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

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV: 2014-01285

BETWEEN

THELMA WILLIAMS

EVERARD FRANCOIS Claimants

AND

GREVILLE JAMES Defendant

Before the Honourable Madam Justice Donaldson-Honeywell

Appearances:

Mr Kendell S. Alexander and Ms. Aisha Donawa for the Claimants

Mr. Gerard Gray and Ms Kathy-Anne Mottley for the Defendant

Delivered on October 21, 2015

JUDGMENT

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[1] Mrs Thelma Williams, [“the first Claimant”] a ninety-three year old retired seamstress

and her neighbour Mr. Everard Francois [“the second Claimant”] a retired school

supervisor aged eighty, seek damages for personal injuries they allege they sustained as a

result of the accidental collapse of a part of the wall around the first Claimant’s property

at 1A McShine Terrace, Gonzalves, Belmont. The wall fell on them on December 23,

2010. The Claimants by their Claim Form filed on April 11, 2014, herein, contend that

the collapse of the wall was caused by earth removal being undertaken in preparation for

construction by another neighbour Mr. Greville James [“the Defendant”] on his adjoining

property.

[2] The first Claimant says she was thrown to the ground by the unexpected fall of the wall

when she was inspecting it and sustained injuries to her left hand. The injuries sustained

by the second Defendant, who in an apparent act of chivalry had only visited the first

Claimant’s home in response to her urgent call to join her in looking at what was

happening regarding her wall, were far more severe. His right ear was severed, his right

heel was crushed and both his right and left ankles were severely injured when the wall

fell on him.

[3] There is no dispute that the Claimants sustained these injuries on December 23, 2010.

However in his defence filed on 31st July, 2014, the Defendant denies that the accident

was due to his negligence and alleges that the Claimants were responsible for their own

injuries through their own negligent action. In particular he alleges that the first Claimant

was negligent in not properly constructing and maintaining the wall, both Claimants

were negligent in standing close to the wall to examine cracks in it thereby placing

themselves in danger and they were also negligent in not taking proper precautions to

avoid being harmed. The Defendant further contends that the Claimants recognized the

inherent danger presented by the state of the wall but failed to protect themselves from

the obvious risk of injury.

[4] Though not admitting that he caused injury to the Claimants, the Defendant accepts that

they were injured and has not challenged their medical evidence. The quantum claimed

as special damages is, however, not agreed. The first and second Claimants have

received from him the sums of Four Thousand Dollars ($4,000.00) and Twenty-Two

Thousand Dollars ($22,000.00) respectively which he paid to them towards their medical

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expenses without admitting liability. Accordingly, the Defendant denies that the

Claimants are entitled to the reliefs sought against him.

Issues:

[5] The issues in the present case are as follows:

a. Whether the Defendant owed a duty of care to the Claimants and if so whether he

breached the duty of care.

b. Whether the injuries sustained by the Claimants were as a result of the negligence

of the Defendant, his agents and/or servants in conducting pre-construction earth

removal work on his property.

c. Whether the injury and/or damage suffered by the Claimants was foreseeable by

the Defendant as a being caused by the works being undertaken on his property.

d. Whether the injuries suffered by the Claimants were due, in whole or in part, to

their own negligence; and

e. Whether the Claimants are entitled to the relief claimed and if so what is the

quantum of damages to which the Claimants are entitled.

Evidence and Findings:

[6] Evidence-in-Chief by way of Witness Statements was presented by both Claimants and

they were cross-examined on their evidence. Though advanced in age the Claimants

were well-spoken and presented coherent, detailed evidence without undue difficulty in

fully recalling material details about an incident that had transpired some four years

before. They appeared to be in robust health save for the evident limp which the second

Claimant displayed when he walked with the aid of a cane to the witness box.

[7] The first Claimant’s evidence was that she and the Defendant are neighbours and share a

boundary wall. Under rigorous cross-examination she maintained that this wall was not

defective and was properly constructed by workmen she hired and with materials she

purchased. These construction materials included steel rods for reinforcement of the

wall.

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[8] The first Claimant testified that in December, 2010, the Defendant commenced

construction works on his property. This included excavation works with the operation

of a backhoe by workmen hired by the Defendant. On the 22nd

December 2010, the First

Claimant observed that the backhoe was packing dirt from the excavation onto the wall.

