ms Kelly Sirju

No appearance for the Defendant

DECISION

FACTS

1. The claimant (”Shiva") was working as a garage labourer for the defendant

(”Nashiv Auto") when he suffered injuries in the course of his employment.

The pleaded case of Shiva was that on October 6, 2015 at approximately

9:30am, his co-worker (”Nary”), a forklift driver, and he were moving motor

vehicle transmission automotive parts from the front yard to the garage and

onto shelves. Whilst in the process of doing this, Nary placed a transmission

onto one of the shelves, and Shiva began sliding it under and into the shelf

when suddenly the shelf above, containing automotive parts, collapsed and

pinned him to the floor. From this accident, Shiva sustained injuries and filed

Page 1 of 12

a claim for compensation on July 03, 2017. He obtained judgment on liability

in default of appearance on October 11, 2017 and the assessment was

assigned to a master for disposition.

THE EVIDENCE

Evidence in chief was provided via witness statement filed by Shiva on May 28,

2018. There was also a hearsay notice filed to get into evidence several medical

reports. This court, however, requested the attendance of Dr Rasheed Adam to

assist with the medical evidence at the assessment. Given the non-participation of

Nashiv Auto, all documents in support of Shiva’s case went into evidence

uncontested including: medical reports from Dr Adam, Dr Peter Gentle and Dr A

Gopaul of Eric Williams Medical Sciences Complex (EWMSC); invoice from Dr Adam;

referral letter and appointment card from EWMSC; and a statement from Nary.

in assessing the quantum to award as general damages, this court applied the usual

principles set out in the hallmark decision of Cornil/iac V St Louisl. These included:

the nature and extent of the injuries sustained; the nature and gravity of the

resulting physical disability; the pain and suffering which had to be endured; the

loss of amenities suffered; and the extent to which the claimant’s pecuniary

prospects have been materially affected. The court would examine the evidence

presented in the context of these guiding principles.

Medical evidence

. The medical report of Dr Gopaul dated November 14, 2015 stated that Shiva

was seen on October 6, 2015 (date of the accident) and, following radiological

investigations, was diagnosed with a wedge compression fracture of L1. He

Cornilliac v St Louis (1965) 7 WiR 491

Page 2 of 12

had a T12-L2 fixation operation performed by Dr Perez, a consultant, and was

discharged on October 14, 2015 to Neurosurgery Outpatient Clinic for

continuing care under Dr Perez. He was referred also to physiotherapy.

. There were two medical reports from Dr Adam dated November 30, 2015 and

December 7, 2016. In the 2015 report, Dr Adam stated that he had evaluated

Shiva shortly after the accident on November 25, 2015. He had scans and x-

rays, done at EWMSC, which showed a fractured spine for which Shiva had

surgery with pins and rods. Post-surgery, there was improvement leading to

Shiva being ambulant but still suffering with back pain. Dr Adam’s examination

revealed a spinal fracture, with grade 4/5 paraparesis. He was referred to Dr

Gentle for pain in his chest and lung contusions. Upon review a year later, Dr

Adam reported in December, 2016 that gradual improvement was

experienced by Shiva but this was of no significance over the last three

months. DrAdam noted that Shiva remained ambulant with no numbness and

a normal bowel movement. Shiva, however, had weakness in his legs and

burning on urination. On examination, Dr Adam’s findings were the same as

previously, save that there was now urinary dysfunction and severely impaired

sexual functioning. Dr Adam stated that Shiva would not be able to work as a

general labourer but might do light duties as a tradesman assistant. He was

ascribed a 75% permanent partial disability.

. When posed questions by the court, Dr Adam explained that, using the power

weight scale from 1-5, Shiva had spinal cord damage classified as grade 4 over

5 power. It meant that 5 was the best and zero was the worst diagnosis, so

grade 5 over 5 was the best. A grade 4 over 5 power diagnosis meant that

Shiva could raise his limb against gravity, but it was weak. Pressed for further

explanation of Shiva’s condition, Dr Adam stated that he would not be able to

Page 3 of 12

have normal grip power or in walking, would become easily tired because of

the weakness. According to Dr Adam, any activity over half an hour would

cause Shiva to be weak in his upper and lower limbs. This would translate into

Shiva not being able to function at thejob he was doing. Pressed even further

by this court, Dr Adam admitted that this weak functionality would mean that

Shiva would have to rest before resuming his work, and to avoid sitting or

standing for over half an hour, or lifting or bending because of the weakness.

