in the republic of trinidad and tobago in the high...

of 19

IN THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE CV 2006-00164

BETWEEN

SIMON RAMDATH Claimant

AND

TELECOMMUNICATIONS SERVICES OF TRINIDAD AND TOBAGO LIMITED

First Defendant AMERICAN LIFE AND GENERAL INSURANCE

COMPANY (TRINIDAD AND TOBAGO) LIMITED Second Defendant

********************************************************************* Before: Master Alexander Appearances: For the claimant: Mr Shawn Roopnarine instructed by Ms Summer Sandy For the defendants: Mr Kirk Bengochea instructed by Ms Kaveeta Persad

DECISION

1. This is a claim in negligence for damages suffered by the claimant (“Simon”) in an accident on 4th

August, 2005. This matter has had a long and highly contested foray in the court system. At the

heart of the contention is the issue of a prosthetic arm, with Simon postulating that he needs this

to return him to his pre-accident position and the first and second defendants (“TSTT” and

“ALGICO” respectively) arguing that there are alternatives that can and should be explored.

Both parties came armed with their medical experts to bolster their competing positions. The

medical evidence was pivotal, but needed to be assessed against a panoramic view of all other

evidence before the court to secure a just disposition of this issue. To set the entire scenario in

its proper context, a brief review of the material facts is essential.

of 19

2. At the material time of the accident, Simon was the owner and driver of motor vehicle

registration number PAU 6033 which was proceeding along the Naparima Mayaro Road, Bristol

Village, Mayaro when motor vehicle registration number TBB 3324, owned by TSTT and being

driven by its servant and/or agent, collided with Simon’s vehicle. It would appear that TBB 3324

was being driven at a very fast rate of speed, causing it to come over onto Simon’s side of the

road, resulting in the said collision. Simon’s pleaded case, as amended, is that the servant and/or

agent of TSTT was negligent in the management and control of TBB 3324, which is evinced in

the fact that the said collision occurred. It is a direct consequence of this negligence that Simon

suffered serious personal injuries, loss and damage. Simon is entitled to recover compensation,

having suffered a loss in tort for which he got judgment on 21st September, 2006 for 2/3 of his

claim. On the date when the judgment on liability was entered, there were certain concessions

made as to special damages1.

3. This court is concerned with the assessment of damages only, with the actual hearing concluding

on 14th May, 2015. On behalf of Simon, the witnesses who filed witness statements were Zarine

Ramdath, Sieunarine Rambhajan, Francis Gittens, Harrinath Ramsingh and Simon Ramdath, all

of whom were cross-examined save Zarine Ramdath. A witness summary was filed by Dr

Ramroop and he gave oral evidence in support of Simon’s case. On behalf of TSTT and

ALGICO, a witness statement of Dr Lousaing was filed and he was cross-examined.

4. The nature and extent of Simon’s injuries were distilled in several medical reports. The main

injury was to his right arm which, although attached to his body, is effectively useless. His

condition is described as a “functional amputation”. I now turn to the medical reports:

(a) Medical reports of Dr Ramroop

In a medical report dated 7th September, 2005 Dr Ramroop described Simon’s injuries as fixation

to the right humerus – alignment of fracture; displacement and angulation and right radius loss of

1 By Order dated 21st September, 2006 of Rajnauth-Lee J it was agreed between the parties as follows: (1) Should the claimant succeed in the action, the damages for repairs to the motor vehicle PAU 6033, labour and

materials = $5,000.00; certified copy $20.00; loss of use $1,000.00 Total $6,020.00 (2) Should the defendants succeed in the action, the damages for repairs to the motor vehicle TBB 3324, are agreed as

follows: cost of repairs $12,713.34; adjuster’s fees $454.25; loss of use $1,000.00 Total $14,167.59 (3) Should the claimant succeed in the action, his claim for damages for personal injuries would be assessed on a date to

be fixed by this court.

of 19

bone; soft tissue loss and nerve injury; right ulna fracture with open reduction and internal

fixation; wrist ligament injury, Grade II; right elbow ligament injury and head and scalp soft tissue

injury. He was assessed at that time with a permanent partial disability of 60%. In a second

medical report under the hand of Dr Ramroop and dated 4th May, 2013, Simon’s updated

diagnosis was stated to be a non-functional right upper limb below deltoid insertion to biceptial

insertion and grafting to the left leg. He was assessed at this point with a 70% permanent partial

disability.

(b) Medical Report of Dr Araujo

Dr Araujo was retained by TSTT and ALGICO to advise on Simon’s present condition, any need

for future medical treatment and if any such treatment had to be done abroad. He was not called

to give evidence at the assessment. In a report dated 23rd January, 2007 Dr Araujo diagnosed

Simon as having suffered “a functional below elbow amputation of his right upper limb”. By the

same report, Simon was advised that there was little, if any, chance of his recovery of function in

his right forearm, wrist and hand. As regards further treatment, it was indicated that Simon

would benefit from considering amputation of the forearm and the fitting of a below elbow

prosthesis, and this treatment would have to be pursued abroad. Simon was assessed as having a

65% permanent partial disability.