This caused a portion of the wall to crack and collapse onto her property. The first

Claimant, when challenged in cross-examination, was unshaken as to her ability to see

what was happening on the Defendants property, which was on a higher level and

blocked by the wall. The strength of her conviction on this point was clear in her

responses to the following questions posed by Counsel for the Defendant:

"Q: You indicated in your witness statement that you were able to see works

being done in the defendant’s yard?

A: Certain parts of his yard you could have seen. Not all over.

Q: His property is above yours?

A: Yes.

Q: There is a ten foot wall?

A: Yes.

Q. But you are telling the court you could see in his yard?

A: If I want to see in his yard I have a ladder. I can go up and see.

Q: You also indicated you saw a backhoe pulling dirt against the wall?

A: Yes.

P: Let me put it to you that at no material time you saw a backhoe pulling

sand against your wall?

A: I saw the backhoe working, digging down the hill. I don’t agree that at no

point I saw it pulling sand against the wall.”

I found the first Claimant to be a witness of truth as to her ability to see into the

Defendant’s yard for all practical purposes material to her Claim.

[9] The first Claimant further testified that on the same day, December 22, 2010 she tried to

contact the Defendant but he was not there at his property next door. When he arrived

she brought the concern about the dirt being pulled by his excavator against her wall and

cracks developing to the Defendant’s attention. He then took certain remedial steps to

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temporarily patch the wall with board and galvanize. However, despite the request from

the first Claimant to cease the packing of the dirt against the wall, the Defendant allowed

his workmen to continue to do so.

[10] On the 23rd

December, 2010 the first Claimant observed that cracks continued to develop

along a new part of the wall. She called to the second Claimant from next door and he

came over. She says they shouted at the backhoe operator to stop but he did not hear

them. The first Claimant testified that they were in the process of inspecting the cracks

when the wall collapsed. She says it fell on the second Claimant who was ahead of her

and pinned him against the house.

[11] Under cross-examination she said she also fell to the ground when “a few pieces of the

wall” that collapsed fell on her. This was a slight variation from her Witness Statement

where she said the wall collapsed on her. I did not find that her credibility was adversely

affected by this immaterial change in the wording of her evidence. She said both herself

and the second Claimant sustained injuries as a result. When cross-examined about

whether she told her doctor that she fell while running to help a neighbour the first

Claimant said that she did tell the Doctor that version of events.

[12] It was put to the first Claimant that by December 23, 2010 when she was examining the

wall it had become a safety hazard. She did not agree. In response to a hypothetical

question she admitted that she would not have allowed children to play near the wall

because it was unsafe. As regards to her own safety, however, she said she was not right

up against the wall inspecting it when the collapse occurred, she was inspecting from afar

about four feet away and the second Claimant was about three feet in front of her. She

said at the time she was inspecting the wall she did not think it was about to collapse.

[13] The second Claimant also testified in a forthright manner and I found him to be a witness

of truth. His testimony corroborated the account given by the first Defendant in all

material respects. The only differences in their accounts related to their own estimates of

measurement regarding the distance they were from the wall. However, the second

Claimant’s testimony confirmed that of the first Claimant that they were examining the

wall from what they thought was a safe distance they referred to as “afar”.

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[14] The second Claimant was also cross-examined about the danger posed by the wall and

why he ventured to examine it. The questions posed and his answers were as follows:

“Q: You agree in hindsight it wasn’t prudent to inspect the wall since you

observed cracks?

A: I went to inspect the wall. I don’t agree it is not wise to inspect a wall

with cracks.

……………………..

Q: You agree you saw the backhoe pushing dirt against the wall and a

likelihood that the wall would collapse?

A: I couldn’t determine that.

……………………………………………….

P: I put it to you that you are responsible for the injury received.

A: I would not put myself at risk.

Q: Notwithstanding Ms. Williams told you the day before there was a

collapse, you saw the backhoe pushing dirt on the wall, you saw a hairline

crack on the wall, you still saw it prudent to stand six feet from the wall?

A: Prudent is a key word. No one would put themselves at risk. I don’t

agree it was not wise to stand six feet from the wall”.