Dr Adam stated also that as a tradesman assistant, Shiva might work in the

capacity of bringing tools or supporting a plank then rest before resuming his

functions. Dr Adam also explained that the pins and plates inserted during

surgery were to fuse the bones, and might have to be removed because they

were no longer necessary. This would require future surgery, thus confirming

the prognosis of Shiva’s treating doctors. If these were not removed, they

would restrict his back movement more and there existed the risk ofthe metal

protruding the skin and causing infection. As for the improvement referenced

in his reports, Dr Adam stated that this was not of any grave significance. Shiva

remained with weak limbs and some restrictions, which created challenges in

bending, standing, sitting and involvement in social and domestic activities.

He was clear that the urinary burning was because of Shiva’s injuries, that

affected the way his bladder worked, and not a consequence of an infection.

He clarified that the impact of the injuries on the bladder would require

frequent passing of urine and that the burning might also be caused if this was

not done, so in effect it could be a mix of the injuries and signs of infection

from not releasing the urine frequently. Dr Adam also clarified the sexual

dysfunction, explaining that Shiva would experience pain while having sex and

would only have a weak erection that he would have difficulty sustaining.

Page 4 of 12

7. Dr Gentle, a consultant orthopaedic surgeon, noted in a report dated April 12,

2016 that the pain in Shiva’s right side of the chest was gone and he had no

fractured ribs but got shortness of breath on breathing. There was a long

surgical scar in the centre of Shiva’s thoracolumbar spine, so he was expected

to experience pain in his lower back from sitting for long periods and walking

far. He was given a 4% permanent partial disability (orthopaedically) for the

shortness of breath and occasional mild pain in his chest.

Evidence of pain and suffering

8. The evidence of nature and extent of injuries and lingering disabilities was

extracted from the doctors’ reports as well as the oral testimony of Dr Adam.

While Dr Adam spoke in some limited way of Shiva's pain and suffering and

loss of amenities, it was to Shiva’s evidence that this court turned for a full and

proper understanding of these limbs. Understood was that Shiva’s pain was a

subjective experience so would be assessed on his account of his suffering. His

evidence in chief effectively captured the pain he underwent upon the

accident. He described himself as being "sandwiched” and ”squeezed"

between the iron rack and gearbox. This pain was immediate and excruciating

and he began "bawling and screaming" in agony. He averred that his back and

legs were numb so, when the forklift raised the rack off his back, he used his

elbows and hands to crawl slowly out, describing the effort as painful. He was

experiencing a burning sensation in his spine that felt as if two sharp bones

were rubbing together and his whole body was cramping. The ride in the

ambulance to the hospital was described as a journey of suffering, with added

pain on every bump over which the ambulance rode or on every bend or

corner taken. Post-surgery, the pain continued and was unbearable, so he was

given medication to put him to sleep. He stated that, "in the days immediately

following the accident, I experienced excruciating pain about my spine a

radiating pain which travelled from my neck down my spine to my legs. My

Page 5 of 12

back and legs would also cramp for long periods." According to his averment

in chief, it was three days later that he was able to manage the pain. After

spending two weeks at the EWMSC, he discharged himself because ofthe poor

conditions. He was restricted to a wheelchair for seven months. He averred

further that despite being informed initially that he would require surgery to

remove the pins in his spine, when he visited Dr Perez two years later, he was

told that they would have to remain.

it was his evidence also that he required the assistance of his parents and

girlfriend to help him with personal hygiene such as getting onto and off the

toilet, showering, dressing or getting into a sitting, standing or bending

position. This was necessary as he could not bend at that time. His pain was

both physical and psychological because the incapacitation and dependence

on others were traumatic and embarrassing. He claimed that he was still

experiencing terrible pains in his neck, shoulder and back, occasional mild pain

in his chest and shortness of breath. Further, his quality of life disintegrated

before his eyes, with challenges experienced from the minute he would wake

up and try to get off his bed aided by his parents, and with sitting and standing.

Additionally, sitting to eat and even sleeping presented challenges. He stated

thus, "[Sleeping is also quite uncomfortable as it is quite difficultforme to sleep

without turning and every time I turn would trigger an overbearing pain to my

back. This would cause me to scream out offrustration and oftentimes I would

never have a proper nights rest. I feel like I have lost my ability to live life free

from pain.” He affirmed that he could no longer assist with housework as

before although he still tried to help with minor household chores. The

accident ruined his plans with his girlfriend, whom he could no longer please

emotionally and physically. He could no longer use public transportation

because of the pain he would endure. He could no longer play sports such as

Page 6 of 12

cricket, football and basketball, as he was unable to run, bend or kick without

getting painful vibrations about his body. His participation in social activities

dwindled because of his pain, which has caused him to become depressed.

The loss of his independence, feelings of being a burden to his family, and

inability to live a pain free life have only exacerbated his depression, causing

him to withdraw from participation in any social activity.