(c) Medical Report of Dr Toby

The assessment of Simon was done in January, 2012 and confirmed the need for an amputation

and fitting with a prosthetic arm, to be provided by the Trinidad and Tobago Orthotics and

Prosthetics Limited.

(d) Medical Report of Dr Lousaing

Dr Lousaing was a witness for TSTT and ALGICO and he, at their behest, assessed Simon on

27th September, 2012. In his undated report, he documented his findings as: an open reduction

internal fixation to the right mid shaft of the humerus following a fracture by plate and screw; a

crush injury to the right forearm with open reduction and internal fixation of the left ulna;

definite associated muscle and nerve injury to the tissues of the forearm; loss of the diaphyseal

bone segment following his crush to the radial bone of the forearm; resultant disruption of the

of 19

wrist joint secondary to his diaphyseal radial loss; multiple fractures to the metacarpals which

were not well defined; a stiff hand as a result of his previous injuries.

5. Dr Lousaing did consider, like the other doctors, the option of amputation at the level below the

forearm and the replacement of Simon’s hand and distal forearm with a prosthetic arm. He was,

however, the only medical practitioner who gave alternatives. In this regard, his evidence was

informative. It was clear that his divergent views were based on his opinion that a prosthetic

arm was a reasonable option, but that there were also other options available. It was clear also

that Dr Lousaing’s evidence hinged on exploration and tests which have not yet been done.

These alternatives included to leave the hand as it is and provide Simon with some external

splints or consider reconstruction, which would only be possible based on the result of an EMG

and nerve conduction studies. He assessed Simon with a 50% permanent partial disability as a

whole, as a result of his non-functional below elbow right upper limb.

DISCUSSION

General Damages

6. It is accepted that the award of damages would operate to reposition Simon in his pre-accident

place, as if the tort had not been committed2. In the present case, the fact that Simon has

suffered injuries from this accident is uncontested. The fact that Simon is entitled to

compensation is uncontested. The fact that Simon should have a path to revert to his pre-

accident position is uncontested. What appears to be highly contested is how this should be

done, with the medical evidence providing two divergent approaches. This court accepts that

there is no surefire compensatory figure to which Simon is entitled and that in his case, as in

many others where physical injuries leave a claimant in a debilitating position, it may not always

be possible to return the injured party to his pre-accident, physically healthy position. It is

accepted also that for Simon to recover full compensation, he must bring proof of his claim.

Once this is done, he is entitled to get fair, reasonable and appropriate compensation for the

injuries he has sustained. Simon’s compensation is not geared at over-enriching him, beyond his

actual or tangible losses, or conversely putting him in a position where, to his detriment, he is

2 The principle of “restitutio in integrum”

of 19

awarded far less than his actual losses. The question then is how does this prosthetic arm aid in

getting Simon back into his pre-accident position? As a corollary is the question, should he be

made to pursue alternative options and the prosthetic arm be seen as a last resort?

7. Prior to the accident, Simon had the full use of both arms and finds himself now deprived of this.

It is not inconceivable that with a prosthetic arm, he would be afforded greater use of both limbs,

rather than as currently obtains a non-functional limb. Should he be made to pursue alternatives

first, such as leaving the arm as it is, before he can get a prosthetic arm? This question must be

examined against the backdrop that damages, being ‘lump sum’ awards, assessed on a “once and

for all” basis; it means that Simon does not get a second opportunity to return to the court to

claim for continuing losses. It is incumbent, therefore, that his damages are assessed fairly and

fully and should aim to return Simon to his pre-accident position, as far as money can do so.

8. In the current exercise, the Cornilliac3 principles formed the bedrock for the assessment. As

these principles are so well-known, they need not be repeated here save to say that the evidence

as sketched clearly demonstrated the huge losses and pain and suffering endured by Simon.

Simon’s injuries are not in dispute – he sustained severe injury to his right arm for which he has

had multiple surgeries, including failed grafting procedures that have left him with a lower left leg

impairment. After several surgeries, there has been no real improvement of Simon’s condition -

he suffered a “functional amputation” or more fully described as “a functional below elbow

amputation of his right upper limb”. Simon has been medically assessed as having little chance, if

any, of recovering function in his right forearm, wrist and hand4.

9. It would appear from the evidence that Simon suffered both physically and emotionally from his

injuries. He gave evidence of experiencing extreme pains immediately on impact of the accident,

excessive bleeding and of feeling as if he would pass out due to the severity of the pain. He

testified to undergoing mental anguish after learning that the bones, tissues, ligaments and nerves

were damaged and that he would have to amputate his arm. Simon stated that he had to beg the

doctors to save his arm. The surgeries were also described as painful and the medical evidence

3 Cornilliac v St Louis (1965) 7 WIR 491 4 See Dr Araujo’s report above

of 19

supported Simon’s claim that even the donor site was a source of pain and that he now walks

with a limp5. Immediately following the accident, he was not able to brush his teeth, bathe or eat

with his left hand and even trying to use it was painful, as all the IV access routes were in his left

hand. The pain prevented him from sleeping and the injections to relieve the pain provided only

temporary relief. He gave evidence of the embarrassment he felt on having to depend on others

to help with his personal hygiene. When he was discharged from the hospital, he testified that

the dependence on his wife continued for almost a year. He could not assist with household

chores or discharge his role as the provider in his home. He described his agony and depression

at the situation and of feeling completely helpless. His inability to work and provide for his

family caused untold mental anguish, which was only compounded by the high dependence on

his wife to both physically and financially care for his family. He carries with him the debilitating

thought of his children remembering him as being infirmed and useless to his family and himself.