[15] My assessment from the second Claimant’s evidence was that in all the circumstances he

did not act without due care for his own safety in coming to the aid of the first Claimant

when her wall was in danger of collapsing.

[16] The Defendant by his demeanour under cross-examination impressed me as genuinely

remorseful about the injuries sustained by the Claimants. He admitted that he had hired

workmen for construction taking place at his property at the time of the accident and that

the work involved the use of a backhoe to dig dirt near the back of his property, close to

the first Claimants wall. Though he did not admit liability for the Claimants’ injuries he

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could not give an eye witness account as to how they sustained their injuries since he was

not at the property when his men were working there. He testified that he visited the

Claimants at the hospital on the day of the accident and thereafter took steps to contribute

money towards their expenses.

[17] The Defendant admitted under cross-examination that even before December, 2010 the

first Claimant had complained to him about dangers posed to her wall by his construction

activities. He further confirmed that after the first collapse of part of the wall on

December 22, 2010 the first Claimant complained to him again. He then stopped the

day’s work and agreed to put a temporary galvanize structure in place to prop up that part

of the wall.

[18] He admitted under cross-examination that after the temporary repair was in place the

evacuation work continued on December 23, 2010 in the same vicinity where the portion

of the first Claimant’s wall had collapsed. He said he did not warn his backhoe operator

to stop because of the prior collapse and he did not warn him not to push dirt on the first

Claimant’s wall.

[19] In his Witness Statement he claims that on the day of the first collapse he told the

Claimants not to go near the wall because “it seems to be weak”. This alleged warning to

the Claimants was however not included in his pleaded case. Despite his admission that

the wall seemed weak, the process of digging dirt continued, admittedly, without any

supervision from the Defendant as he said he was not present. He said, however, that he

did not, at any point prior to the accident, think that the operation of the heavy machinery

would cause the Claimant’s wall to collapse.

[20] He admitted that he made visits to the Claimants and paid them some money because he

saw a correlation between the construction on his property and what happened to the first

Claimant’s wall, which in turn caused injury to the Claimants. He also fixed the wall at

his own cost and claims that it was in so doing that his workmen informed him that the

wall had no iron-rod reinforcement. I prefer the first Claimant’s evidence, on this point,

as I found her to be a witness of truth speaking to her own knowledge of the fact that the

wall was constructed with iron-rods in it. Accordingly, the Defendants inference that she

may have been at fault in not having strong enough reinforcements in the wall to

withstand collapse is rejected.

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[21] On the basis of the evidence the Claimants have succeeded in establishing on a balance of

probabilities that the Defendant had a duty of care to them which was breached when

through his negligence the first Claimant’s wall was damaged. It is my further finding

that the injuries sustained by the Claimants were as a result of the negligence of the

Defendant, his agents and/or servants in conducting pre-construction earth removal work

on his property. It is also my finding from the evidence that the injuries suffered by the

Claimants as a result of the collapse of the wall were not only foreseeable but were

actually foreseen by the Defendant. He had ample warning and he knew that the damage

to the wall was a possible outcome as being caused by the works being undertaken on his

property. Injury to persons behind the wall was foreseeable because he knew that the

first Claimant resided at the property adjoining the wall. The possibility that she or her

visitors could be behind the wall was foreseeable.

[22] In the circumstances my findings of fact are in favour of the Claimants regarding the first

four issues considered in this case. Analysis of the law governing contributory

negligence is required in determining the fifth issue as to whether despite the

foreseeability to the Defendant that the wall would collapse and injure the Claimants, the

Claimants were at least partially responsible for their own injuries.

Law and Analysis on the Issue of Contributory Negligence:

[23] The Defendant’s case is that the Claimants were partly at fault for the injuries sustained

because having observed that a part of the wall had already collapsed and cracks were

forming along other parts of the wall, they should have prevented injury to themselves by

not standing too near to the wall. Essentially, the Defendant claims that some liability in

negligence for the damages claimed should be apportioned to the Claimants themselves.

[24] Section 28 (1) of the Supreme Court of Judicature Act, Chap. 4:01 governs the

apportionment of liability in cases of contributory negligence and states as follows:

“Where any person suffers damage as the result partly of his own fault

and partly of the fault of any other person or persons, a Claim in respect of that

damage shall not be defeated by reason of the fault of the person suffering

the damage, but the damages recoverable in respect thereof shall be reduced to

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such extent as the Court thinks just and equitable having regard to the Claimant’s

share in the responsibility for the damage.......”

