THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV 2009-00561 (763/2005)

BETWEEN

MAUDE CONTANT Claimant

AND

ALVIN CRITCHLOW

THE BEACON INSURANCE COMPANY LIMITED THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

NORTHWEST REGIONAL HEALTH AUTHORITY ROWAN CUMMINGS

TRINIDAD AND TOBAGO INSURANCE LIMITED Defendants

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

Before Master Patricia Sobion Awai

Appearances:- Mr. A. Mohammed for the Claimant No appearances for the 1st, 2nd and 3rd Defendants Mr. McKell for the 4th, 5th and 6th Defendants

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Background

1. On March 8, 2001, Maude Contant, a Registered Nurse, was

seated at the back of an ambulance which was at a

standstill near the traffic lights at the Morvant Junction

when it was struck by a vehicle from behind. She sustained

personal injuries. At the time of the accident she was 36

years old.

2. Judgment on liability was obtained against the First,

Fourth, Fifth and Sixth Defendants.

The Decision

3. Having considered the evidence and arguments, I made the

following order:

i. Special damages are assessed in the sum of $6,950.00

with interest at 6% per annum from April 8, 2001 to

today;

ii. General damages are assessed in the sum of

$100,000.00 with interest at 12% per annum from

March 24, 2005 to today;

iii. Future medical expenses are assessed in the sum of

$153,300.00 with no interest; and

iv. The defendants shall pay the Claimant’s costs on a

prescribed costs basis.

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The Evidence

4. Two witnesses were called on behalf of the Claimant: the

Claimant herself and Dr Santana. They were both cross-

examined. Two medical reports of Dr Toby were also put

into evidence.

The Claimant

5. When the accident occurred, Maude Contant was thrown

forward and felt immediate pain and swelling in her lower

jaw and neck. She was taken to the Casualty Department at

the Port of Spain General Hospital where she was given

painkillers to be taken twice daily, and was then

discharged.

6. She visited Dr Toby in late April 2001 and he prescribed a

cervical collar which she wore for approximately six months

after which she did physiotherapy for two months at the

Sangre Grande General Hospital.

7. She was on paid sick leave for six months, resuming work on

October 15, 2001. Upon resumption of duties she was shifted

from the Casualty Department at the Port of Spain General

Hospital to St James Medical Complex as she could not

physically handle the intense work load. There was no

change of salary.

8. She commenced studies in 2008 leading to a Bachelor of

Science Degree in Oncology Nursing in August 2010. This

qualification entitled her to become a Specialised Oncology

Nurse earning an increase in salary. As an Oncology

Nurse, her job involved administering chemotherapy to

patients and generally assisting patients. The work

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involved a lot of walking and standing and on most days due

to the demands of her job, she went without lunch or a

break and had to be “hustling and brisk in dealing with

patients”. However during the night shift, she would have

to sit for long hours as a result of which her back pain

increased.

9. Maude Contant expressed a desire to retire because of the

pain and restrictions she felt at work. She claimed that

she was doing a disservice to her employer and to the

patients as she was unable to lift patients and had to call

other nurses and attendants to assist her.

10. At the time of the assessment, she continued to experience

pain and had to take painkillers and use muscle rubs

regularly for relief. She felt that she could not jog, do

aerobics, dance, swim or hike. She had difficulty

sleeping. She experienced difficulty at home doing her

chores and was heavily dependent on her children to assist

with the housework.

Dr Santana

11. Dr Santana stressed that he saw Maude Contant for the

purposes of assessment rather than treatment. He prepared

three reports in 2007, 2011 and 2012 respectively.

12. In his first report dated July 24, 2007, Dr Santana noted

that Maude Contant complained of pain in the neck, a

pressing sensation on the left shoulder, back pain and

numbness in the hands. He gave a diagnosis of chronic

whiplash with a permanent partial disability of 15%. He

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referred her for an MRI. The MRI report dated July 31,

2007 gave the following opinion:-

(1) Loss of cervical lordosis;

(2) C2-3 to C4-5 levels: minimal disc bulge with no neural

compression;

(3) C5-6 level: diffuse disc bulge with mild propensity

to right indenting thecal sac with no neural

compression; and

(4) C6-7 level: diffuse disc bulge with posterior right

paracentral propensity indenting thecal sac with no

neural compression.

13. In his second report dated July 21, 2011, Dr Santana noted

that Maude Contant reported that her symptoms had worsened.

She complained, inter alia, of pain in the chest and back,

numbness in two fingers and weakness in the right upper

limb. Dr Santana opined that in a significant percentage

of cases chronic whiplash became worse with time and he re-

assessed her permanent partial disability at 20%.

14. In his third and final report dated November 29, 2012, Dr

Santana said that her symptoms had worsened. His

examination revealed weakness of the entire left upper

limb, but sensation was normal. He referred to the 2007

MRI report stating that the findings were consistent with

her symptoms. Permanent partial disability assessment was

revised upwards to 25%.