10. Simon, who is right hand dominant, gave evidence of the huge loss of amenities he has

undergone upon the loss of his right hand. In his evidence in chief, Simon stated that his life is

now “cheapened” by his injuries. He is challenged in doing simple activities such as buttoning

his clothes, holding a ball or bat, playing sports with his children or even signing his name. He

feels as if he has been robbed of living a life as most young men with children do. He admits to

being able to attend now, in some limited way, to his personal hygiene with his left hand. He

claims that, with his right hand always encased in a brace, he has not been able to function at full

capacity.

11. Counsel for TSTT and ALGICO, Mr Bengochea, sought to discredit Simon’s claim of

helplessness and of being physically challenged to contribute to the work around the household.

Whilst I was not wholly convinced with Simon’s evidence that after 10 years, he has not become

proficient in the use of his left hand to perform some of the basic personal and domestic tasks of

life, I did not accept Mr Bengochea’s carte blanche assertion that it must be that Simon has made

“absolutely no effort to improve his quality of life since his injury” or was exaggerating. To my

mind, it is not inconceivable that the loss of a dominant limb (particularly an arm) would affect

5 See Dr Araujo’s report

of 19

his ability to perform the basic functions that form an integral part of living. Even under heavy

cross examination, Simon’s evidence remained unshaken.

12. In the circumstances, Simon’s evidence of loss of amenities and his continuing psychological

suffering was accepted. Under cross examination, the fact that Simon continues to be plagued by

feelings of anger and inadequacy was clear and manifested in several outbursts. Thus, when

pressed as to why he did not put in the effort to improve his qualifications and quality of life, he

stated:

A Is not the matter I didn’t want to put in the effort you know my life has been transformed in the worst

way anyone would ever want right and even the simplest task used to trigger anger in me for the bare fact

that this accident brought me from one level to a next, even now it still triggers me. …

Q Did you try to learn any other games that you could play with your son, or was that because of the anger

as well you didn’t make an effort there either?

A Yes because this accident belittled me to the extent that it had me feeling like nothing.

Having had the opportunity to hear and observe this witness being put through the most exacting

of cross examination, I found his evidence credible. It is clear that the injury to his dominant

hand affected him both physically and psychologically and still continues to do so, as

demonstrated when in the witness box; he could be seen holding his sheathed hand in a

protective manner. This court did not accept, however, that his physical or emotional pains were

now of the same intensity as in the initial stages of the injury. To my mind, his emotional

anguish and pain would have whittled down substantially with the passing of time, albeit not

completely erased. Bearing this in mind, his evidence of pain and suffering was accepted,

including the pains which were concomitant with his four surgeries.

13. Mr Roopnarine provided 2 authorities to assist this court with arriving at a fair and reasonable

quantum in the assessment at hand: Mohammed v Clifford6 and Gardner v Coteau7. These

6 Mohammed v Clifford HCA 984 of 1970 involving a hand injury that led eventually to amputation, where the court accepted that the loss of an arm was more significant than the loss of a leg, both physically and psychologically. An award was made of $15,000.00 as updated to December, 2010 to $430,552.00.

of 19

cases, albeit of some vintage, provided a comparative guide to assess an appropriate award for

Simon’s pain and suffering and loss of amenities. In a similar vein as the approaches taken in

these cases, I considered as serious the debilitating impact that follows the loss of an arm,

particularly a dominant one. In this case in particular, the evidence was poignant and clear that

the loss of his right arm had a crushing effect on how Simon viewed himself and his incapacity,

when he found himself unable to do what he was previously capable of doing. The rawness of

his psychological pain at the loss of this limb was clear under cross examination even some 10

years after this incident. It was clear that he may have learnt to live with the pain of the loss of

his hand but, emotionally, it remains a sore issue with him. Despite the drilling by Mr

Bengochea, Simon remained staunch in his claim that the loss “cheapened” his life and made him

feel less of a man in the eyes of his family. This evidence that Simon continues to be challenged

psychologically by his injuries is accepted by this court. For his pain and suffering and loss of

amenities, Mr Roopnarine suggested that an appropriate quantum would be in the range of

$500,000.00. I was not convinced that such an elevated quantum was reasonable or would fairly

and justly meet the justice of this case. In fact, while I accepted that he was entitled to be fully

compensated for his pain and suffering, the assessing court is not an avenue for unwarranted

enrichment; compensation must be fair not distended or unjustly inflated. I turned, therefore, to

the case put by the other side.