[25] However, in order to establish contributory negligence the Defendant must prove that the

Claimants’ negligence was a cause of the harm which they had suffered in consequence

of the Defendant's negligence. It must be determined, therefore, on an examination of the

factual matrix, whether the acts of the Claimants amounted to negligence and that this

was a cause of the harm suffered.

[26] According to Halsbury’s1 :

“The standard of care in contributory negligence is what is reasonable in the

circumstances, and this usually corresponds to the standard of care in negligence.

The standard of care depends upon foreseeability. Just as actionable negligence

requires the foreseeability of harm to others, so contributory negligence requires the

foreseeability of harm to oneself.” [Emphasis added.]

[27] Foreseeability is, however, only part of the evidential matrix that is relevant for

consideration in determining whether negligent actions of a Claimant contributed to their

own injury. The other aspect that must be considered is whether the action taken by the

Claimants was prudent having foreseen the possibility of harm to themselves. This

consideration is eloquently stated by Lord Denning in Jones v. Livox Quarries Ltd

[1952] QB 608 where he said “a person is guilty of contributory negligence if he ought

reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he

might be hurt himself; and in his reckonings he must take into account the possibility of

others being careless.” [Emphasis added]

[28] Useful guidance on what is meant by prudence here can be found in the case of Sayers v

Harlow Urban District Council [1958] 2 All E. R. 342 cited by the Defendant in

written closing submissions filed herein. The facts of that case involved certain actions

taken by a Claimant to escape when she was confined in a toilet stall because of the

Defendants negligence. The Court in considering whether she was contributorily

negligent recognised that it was necessary to examine whether her actions were prudent

1 Halsbury's Laws of England > NEGLIGENCE (VOLUME 78 (2010)) > 5. APPORTIONMENT OF LIABILITY > (1)

CONTRIBUTORY NEGLIGENCE > 78.

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in the sense that they were reasonable actions to take in the circumstances. Morris, LJ

observed that “Defendants should be responsible for the direct and natural consequence

of their breach of duty. The most natural and reasonable action on the part of someone

who finds herself undersignedly confined is to seek the means of escape. Those who are

responsible for the unjustifiable detention can hardly, either with good grace or with

sound reason, be entitled to be astute in offering criticism for the actions of the

unfortunate victim.”

[29] Following on the learning gleaned from the authorities, a two stage analysis is required to

determine whether the Claimants here were contributorily negligent. The first question is

whether they could reasonably have foreseen that the wall could collapse and injure them.

In written closing submissions the Claimants’ attorneys underscored that the Claimants

were truthful in their evidence when they said that although a part of the wall fell the day

before they did not foresee that any more would fall at the time they were examining it on

the 23rd

of December. It was further argued that they could not reasonably assess how

soon more of the wall would fall because unlike the Defendant they could not see the

excavation work fully from the first Claimant’s side of the wall.

[30] It is my finding, however, that the collapse of the wall was in fact foreseeable and it was

a risk the Claimants were aware of. It was for this reason that they claimed they made

sure to observe the wall from afar. However, I accept the Claimants evidence that while

the Defendant would be in a position to know exactly what events were taking place on

the other side of the wall it was not clear until the eventual collapse that dirt was still

being piled against the other side. Therefore, the foreseeability factor for the Claimants

was reduced.

[31] The second question must be considered before deciding whether the Claimants were

negligent. The Court must consider whether the action they took was reasonable and

flowed naturally and reasonably from the Defendant’s breach of duty of care. I find that

it did. The most natural and reasonable thing for the first Claimant and the second

Claimant who came to her aid, to have done in the crisis where they felt the wall was in

danger of being further damaged was to examine it and call out to the workmen to stop.

The Defendant, as the person fully responsible for undermining the first Claimant’s

property, should not be entitled to evade liability by criticising the first Claimant and her

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neighbour for doing what was natural and reasonable in the moment of crisis that he

caused.