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15. In his oral examination in chief, Dr Santana indicated that

his permanent partial disability assessments were really

based on the Workmen’s Compensation Act and as such did not

take into account differences in profession. In the case

of Maude Contant, he proffered that her disability

assessment would really be between 70% and 75% insofar as

her ability to function as a registered nurse was

concerned. In his opinion, within five years she might

have problems actually working at all.

16. He said she was unable to play sports, do aerobics, run or

jump. However she could do swimming.

17. Though he did not state it in his reports, Dr Santana

recommended that a painkiller, Acoxia, be taken once a day

and another drug called Losec be taken twice daily. He

said that if her pain continued to worsen, surgery would be

recommended. He also recommended physiotherapy.

18. When questioned as to why he did not make mention of

physiotherapy or any other medical treatment in his

reports, Dr Santana stated that those matters were not in

his remit as Maude Contant had come to him for assessment

of her injury, not for treatment.

19. He indicated that chronic whiplash was a significant injury

and he knew that it was so because he himself had it.

20. While being examined in chief he said he found Maude

Contant medically unfit for work, under cross-examination,

he admitted that it was not impossible for Maude Contant to

perform her duties. He did not disagree when it was put to

him that with a course of physiotherapy, any difficulty she

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experienced might be alleviated. That he said was the goal

of physiotherapy but it did not always occur.

Dr Toby

21. In his report dated October 2, 2001 Dr Toby’s diagnosis was

severe whiplash injury. A cervical collar, medication and

extensive physiotherapy were prescribed. Maude Contant had

some residual neck pain and permanent partial disability

was assessed as 10%.

22. In his report dated August 8, 2003, some 2 years and 4

months after the accident, Dr Toby found that she still had

painful symptoms. Her condition though stabilized was now

chronic and permanent partial disability was assessed as

12%.

Analysis

23. At the time of the assessment, it was evident that Maude

Contant still experienced painful symptoms. However she

had successfully managed her condition through the years.

Apart from her stated desire to retire early, there was no

evidence that Maude Contant was unable to perform her work

as a registered nurse competently. On the contrary, she

had managed to complete a degree in 2010 and was promoted

to be a specialist oncologist nurse earning a higher

salary. The problems she experienced in the workplace

appeared to be surmountable insofar as she took medication

for the pain and she sometimes called upon other nurses and

attendants to assist her.

Page 8 of 18

24. Her academic achievement when considered with the absence

of adverse reports from her employer concerning the

performance of her duties or absenteeism, the failure of

her employer to refer her to a medical board to consider

her fitness for duty and the absence of medical reports

relating to her treatment after 2003 made it unreasonable

to conclude that the claimant’s injuries prevented her from

performing her duties in a satisfactory manner or that she

would be forced to retire early.

25. Dr Santana was the only doctor who was called to give

evidence. I was dissatisfied with his evidence for several

reasons. Dr Santana purported to give permanent partial

disability assessments of 15%, 20% and 25% respectively in

his written reports but in his oral evidence, he claimed

that Maude Contant’s disability was in the order of 70% to

75%. In his opinion, she should have been medically

boarded. His explanation for the disparity between the

figures in his oral assessments and those in the written

reports was that the latter were based on the Workmen’s

Compensation Act. I noted that there was no reference to

the Workmen’s Compensation Act in the reports. Moreover,

an assessment of 70% to 75% permanent partial disablement

suggested that Maude Contant would not be able to perform

most of her duties as a nurse yet she had been continuously

working as a registered nurse since the date of the

accident. With such an elevated disability assessment,

her performance ought to have been markedly unsatisfactory

yet there was no objective evidence of that. The last

medical examination conducted on November 29, 2012 revealed

one significant problem, namely, weakness of the entire

left upper limb. No new MRI report was relied on to

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confirm a worsening of Maude Contant's condition. Having

regard to the inconsistent disability assessments, Maude

Contant's continued performance of her duties throughout

and the lack of scientific support for the medical

findings, I concluded that Dr Santana's evidence was

generally unreliable.

26. The doctor’s statement that he knew chronic whiplash to be

a significant injury because he himself had it might have

raised a question as to his objectivity. However in his

report of July 21, 2011 he did indicate that chronic

whiplash “runs a variable course”, which I took to mean it

affects each person differently.

27. With respect to Dr Toby’s reports, this evidence was useful

for the period immediately after the accident until August

8, 2003, the date of the second report. That report

indicated that the claimant still had painful symptoms and

her condition though stabilized was now chronic.

General Damages (non pecuniary)

28. Using the principles set out in Cornilliac v St Louis 7 WIR

491, I considered the circumstances of the claimant's case.

Nature and extent of the injury

29. Shortly after the accident on March 8, 2001, Maude Contant

was diagnosed with severe whiplash.