14. Mr Bengochea, in presenting the case for TSTT and ALGICO, invited the court to consider 3

different authorities, also of some vintage. He posited that these cases dealt with injuries that

were closely representative of the injuries in the case at bar but attracted lower awards. These

cases were: Rosie Sookraj v Harold Harrilal8; Ganesh Seepersad v Ramsoondar Jhilmit9 and

7 Gardner v Coteau HCA 858 of 1973 involving injury to the hand, right elbow, forearm and hand with a loss of ¾ of function and where it could not be returned to useful functionality, with an award being made of $24,000.00 as updated to December, 2010 to $429,932.00. 8 Rosie Sookraj v Harold Harrilal and ors HCA No 2804 of 1987 involving an amputation of a left lower arm, collapsing of the lung, a miscarriage and many facial scars which required plastic surgery. The plaintiff was hospitalized for 3 weeks; was unable to attend to daily household duties or take care of her children and stopped going to the beach. as she could no longer balance in the water. In October, 1993 she was awarded $140,000.00 as updated to December, 2010 to $373,721.00. 9 Ganesh Seepersad v Ramsoondar Jhilmit HCA No 358 of 1984 involving a compound fracture of the right humerus just below the right shoulder, which was crushed so could not be saved. His right arm was amputated below the right shoulder. His prosthetic would have been for cosmetic, not functional value. He was hospitalized for 23 days and suffered pain even after treatment. He could no longer play cricket, football or play or interact with his children as he was accustomed. In January, 1991 he was awarded $60,000.00 as adjusted to December, 2010 to $198,079.00.

of 19

George Ortega and ors v Herman Belgrave10. Mr Bengochea submitted that the case that

most closely resembled the one at bar was George Ortega and it should be used as a guide

together with Simon’s failure to mitigate his losses. In his reply, he also submitted that the

average of the awards in the cases he provided was $263,726.00 and this, with the distinguishing

factors, should inform the award to Simon for his pain and suffering.

15. I have considered these 3 authorities and concluded that with respect to Rosie Sookraj a clear

distinction exists. It involved the loss of her left non-dominant arm, collapsing lung, miscarriage

and facial scars requiring plastic surgery. These injuries are clearly dissimilar to those suffered by

Simon so the comparative value of this case was near non-existent. Of note also is that the

plaintiff in Rosie Sookraj did not experience any initial pain, as she was unconscious until she

awoke in the hospital. Simon’s evidence of pain and mental anguish on the loss of his dominant

right hand; the pains he experienced at the donor site where the grafts were harvested; his mental

anguish at being unable to provide for his family as he previously did and on contemplation of

the diminished respect he attracted in their eyes; the fact that he has had 4 surgeries which have

left him with a limp can be contrasted with the dearth of similar evidence in Rosie Sookraj.

Little weight was placed on this authority as providing any meaningful comparative value for the

current exercise in arriving at a fair quantum to award Simon.

16. With respect to Ganesh Seepersad, which involved the amputation of the right dominant arm,

there is also a case to be made for some distinction with Simon’s case. In Simon’s case, there was

the additional injury of the effect on him from harvesting grafts at the donor site and the

resultant limp. I concluded that Simon would attract an award that was more than that settled in

Ganesh Seepersad. Finally, the case of George Ortega has been held up as the bar in terms of

its similarity to the present case. Whilst there is similarity with the injuries sustained by Simon,

both matters are not exactly on par and, in my view; Simon can attract an award in the range of

Ganesh Seepersad and George Ortega.

10 George Ortega and ors v Herman Belgrave HCA No 401 of 1974 involving a compound fracture of the right radius and ulna and a fracture of the humerus, lacerations to the right upper lip, eyebrow and left arm. The right arm below the elbow was amputated, as it was not viable. He could no longer play cricket and could only write letters with great difficulty with his left arm. On appeal, general damages were awarded of $45,000.00 in April, 1985 as updated to December, 2010 to $249,506.00.

of 19

17. I have considered all the authorities provided by counsel for the parties in this matter. These

authorities were all clearly of some vintage and, in coming to my informed determination as to a

fair quantum to award Simon, I was mindful of the dangers of using the methodology of

comparative analysis and the cautions issued by the Privy Council. I considered the injuries

sustained by Simon, his pain and suffering and loss of amenities as well as the evidence

presented. I also gave serious consideration to the arguments advanced by Mr Bengochea based

on the authority of George Ortega, particularly that these cases were twinned. I felt that based

on the evidence, Simon’s injuries, lingering disability and his physical and mental pain and

suffering must attract an award that would adequately compensate him for his unique injuries.

On the other hand, I felt that the award suggested by Mr Roopnarine was on the higher trajectory

of the scale of awards that Simon is entitled fairly to obtain. It is always a considered exercise

when assessing what is fair and just to award an injured party but I can only be guided by the

principles of reasonableness and fairness. Simon did not ask to be injured or to lose the benefit

of his dominant right hand and is entitled to fair and just compensation for his injuries. Such

compensation is not always flawless or perfect. Simon has lost the use of his dominant arm, has

had 4 surgeries and has gone through untold pain and suffering at the donor site and now walks

with a limp. His pain on this loss has not only been physical but also psychological. To my

mind, based on the evidence, a reasonable award for Simon’s pain and suffering and loss of

amenities would be $300,000.00.