[32] Halsbury’s explains: “If the negligence of the Defendant puts the Claimant in a position

of imminent personal danger then conduct by the Claimant which in fact operates to

cause harm to him, but which is nevertheless reasonable in the agony of the moment,

does not amount to contributory negligence.”2

[33] The legal position is further explained in Clerk and Lindsell on Torts (19th

Ed.) (at para.

3-63) as follows:

“Where the conduct of the Defendant has placed the Claimant in personal

peril he may be found to have taken reasonable care for his own safety in

the “agony of the moment” albeit hindsight shows that he would have been

safe had he act differently. Provided that he acted reasonably in the

emergency or dilemma created by the Defendant’s wrong doing, his

conduct will not amount to contributory negligence.”

[34] The actions of the Claimants in examining the wall may be considered reasonable as they

were observing damage to the first Claimant’s own property. The case of Osborne v

The London and North Western Railway Company (1888) 21 Q.B.D. 220 examined a

situation where the Claimant was aware that there was a risk of harm. The evidence in

that case was that the Claimant knew that certain steps were slippery and dangerous, but

thought that he could descend safely by using the handrail even though there were other

steps that could have been used. The Court found that the Claimant did not have

knowledge of the full nature and extent of the danger and therefore did not voluntarily

agree to incur the harm done.

[35] Likewise, in the present case the Claimants observed the cracks in the wall but indicated

that they stood approximately five feet away from it in order to avoid danger. They

therefore undertook precautions to ensure they were not harmed.

[36] In the local Court of Appeal decision of Tajo Beharry v BWIA International Airways

Ltd CIVIL APPEAL NO. 27 of 2003, the court considered a case where the Appellant,

2 Halsbury's Laws of England > NEGLIGENCE (VOLUME 78 (2010)) > 5. APPORTIONMENT OF LIABILITY > (1)

CONTRIBUTORY NEGLIGENCE > 78.

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a flight engineer of the Respondent Company, was injured by hydraulic fluid entering his

eye while under a plane. The Appellant was concerned about a leak under the plane and

went on his own to check it. However, while he was conducting an inspection under the

plane, a jet stream of hydraulic fluid went into his eye as a result of the system being

pressurized. The Respondent was in breach of its duty of care in failing to ensure no one

was in the area when the system was being pressurized and the main question to be

resolved was whether the Appellant himself was negligent in going under the plane to

inspect it. It was determined that although the Appellant would have known there was

some danger in the event that the fluid could come into contact with his eye when he

went under the aircraft, he was not aware of the risk of the fluid being pressurized and

shot into his eye. It was therefore held that the failure of the Respondent to warn the

Appellant of the pressurization was the cause of the injury and the Appellant, not being

aware of such, was not contributorily negligent in his actions.

[37] Similarly, it can be considered reasonable in the present case for the Claimants to inspect

the wall, not knowing the extent of the activity occurring behind the wall. Further, the

Claimants did take steps to avoid danger in standing approximately five feet away from

the wall while inspecting it. In fact the second Claimant alluded in evidence to the fact

that if he had not been prudent in standing as close to the first Claimant’s house and

reasonably far from the wall, it would have collapsed entirely on top of him and killed

him. Instead, due to his prudence, it only collapsed onto his lower limbs and pinned him

to the wall of the first Claimant’s house. Thus, it is apparent that the Claimants’ conduct

was reasonable in the circumstances and it is my finding that they have not contributed to

the damage caused by the negligence of the Defendant.

Assessment of Damages:

[38] The final issue for determination is the quantum of damages to be awarded. The

Defendants have not admitted the sums claimed under the head of “special damages”, but

the Claimants have annexed documentation showing all expenditure claimed and this

evidence was unshaken under cross-examination.

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[39] There remains to be determined therefore, only the sum to be awarded as general

damages for personal injuries. The first Claimant was eighty-eight years of age and the

second Claimant was seventy-six years of age at the date of the accident.

[40] General damages are damages presumed by law to flow from the wrong committed by

the Defendant, as the direct, natural and probable consequences of it. [See paragraph 13

of Mario’s Pizzeria Ltd v Hardeo Ramjit Civ. App. No. 146 of 2003 delivered on

November 15, 2006]. It is the loss to the Claimant that cannot be precisely quantified,

namely past and future non-financial loss and future pecuniary loss. Generally, to assess

general damages, the principles set out in Cornilliac v St Louis (1965) 7 W.I.R. 491 at

page 492 G-H are applied and the court will assess the following heads of damages:

a. The nature and extent of the injuries sustained;

b. The nature and gravity of the resulting physical disability;

c. The pain and suffering which had to be endured;

d. The loss of amenities suffered; and

e. The extent to which the plaintiff’s pecuniary prospects have been materially

affected.