CASES

10. Counsel suggested four cases to influence the quantum awarded,

recommended at $250,000.00. First, Calvin Dipnarine v Attorney Generalz,

where in 2012 Mohammed M awarded $200,000.00 for lumbosacral spasms

with decreased range of movements, diminished sensation bilateral 51

dermatomes, L5/51 radiculopathy and spondylolisthesis, neurological deficit

and corrective surgery with the insertion of two pedicle screws in L5 and two

screws in sacrum plus two connecting rods. The claimant experienced loss of

libido, inability to stand, sit or walk for long periods of time and inability to

engage in sports and exercise. Secondly, the case of De Leon v Ramlal3, where

in 2000 the Court of Appeal for fractures of the cervical spine and pelvis and

whiplash injury awarded $75,000.00; as adjusted to December, 2010 to

$153,082.00. Thirdly, Moansammy v Ramdhanie & Capital Insurance“ where

in April 2005 for a back injury at L4/5 and L5/Sl, with pain in the right hip and

lower back and the claimant underwent surgery, with an uneventful recovery,

an award of $75,000.00 was made; as adjusted to December, 2010 to

$121,102.00. The claimant was assessed as having recovered less than 50% of

the L4 and L5 nerves. Fourthly, Gerard Jadoobirsingh v Bristow Caribbean

2 Calvin Dipnarine v Attorney General CV2008-03944

3 De Leon v Ramlal CA No 53 of 1999

4Moansammy v Ramdhanie & Capital Insurance Ltd CA Civ No 62 of 2003; HCA 2316 of

2001

Page 7 of 12

11.

12.

(a)

Limited, Lewis $uarez5, where in 2007 Armorer J for chronic pain and

numbness in the spine C-34, C-56, L45 and L5 51; loss of libido; post-traumatic

stress leading to depression; inability to sit at a desk for more than thirty

minutes awarded $80,000.00; as adjusted to December, 2010 to $105,150.00.

Shiva’s injuries had a debilitating impact on him and this court was guided by

the cases provided, given the equivalency with the one at bar. In considering

the quantum, this court factored in the severity and extent of Shiva's injuries,

his pain and suffering, loss of amenities and that he remained with a serious

handicap physically. It was felt just to award $200,000.00 for general

damages.

SPECIAL DAMAGES

In actions for personal injuries, the damages recoverable are in the form of

special or general, which would usually be a one time, lump sum of money.

Having largely discussed general above, this court turned to special damages.

This type of damages has to be pleaded, particularized and proved strictly“.

Courts would generally take a realistic approach with regard to proof of special

damages and accept that particularity must be tailored to the facts. Generally,

special damages would consist of out of pocket expenses and loss of earnings

incurred down to the date of trial.

Medical expenses

Shiva claimed $3,600.00 as expenses for medical services rendered by Dr

Adam and Dr Gentle, as well as for medication. He provided receipts/invoices

Gerard Jadoobirsingh v Bristow Caribbean Limited, Lewis Suarez CV2005-00784

Mario Pizzeria Limited v Hardeo Ramjit CA No 146 of 2003

Page 8 of 12

to substantiate the claim for consultation and reports in the sum of$2,100.00

so this would be allowed as claim. The claim for medication and continuing

was made in the sum of $1,500.00 but Shiva failed to provide documentary

proof ofthis expenditure. His counsel submitted that, given the severity ofthe

injuries, this court should exercise its discretion and award a reasonable figure

for medication. This argument was rejected outright as illogical. Shiva was a

patient of a public health institution and continued as an outpatient in the

Orthopaedic Clinic under Dr Perez. Thus, this court assumed that he could not

provide receipts for medication as drugs were obtainable freely in the public

health system. Further, there was no justification for making any such award

especially as in his evidence in chief; Shiva was silent as to any claim of having

incurred such expenses. In any event, given his injuries he would most likely

have far exceeded this sum claimed for medication. This aspect of the claim

for medical expenses was disallowed for failure to particularize and prove this

expenditure.

(b)m

(C)

Shiva pleaded that he incurred $1,500.00 and continuing for this head but was

unable to produce documentary evidence to substantiate this claim. This

court noted his evidence that he could no longer use public transportation

because of the pain from his injuries and that his parents usually transported

him to his appointments. it was accepted that he would have to be

transported to clinic, physiotherapy and other medical visits, and the sum

claimed was reasonable. He could recover $1,500.00 for transportation.