Special Damages

Pre-trial loss of earnings, domestic assistance, travelling and medicine

18. I now turn to the issue of special damages, which the law requires must be pleaded, particularized

and proved. The first such claim is loss of pecuniary prospects, under which head Simon has

pleaded that he was employed with Lennox Petroleum Limited (“Lennox”) as a floor man since

October, 2003 earning a monthly salary after deductions of $9,000.00. He gave evidence that the

salary of a floor man increased in 2009 to a net salary of $15,207.65 per month and from

September, 2012 to $24,188.10 (net) per month. Simon’s wages were not disputed by TSTT and

ALGICO. Further, it would appear that Simon was employed “on a job” and after completion

was hired on another job based on performance. The evidence of Mr Rambhajan, Manager of

Finance and Administration for Lennox, pointed to Simon being hired repeatedly or from time to

of 19

time on different projects, which was indicative of him being a good worker. As a witness, Mr

Rambhajan presented as sincere and believable and gave his evidence in a forthright and

convincing manner. He confirmed that Simon was a good worker who, it was likely, based on his

employment pattern, would have continued to be employed with Lennox. His evidence was not

impugned under cross examination and, in fact, he presented as a solid and credible witness of

Simon’s continuing employment with Lennox, on a regular basis. Another witness, Mr Gittens, a

co-worker of Simon, also gave evidence of the possibility of Simon being promoted up the ranks.

It would appear that there was no formalized structure for promotions in Lennox, and the path

for movement up the ranks was easy and unhindered. He expressed the view that Simon would

have easily progressed to a derrick man, which is the highest position at the rig. Both Mr

Rambhajan and Mr Gittens brought clarity to the nature of Simon’s employment with Lennox

and it is accepted that all things being even, Simon would have continued in his contractual

employment there.

19. Given the evidence above, Mr Roopnarine submitted that Simon should recover his full pre-trial

loss of earnings of $1,803,314.37, based on the increasing salary of a floor man11. On the other

hand, Mr Bengochea submitted that Simon is entitled to his pre-trial earnings but this should be

reduced because of his failure to find alternative employment and the fact that the medical

evidence did not support total incapacity. Mr Bengochea suggested that Simon’s loss to date

amounts to $1,062,000.0012, which must be discounted by 50% (to give a sum of $531,000.00) as

he was assessed by Dr Lousaing with a permanent partial disability of 50%.

20. I find Mr Bengochea’s treatment of this issue to be trifle and disingenuous, as there was a clear

failure to take account of all the medical evidence before this court and to focus solely on his

medical expert. It was also flawed by his failure to treat with Simon’s re-amended pleadings as to

his actual loss of earnings. Further, this court is not bound by the disability award handed down

11 From August, 2005 – December, 2009 @$9,000.00 per month net (4 years 4 months) = $468,000.00; From December, 2009 – 14th March, 2012 @$15,207.65 per month net (2 years 3 months) =$410,606.55; From 15th March, 2012 – September, 2012 @ $21,083.42 per month net (6 months) = $126,500.52; From September, 2012 – June, 2015 @$24,188.10 per month net (2 years 9 months) = $798,207.30. Total LOE = $1,803,314.37 12 This calculation was based erroneously on a $9,000.00 per month salary as a floor man, contrary to the re-amended pleadings filed on 1st July, 2013 which particularized the increases in salary over the years.

of 19

by medical professionals in treating with pre-trial loss of earnings.13 In this case, the award

ranged from 50% - 70% yet Mr Bengochea sought to use the lowest award. A review of the

evidence is clear that with the injury to his hand, Simon was effectively disabled from continuing

in his current job as a floor man with Lennox. He is, therefore, entitled to recover all financial

losses that flowed from that injury, including full pre-trial loss of earnings. To determine this, I

resorted to his pleaded case and the medical evidence, which confirmed his entitlement to his full

loss of earnings up to assessment.

21. The medical evidence was clear as to Simon being able to do only “light duties”, which it would

appear was not available in his previous employment. Mr Bengochea also did not provide any

evidence of the light duties available to Simon that he failed to access. It was also clear from the

evidence that the salary of a floor man increased over the period of his incapacitation14. I could

find no good reason for Simon to be disadvantaged or denied the benefit of the increased salary

because he suffered injuries consequent on the wrong done by the servants or agents of TSTT. I

was, therefore, prepared to allow Simon to recover pre-trial loss of earnings as a floor man from

the date of the accident to assessment in the sum of $1,803,314.37. This sum was adjusted to

reflect the fact that Simon was in contractual employment (which in his particular case depended

on his ability to be consistently rehired from time to time) as well as the vagaries of life. In this

regard, the evidence of Mr Rambhajan that Simon was a “good worker”, who would have been

rehired consistently and continuously once in physical health, was also factored into the

consideration. This award was discounted by 40% for contingencies of life:

Pre-Trial Loss of Earnings = $1,803,314.37

Less 40% contingencies - $ 721,325.75

Total = $1,081,988.62

22. Simon claims domestic assistance from the time of the accident for 2 years at $1,500.00 per

month in the global sum of $36,000.00. I was not prepared to allow domestic assistance for 2

years after the accident as I find it unreasonable and against the weight of the evidence. At the

end of the day, Simon was not bedridden or hindered by his injuries from performing personal

13 See Privy Council on the relevance of this in Peter Seepersad case 14 Witness statement of Mr Rambhajan, Manager of Finance and Administration for Lennox Petroleum Services

of 19

and household domestic chores for such an extensive period. Such ordinary tasks of living may

have been a challenge and may have taken Simon, who was now without the use of his dominant

right hand, a longer period to do but he was not handicapped from performing them. In fact,

there was no medical evidence that supported this position of Simon and he has brought no

documentary proof to support this claim. It is disallowed. Similarly, Simon has brought no

proof of his claim for travelling and medicine. These claims are denied also for lack of proof.

Special damages would be allowed in the sum of $1,088,008.62 which is inclusive of the agreed

sum of $6,020.00 pursuant to the consent order dated 21st September, 2006.

Prosthesis

23. As indicated upfront, a major issue in contention surrounded the need for prosthesis. Evidence

was presented by Mr Ramsingh, Office Manager of Trinidad and Tobago Orthotics and

Prosthetics, L.L.C. Limited that, on assessment of Simon, he was found to be suitable for a

Functional I Limb Bionic Hand. This is a functional limb, with 5 independently powered digits

that open and close around objects at a cost of $793,000.00 per unit.

24. Dr Araujo, selected by TSTT and ALGICO as the medical doctor to assess Simon, advised that

there was little or no chance of recovery of function to Simon’s right forearm, wrist and hand and

that he would benefit from consideration of amputation of the forearm and fitting of a below

elbow prosthesis that would have to be done abroad. He was not called as a witness, so this

court did not have the benefit of his evidence in clarification or expansion of his prognosis and

recommendation. Dr Lousaing, who reviewed this report and the other medical reports, did not

explicitly disagree with the findings. In his oral evidence, however, he expressed the view that his

approach would have been different in that he would have considered other options with

prosthesis (discussed below).

25. The case of TSTT and ALGICO, as set out in their amended defence, was in the form of a denial

that the prosthetic device as pleaded was necessary or vital to Simon’s needs or was compatible

to his injury or was the only one available on the market for an injury of this type. Mr Bengochea

in his submissions referenced the differing views on the best treatment available for Simon

(amputation or not) and particularly that both Dr Ramroop and Dr Lousaing expressed the view

of 19

that insufficient testing was done to determine a suitable prosthetic arm for Simon. He pointed

to Dr Ramroop’s evidence that several investigations would need to be done, including a CT

angiogram of the right upper limb as well as EMG and nerve condition studies to determine if

the major nerves were working or their level of functionality. He sought to discredit the evidence

of Mr Ramsingh as being skewed towards pricing for the prosthetic arm but which did not speak

to the question of suitability or viability. He submitted that Mr Ramsingh’s evidence was vague

and patently unreliable and to rely on it in the face of the more qualified medical evidence would

be reckless. Mr Bengochea also raised the issue of the cost of the prosthesis, which he argued is

dated (based on a 7 year estimate) and not reflective of the dramatically reduced cost due to

technology. Yet, he did not provide any real evidence of this “dramatically reduced cost”. He

pointed to the evidence of Dr Lousaing in this regard, which in my view did not provide a

concrete figure. In the light of this evidence, he asked this court to refrain from making any

award under this head for future medical care at this point in time as it was not in a position so to

do, given the incomplete and unreliable state of the evidence. I was unsure when Mr Bengochea

proposed to have this issue considered or an award made, given that this assessment is a once

and for all exercise. His presentation of the case for the defence was thin and porous and

provided little, if any, assistance to this assessing exercise.

26. Mr Bengochea also argued that the possibility exists that Simon may not amputate as he had

equivocated on the issue throughout and seemed only prepared to pursue it if he were to get the

“best possible treatment.” This latter assertion of Mr Bengochea was to my mind effectively

debunked by the evidence of Simon, who expressed a willingness to be fitted for a prosthesis:

It has been almost 8 years since the accident and nothing has been found since then by any of the numerous doctors

to give me hope of regaining my arm. The only option which comes close to returning some function to my arm is

amputation and replacement with the bionic arm. This is an option that I did not ever want in my life. It is why

I asked the doctors to try to save my hand when I first had surgery. But it is clear to me that the bionic prosthesis

is the only real hope for a hand that can function as best as possible as a real hand. I accept this now and I want

to have the closest thing to real that I can get. I would like to have the bionic hand fitted.

of 19

27. On the other hand, Mr Roopnarine argued that TSTT and ALGICO have not met their pleaded

case or led any evidence that the prosthetic device was not necessary or vital or was incompatible

with Simon’s injury. He pointed to Dr Lousaing’s medical report dated 27th September, 2012,

which confirmed that the prosthesis and quotation for it were both reasonable options. He also

referred to Dr Lousaing’s evidence, under cross examination, which introduced the use of a

partial prosthesis as a possible option and asked this court to view this suggestion as supportive

of some kind of prosthesis as a reasonable option.