[41] On the evidence before me the first Claimant’s injuries are much less severe than those of

the second Claimant’s. The first Claimant has suffered a fracture of her left wrist, forcing

her to wear a cast for six weeks. There are no details in evidence of the severity of the

pain suffered or any loss of amenity experienced as a result. Therefore, the only

considerations under the heads outlined above would be the nature and extent of injury.

This would entail the usual experiences involved in the initial fracture and recovery of the

wrist for six weeks. There is no medical evidence of lasting disability. The first

Claimant was not employed and therefore there is no real impact on pecuniary prospects.

The award of general damages should reflect the nature of the injury and therefore would

not be too high in light of its temporary nature. The Claimants cited the following

awards in support of an award of Fifty Thousand Dollars ($50,000.00) to Sixty Thousand

Dollars ($60,000.00):

a. Naipaul v Marcano HCA 2414/1971 where the Plaintiff was a taxi driver who

suffered a colles fracture of left radius and bruising of the right quadriceps

muscle and was awarded Two Thousand Dollars ($2,000.00) in general damages,

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adjusted to Fifty-Four Thousand, Seven Hundred and Seventy-Two Dollars

($54,772.00) as at December, 2010.

b. Thackordeen v Hart HCA 74/1970, where the Plaintiff sustained a colles fracture

of the right radius with resulting shortening of the radius, weakness of grasp and

was awarded Nine Hundred Dollars ($900.00), adjusted to Twenty-Six Thousand,

Five Hundred and Forty-Eight Dollars ($26,548.00) as at December, 2010.

c. Bayo v Holiday Foods Ltd HCA 1008/1978, where the Plaintiff sustained a

fracture of the midshaft of the ulna and was awarded Two Thousand Dollars

($2,000.00), adjusted to Twenty-Two Thousand, Six Hundred and Eighty-Four

Dollars ($22,684.00) in December, 2010.

[42] The facts of Patrick v PTSC TT 1974 HC 15 are also comparable with the present case.

In that case the Plaintiff was awarded Seven Hundred and Fifty Dollars ($750.00); as

adjusted to December, 2010 to Fourteen Thousand, Nine Hundred and Thirty Dollars

($14,930.00). Considering the nature of the injury suffered and its temporary nature, an

award more in line with the cases of Patrick v PTSC and Bayo v Holiday Foods is

justified in the present case.

[43] Further, Lord Carswell in Seepersad v Theophilus Persad and Or [2004] UKPC 19

cautions that:

“The Board entertains some reservations about the usefulness of resort to awards

of damages in cases decided a number of years ago, with the accompanying need

to extrapolate the amounts awarded into modern values. It is an inexact science

and one which should be exercised with some caution, the more so when it is

important to ensure that in comparing awards of damages for physical injuries

one is comparing like with like. The methodology of using comparisons is sound,

but when they are of some antiquity such comparisons can do no more than

demonstrate a trend in very rough and general terms.”

[44] I have therefore considered two more recent cases:

a. Kent Hector v. Indranie Bhagoutie and Re-insurance Company, HCA No. S-

1115 of 2000, a decision of Kokaram, J. in June, 2006 where the Plaintiff was

awarded Nineteen Thousand Dollars ($19,000.00) for minor pain in his neck

and right shoulder; and

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b. Lodai v Rampersad & Ors CV2010-01217 a decision in March, 2014 where the

Plaintiff was awarded Fifty Thousand Dollars ($50,000.00) for a compound

fracture of the midshaft of the left tibia and left fibula; lacerations to his

forehead, his right and left knee and an abrasion deformity of his left leg. In this

case the Plaintiff’s leg was placed in a cast and he was assessed with 15%

permanent partial disability. The Plaintiff also experienced occasional pain and

stiffness in the leg and loss of amenities.