Domestic assistance

Shiva pleaded $20,000.00 for domestic assistance, averring that he required

assistance for approximately six months from his parents and girlfriend. While

Page 9 of 12

(0')

this court felt that such domestic assistance would have been required for a

period, it was noted that counsel failed to clarify this need or length of such

assistance from Dr Adam. Counsel's submission that this sum should be

allowed as claimed, because the evidence was uncontested, failed to sway this

court. Special damages should be proved and there was no attempt to even

bring any of these persons to confirm the length of care extended to Shiva or

to justify the huge sum claimed. In the circumstances, this court, having

recognized that initially this would have been a need, was prepared to allow

$2,000.00 per month for four months for domestic assistance, which would be

awarded in the sum of $8,000.00.

Loss of earnings

Shiva pleaded loss of earnings from the date of the accident, October 6, 2015

to the date of the assessment, April 19, 2018 in the monthly sum of $3,200.00.

He then gave evidence of earning a weekly salary of $900.00, which translated

to $3,600.00 monthly. He provided no documentary evidence and it was

submitted that he received his weekly salary in cash. Shiva failed to give

evidence of this cash payment himself and this court was at a loss as to

whether his monthly salary was $3,200.00 as pleaded or $3,600.00, as given in

his evidence in chief. It was also unclear whether he was paid or not for the

two days in the week that he suffered the injuries, including for October 6.

Also unclear was whether his workweek consisted of five or six days or how

does a monthly pleaded salary of $3,200.00 translate to a weekly salary of

$900.00. There were several other deficiencies in this evidence but this court

was cognizant of the evidence of Dr Adam that confirmed he was unable to

work in his previous employment. In the circumstances, and given the paucity

of and insufficiencies in this evidence, this court would allow him to recover

loss of earnings from October 7, 2015 to April19, 2018 at the monthly rate of

Page 10 of 12

13.

$3,200.00. From this would be deducted 25% for contingencies including

holidays and sick days, for which there was no evidence to support he would

be paid. He could recover loss of earnings:

From October 7, 2015 — April 19, 2018

($3,200 x 2 years 6 months & 12 days) = $97,248.00

Less 25% contingencies= $24,312.00

Total LOE = $72,936.00

FUTURE LOSS OF EARNINGS

Shiva would be entitled to an award for future loss of earnings where he could

show such continuing loss linked to the accident7. Shiva has been unemployed

since the accident and he claimed that his pecuniary prospect was

compromised seriously. His medical evidence supported an inability to be a

general labourer, stating only that he could work as a tradesman assistant. It

was accepted that his earning capacity was permanently impaired. Shiva gave

evidence that he was a man of limited education, having left school at Form 4

and was a manual labourer with the skill of a welder. In essence, Shiva was a

manual labourer who was now rendered “an effective cripple”8 on the labour

market. Also accepted was that Shiva, with the half hour muzzle on activities

involving standing or sitting, would be challenged seriously in finding "light

work". In the view of this court, Shiva was entitled to future loss of earnings,

which should be worked out using the traditional method of calculation. In

arriving at a multiplier, this court considered the submission of counsel for a

multiplier of 20 and a working life of 65. He based this on Peter Seepersad v

Theophilus Persad & anotherg where the Privy Council applied a multiplier of

Munroe Thomas v Malachi Forde & Ors Civ Appeal No 25 of 2007

Wayne Wills v Unilever CA No 56 of 2009

Peter Seepersad v Theophilus Persad & Capital Insurance Limited [2004] UKPC 19

Page 11 of 12

14.

16 to a 40 year old. In the present case, Shiva was 24 years as at the date of

the assessment and would have Worked until at least 60 years, and barring

physical ailment might have worked up to 65 years. A working life of at least

31 years, possibly 41 years, was considered and a multiplier of 18 applied in

the present case. It was considered also that his medical evidence stated that

he could still function in the limited way as a tradesmen assistant, although

the feasibility of getting such a position was seriously queried. This court also

applied a discount to cover holidays, illness and other vagaries of life of 35%

and worked out his future loss of earnings as:

Multiplicand $3,200 x 12 $38,400.00 (annual net salary)

FLOE $38,400.00 x 18 = $691,200.00

Less 35% = $241,920.00

Total FLOE = $449,280.00

DISPOSITION

It is ordered that the defendant do pay to the claimant (Shiva) the following:

General damages of $200,000.00 with interest at the rate of 2.5% per annum

from July 25, 2017 (date of service by post) to January 17, 2019;

Special damages of $84,536.00 with interest at the rate of 1.25% per annum

from October 6, 2015 to January 17, 2019;

Future loss of earnings of $449,280.00;

Prescribed costs of the assessment of $53,912.91.

Martha Alexander MARTHA ALEXANDER

Master “ASTER OF T"E SUPREME COURT OF

mmon AND roman

Page 12 of 12