28. Apart from the partial prosthesis argument, Dr Lousaing also introduced 2 other distinct options

or alternatives to prosthesis. I now turn to examine the 2 options given by Dr Lousaing in his

medical report dated 23rd January, 2007 viz.: (a) to leave well alone as it exists or (b) to consider

reconstruction. The first option requires Simon to wear an external splint to “alleviate his

discomfort.” It seems that the splinting option would work to prevent Simon’s deformity from

significantly increasing with time but would not prevent further deformity or stop the

“withering” away of the hand. Splinting serves to slow the process of degeneration, not eradicate

or stop it. The second option is bathed in uncertainty, as Dr Lousaing is unclear as to the success

of this procedure and the other doctors (save Dr Ramroop) were silent on this being a viable

option. Dr Ramroop, who was cross examined on this issue, felt that Simon had only 2 options:

leave the hand as is or do something about it. He was adamant that reconstruction with an

allograph would not succeed, as it was tried before and was not successful.

29. The medical evidence was for me conclusive on the matter. The case of TSTT and ALGICO has

fallen far short of showing that the prosthesis sought was lacking in suitability or its cost was

beyond the boundary of reasonable. By large, the medical evidence has confirmed that the fitting

of the prosthesis was reasonable and was in no way incompatible with Simon’s injury. I formed

the view that the evidence was weighted in allowing the amputation and prosthesis. The cost of

the amputation of an arm, inclusive of physiotherapy, was set out by Dr Persad in his report

dated 21st March, 2009 as being $15,500.00. Mr Ramsingh has provided a quotation for the cost

of the right below elbow prosthesis (Functional I Limb Bionic Hand) and supplies as

$793,000.00. This prosthesis is to be replaced every 5 years and Mr Roopnarine submitted that as

Simon was 45 years and likely to live beyond 70 years, he would need at least 6 replacements but

of 19

that 3 replacements in Simon’s lifetime would be reasonable. In his submissions, he proceeded

to claim $2,379,000.00 for replacements.

30. To my mind, the very suggestion of 6 replacements without detailed and precise evidence on

same was unreasonable and, given the enormous cost, even 3 replacements seemed untenable.

This is a claim which is by no means for a non-trivial amount, so required strict proof of its

necessity. This court had the benefit of a pro forma invoice, viva voce evidence of medical

professionals and evidence from Simon that he wants this prosthesis to return him to his pre-

accident position. Mr Bengochea failed to discredit the evidence led as to the requirement for the

fitting and replacement of the prosthesis and/or its frequency, arguing rather for it not to be

entertained based on the imprecise evidence of Dr Lousaing. While I note that Dr Lousaing’s

evidence is that the cost has been dramatically reduced with technology, such evidence of a lower

cost was not before me. Mr Bengochea, therefore, did not satisfy me as to how the cost was

affected by technology, so as to attract a lower award. On the other hand, the evidence as to the

frequency of replacements and/or rigid adherence to a timeframe was insufficient to conclusively

determine that the number and regularity of same were warranted as claimed. This court was

constricted by Simon’s failure to set out a proper basis for the number of replacements or to

provide satisfactory evidence as to the conditions (if any) that would impact the regularity of

these replacements. To my mind, this aspect of the evidence could have been better elucidated

and bolstered by a greater degree of specificity so as to justify an award for the requested

replacements and that responsibility was Simon’s. In the circumstances, I was prepared to allow

the prosthesis, with consideration for at least the fitting of 2 units and the cost of amputation in

the global sum of $1,601,500.00.

31. Simon claims for future domestic assistance consequent on the prosthesis as follows:

For amputation and recovery 3 months @$1,500.00 per month = $4,500.00

For prosthesis attachment surgery 3 months @$1,500.00 per month = $4,500.00

It was unclear why Simon seeks domestic assistance for 2 separate periods of 3 months after

amputation and after prosthesis attachment. There is no medical evidence that confirms or

clarifies this and it is disallowed.

of 19

Future loss of earnings

32. Simon is seeking loss of future earnings on the basis that he is unable to return to his previous or

any kind of work. The evidence of Dr Ramroop confirms that Simon is unfit to work due to his

right upper limb being non-functional. Prior to the accident, he worked on a rig where,

according to Mr Rambhajan there are no “light duties” available for persons with physical

challenges. Simon claims that he is a man of limited education, having left school in Form 4. It

would appear that he has been engaged in manual labour since, which is all he is qualified to do.