[45] A comparison with the case at hand would show that the first Claimant’s injuries are

much less severe than those in Lodai and that the first Claimant has not shown that there

are any lasting effects of the injury. The wrist appears to have healed well and the pain

suffered is limited to that experienced in the healing process. Therefore, in light of the

above considerations, an award of Twenty Thousand Dollars ($20,000.00) to the first

Claimant would be just.

[46] The second Claimant sustained a laceration to his right ear, compound comminuted

fracture of calcaneal with Lisfranc fracture, dislocation of the right foot and bimalleolar

fracture of the left ankle. He underwent two operations, one on the right ankle and the

other on the left which was fixed with a plate and screws. He was made to wear a cast on

his right leg and stabilising pins were kept inserted therein for six months. When the cast

was removed he was required to do physiotherapy, walk with the assistance of a

cane/walker and to partial weight-bear on his right leg. He remains an outpatient at an

orthopaedic clinic.

[47] The Claimants claim general damages for the second Claimant in the sum of Three

Hundred and Fifty Thousand Dollars ($350,000.00) and have cited cases from 1960 to

1975. However, I am minded to consider the more recent cases with similar fact

circumstances as follows:

a. Harewood v Trading and Distribution Limited CV 2007-02359 where an

MRI scan revealed a torn post-cruciate ligament of the right knee and the

Claimant was assessed as suffering a 25% permanent partial disability. In

that case, the Claimant was administered four steroid injections on different

occasions to alleviate the pain and advised of the possibility of future surgery to

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correct the cruciate ligament. The award in respect of general damages was

Seventy-Five Thousand Dollars ($75,000.00).

b. Johnson Ansola v Ramnarine Singh, Ganesh Roopnarine and the Great

Northern Insurance Co Ltd Civil Appeal No: 169 and 121 of 2008 where a

forty-six year old Plaintiff who was a passenger in a vehicle sustained a severe

comminuted compound fracture of the right lower tibia and fibula, a right

talar dislocation and a right shoulder dislocation. There was a diminished

range of motion of his right ankle and he complained of severe pain in the right

ankle and pain in the right tibia and fibula. He was unable to stand for long

periods and had to use a stick to move around because of his injuries.

Operation of the right ankle was advised as a requirement to correct these

problems and relieve pain. Permanent partial disability was assessed at 30%

which could be reduced by 10% if surgery is performed. He was awarded

general damages for pain and suffering and loss of amenities of One Hundred

and Fifty Thousand Dollars ($150,000.00) (as adjusted to May, 2010 to One

Hundred and Seventy-Eight Thousand, Two Hundred and Forty-Seven Dollars

and Forty-Two Cents ($178,247.42)).

c. Marvin Raymond Lyons v Sherlon Caseman and Ors CV2008-03126 where the

Claimant suffered multiple injuries including posterior dislocated hip;

compound comminuted fracture of the right tibia; compound fracture of

medial left malleolus; comminuted fracture of the right acetabulum; and soft

tissue chest injury. Consequent on these injuries, he led evidence that he

suffered with pains in the right hip; right leg; left ankle on walking;

stiffness in the right hip; diminished external rotation and abduction by one

hundred in the right hip and diminution in the dorsi flexion by one hundred of the

left ankle. He underwent several surgical procedures. His right leg was strapped

to weights and his left ankle was placed in a back slab. There was infection in the

shin area for which he was prescribed antibiotics and a further surgery took

place on the ankle. He was awarded One Hundred and Eighty Thousand

Dollars ($180,000.00) in general damages in September, 2013.

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d. The Claimant in Spann v Balkissoon Claim No. CV 2011-00140 was diagnosed

with the following injuries: Grade III open fracture right medial and lateral tibial

plateaus, framed right patella, 20 x 5 cm laceration to proximal tibia, grade II

open fracture left tibial plateau 12 x 3 cm laceration, and laceration to dorsum

left hand. She underwent bilateral open and internal fixation of both tibial

plateaus and right patella using peri-articular plates and screws. She also

had a screw fixation of the right patella augmented with cerclage wires. Synthetic

bone graft was used. It is clear that whilst initially her injuries presented

challenges which were “stormy” her wounds eventually settled, the fractures

united, she was weight bearing by December, 2009 and mobilizing with a

walking frame by April, 2010. There was clearly no untoward resulting

disability. She was awarded Two Hundred Thousand Dollars ($200,000.00) in

general damages in 2014.