He gave evidence that prior to working in the oil industry, he worked in agriculture and now,

with his handicap and limited education, he is unfit for any type of work. Mr Roopnarine sought

to twin Simon’s case with the claimant in Wayne Wills v Unilever15, who was described as a

“‘career’ manual labourer” and an ‘effective cripple’ on the labour market. The Court of Appeal

went on to pronounce that it was difficult to see how any business will employ him “short of

charity” given his dearth of academic qualifications and predilection for manual labour. The

injuries and continuing disabilities of the claimant in Wayne Wills entitled him to an award for

future pecuniary loss. The claimant in Wayne Wills had some serious injuries to the spine,

unlike Simon whose injury was to the right dominant hand.

33. The medical evidence in the instant matter confirmed that Simon is without function below the

elbow in his right dominant hand. Dr Ramroop advised that Simon is only fit for light duties and

if no such work is available, he should be medically boarded. In his previous employment, there

is no such work available to constitute “light duties.” This was confirmed by Mr Rambhajan who

under cross examination stated categorically that to be employed in this industry; Simon must not

have any physical handicap. Mr Rambhajan’s evidence was not contradicted or weakened in any

way under cross examination so this court accepts that there were no “light duties” on a rig

available for Simon to do. He also could not return to agriculture given his handicap. This

evidence was not contradicted by TSTT and ALGICO and they have produced no evidence of

the kinds of light work that Simon would be able to do, given his condition and narrow level of

education, or that he could have been retrained but refused so to do. On the other hand,

Simon’s evidence is that he made no attempt to find any “light work” or alternative employment,

15 Wayne Wills v Unilever CA No 56 of 2009

of 19

given his lack of qualifications and inability to write or even hold a pen. In the circumstances,

there was no evidence before me that spoke to the availability of any type of “light work” for

Simon, given his penchant for manual labour and constricted educational attainment.

34. In Public Transport Service Corporation v Nerahoo Sookhoo16 Hamel-Smith JA stated that,

“[I]t is true that a man may be disabled for heavy work, that he has no talent for anything else and is unable to

find light work. Such a man has obviously lost all his earning capacity and it is only fair that he be compensated

on the basis of total loss.” Armed with this authority, Mr Roopnarine argued that Simon was a

“career manual labourer” now disabled from heavy work, with no education or talent for

anything else, unable to find “light work” and given his continuing challenges and circumstances

should get future loss of earnings using the traditional method of calculation. Simon was 35

years when the accident happened and at the date of assessment was 45 years. He was a

previously fit and healthy man and expected to be working until at least 60 years but his

retirement could have been beyond that date. He was also likely to be promoted to a supervisor

with the attendant increase in salary. Mr Roopnarine suggested a multiplier of 10 on the bases of:

Wayne Wills v Unilever17 - where the Court of Appeal awarded a multiplier of 12 to a

claimant who was 40 years as at the time of the accident.

Mario’s Pizzeria Limited v Hardeo Ramjit18 - where the Court of Appeal increased an

inordinately low multiplier of 5 to 9 for a claimant who was 49 years as at the time of the

assessment.

Persad & ors v Seepersad19 - where the Privy Council awarded a multiplier of 16 to a

claimant who was age 37 at the time of the assessment.

35. The starting point for the multiplier is the number of years during which the loss is likely to

endure, that is, the remaining period that Simon would have worked. This number is then

reduced to take into account contingencies of life such as illness, early retirement or

16 Public Transport Service Corporation v Nerahoo Sookhoo Civ App No 21 of 1993 17 Wayne Wills v Unilever CA No 56 of 2009 18 Mario’s Pizzeria Limited v Hardeo Ramjit CA 146 of 2003 19 Persad & ors v Seepersad HCA 76 of 1999/CA Nos. 136 & 137 of 2000/PC No 86 of 2002

of 19

unemployment and the fact that he is receiving a lump sum which can be invested. Applying the

learning in the authorities to Simon’s case, I considered it appropriate to use a multiplier of 8 and

his salary as a floor man of $24,188.10 (net) per month. Simon was employed on a contractual

basis from time to time so was not earning the same sums consistently throughout the year, I

have discounted this award by 40%, which will cover this and other contingencies of life. His

future loss of earnings is worked out as follows:

Multiplicand $24,188.10 x 12 (months) = $290,257.20 (annual net salary)

Future loss of earnings $290,257.20 x 8 = $2,322,057.60

Less 40% = $928,823.04

Total future loss of earnings = $1,393,234.56

Order

36. It is ordered that the defendants (TSTT and ALGICO) do pay to the claimant (Simon):

i. General damages in the sum of $200,000.00 (which is 2/3 of $300,000.00) with interest

at the rate of 9% per annum from 2nd February, 2006 to 8th October , 2015;

ii. Special damages in the sum of $725,339.08 (which is 2/3 of $1,088,008.62) with interest

at the rate of 6% per annum from 4th August, 2005 to 8th October, 2015;

iii. Loss of future earnings in the sum of $928,823.04 (which is 2/3 of $1,393,234.56);

iv. Future medical expenses of $1,067,666.67 (which is 2/3 of $1,601,500.00);

v. Costs as assessed in the sum of $197,482.15;

vi. Stay of execution 42 days.

Dated 8th October, 2015

Martha Alexander

Master

in the republic of trinidad and tobago in the high...

Documents