e. Kanhai v Mohammed & Ors CV 2006-01087 where the award as adjusted

to December, 2010 was Three Hundred and Nine Thousand, Six Hundred and

Twenty-Two Dollars ($309,622.00) for a seventeen year old woman who

suffered fractures of tibia and fibula of both legs, surgeries, legs of

different lengths, continuing pain and a scarred leg.

f. In Natainia Brown v Sigma Car Dealers & Ors Claim No. CV 2008-

00136/HCA S-1145 of 2005 a Claimant who had suffered severe trauma to her

hip region and right ankle; facial, leg and knee lacerations; a fractured clavicle

at the junction of the middle and distal third and deformity over the right

clavicle; swelling of the left proximal thigh with lower limb shortened and

externally rotated; fractures of the left femur and of the medial malleolus

and of the talus; had a plaster cast inserted below the right knee and a

Steinmann pin inserted to the left proximal tibia; was the recipient of

blood transfusion; underwent several surgeries; right ankle showed antero

lateral subluxation of the talus; pain and deformity of the right ankle with

difficulty walking; walks with a permanent limp and used a walking stick because

of limited mobility. She also experienced breathing difficulties and chest pains

while walking, restricted movement of the right arm, nasal pain and discomfort

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while sleeping; and scarring and a diminished sex life. She spent three weeks

immobilized in hospital and received eight pints of blood. She was awarded Two

Hundred and Eighty Thousand Dollars ($280,000.00) for non-pecuniary losses in

2012.

[48] Upon comparison of these cases with the present one, I have concluded that the case of

Spann v Balkissoon is the one that assesses injuries most similar to the injuries sustained

by the second Claimant. The Claimant in that case suffered similar fractures and

underwent surgical operations involving screws and pins much like the present case.

There was also no evidence of permanent disability although she was obligated to use a

walking frame for some time. As a result of these similarities, an award of Two Hundred

Thousand Dollars ($200,000.00) to the second Claimant would be just in the present

circumstances.

[49] Further the cases of Natania Brown and Kanhai Mohammed cited by the Claimants

involved injuries to several body parts with lasting disabilities. It is clear to me that the

sums awarded in those cases would not be suitable in the present situation to the second

Claimant.

Disposition:

[50] It is hereby ordered that:

i) There be judgement for the Claimants.

ii) The Defendant do pay to the first Claimant damages as follows:

General Damages in the sum of Twenty Thousand Dollars ($20,000.00) less Four

Thousand Dollars ($4,000.00) received from the Defendant together with interest

at the rate of 6% per anum from the date of service of the Claim Form until the

date of judgment and thereafter, at the rate of 12% per anum from the date of

judgment until payment.

Special Damages in the sum of One Thousand, Six Hundred Dollars and Twenty-

Four Cents ($1,600.24) together with interest at the rate of 6% per anum from the

date of service of the Claim Form until the date of judgment and thereafter, at the

rate of 12% per anum from the date of judgement until payment.

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iii) The Defendant do pay to the second Claimant Damages as follows:

General Damages in the sum of Two Hundred Thousand Dollars ($200,000.00)

less Twenty-Two Thousand Dollars ($22,000.00) received from the Defendant

together with interest at the rate of 6% per anum from the date of service of the

Claim Form until the date of judgment and thereafter, at the rate of 12% per anum

from the date of judgement until payment.

Special Damages in the sum of Twelve Thousand, Four Hundred and Twenty-one

Dollars and Eight Cents ($12,421.08) together with interest at the rate of 6% per

annum from the date of service of the Claim Form until the date of judgment and

thereafter, at the rate of 12% per annum from the date of judgment until payment.

iv) Costs to be paid by the Defendant to the Claimants as prescribed based on total

damages of Two Hundred and Eight Thousand and Twenty-One Dollars and Thirty-

Two Cents ($208,021.32) in the sum of Forty-Three Thousand, Seven Hundred and

Three Dollars and Nineteen Cents ($43,703.19).

Eleanor J. Donaldson-Honeywell

Judge

Assisted by: Christie Borely

Attorney-at-Law

Judicial Research Counsel

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