30. After two years and four months, she continued to have

painful symptoms though her condition had stabilized. She

was then diagnosed with chronic whiplash.

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31. The MRI report dated July 31, 2007 revealed the following:

(1) Loss of cervical lordosis;

(2) C2-3 to C4-5 levels: minimal disc bulge with no neural

compression;

(3) C5-6 level: diffuse disc bulge with mild propensity

to right indenting thecal sac with no neural

compression; and

(4) C6-7 level: diffuse disc bulge with posterior right

paracentral propensity indenting thecal sac with no

neural compression.

Resulting Physical disability

32. Based on the unreliability of the medical evidence, the

claimant's resulting physical disability was uncertain.

33. Dr Toby who treated Maude Contant after the accident, found

in that her condition had stabilized though she continued

to experience painful symptoms. He assessed her permanent

partial disability at 12%. However Dr Toby did not give

evidence and therefore there was no explanation as to how

he arrived at that figure and what it meant in practical

terms.

34. Dr Santana who saw her in 2007, 2011 and 2012 for the

purposes of assessment only gave disability assessments of

15%, 20% and 25% respectively. At the hearing, he said

these figures related to Workmen's Compensation and he

sought to revise those figures upwards to 70% to 75% to

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take into account her functions as a registered nurse. As

noted above, I found his evidence in that regard to be

unreliable and

35. On the issue of disability assessments, I was guided by the

recent Court of Appeal decision in Dennis Peter Edwards v

Namalco Construction Services Limited and Guardian General

CA 28 of 2011. Having noted that the medical report in

question simply stated that the appellant was 90% disabled

the court held as follows at paragraphs 13 and 14 of the

judgment:

"[The medical report] does not give any scientific or

factual basis for that opinion. In Davie v Edinburgh

Magistrates 1953 SCC4, (approved and applied in Edmund

& Ors v Ralph Morris Mag. App. 5 of 1973) Lord Cooper

set out the role of expert witnesses in relation to a

tribunal of fact:

Their duty is to furnish the court with the

necessary scientific criteria for testing the

accuracy of their conclusions, so as to enable

the judge or jury to form their own independent

judgment by the application of those criteria to

the facts proved in evidence.

In my view the medical report was insufficient to discharge

the evidential burden placed on the Appellant. It did not

state the factual basis on which the opinion was premised.

It does not assist the court in assessing the extent of the

Appellant's alleged disability."

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36. I found that the medical reports lacked factual and

scientific bases for the disability assessments and Dr

Santana's oral evidence was also inadequate in this regard.

For instance, he did not indicate what nursing duties Maude

Contant could still perform and what she no longer could

do.

37. Apart from the medical evidence, I considered the evidence

of Maude Contant herself as to her disability. She said

she could no longer perform ambulance duties but given her

new position as an oncology nurse such duties are not

required. She had difficulty moving her neck at the normal

speed and could not raise her arms properly. On the one

hand she said she was unable to perform basic tasks such as

lifting patients, walking for long or hustling: paragraph

15 of her witness statement refers. On the other hand,

she said that on most days she went without lunch or a

break and had to be hustling and brisk in dealing with

patients: paragraph 9 of her supplemental witness statement

refers. Additionally, she would experience difficulty

while working the night shift as she had to sit for hours

which aggravated her entire back. It was not clear why

this latter problem could not be resolved by standing or

walking from time to time during the night shift.

38. It was significant that her physical disability did not

prevent her from successfully pursuing a B.Sc. Degree

during the period 2008 to 2010 though she indicated that it

was very difficult to study for periods in excess of one

hour without needing a break.

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39. At home, she had problems doing housework such as cleaning,

cooking, mopping, scrubbing, cobwebbing and changing

curtains and had to depend heavily on her children to

assist her.

Pain and suffering

40. At the time of the accident, Maude Contant suffered severe

pain and swelling in her lower jaw and neck. She wore a

cervical collar for six months.

41. The neck pain continued over the years. She described her

current condition at paragraph 12 of her supplemental

witness statement as follows:

At present I endure constant daily moderate pain from

my neck radiating down my back and to my legs. On most

days due to the movements and pressure at work this

pain becomes severe and it brings about headaches.

These headaches last for about 2-3 hours and happens

mostly when I am at work.

40. She used medication, namely Arcoxia 120 mg and Losec 20 mg,

for relief from her pain. She also used muscle rubs.

Loss of amenities

42. Before the accident, Maude Contant would jog and do

aerobics daily. She was unable to do those activities any

longer. Her social life was affected because she could not

go dancing or be involved in activities such as swimming,

hiking or romping with her children. However Dr Santana

did not agree that she could not swim.

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Caselaw

43. Both parties cited cases from this jurisdiction as a guide

in making the award for general damages in this case.

44. The claimant’s attorney cited the following cases:

Trinidad Transport Enterprises Limited v Layne CA 10/1971

Rattan Deyalsingh v The Mayor Aldermen and Citizens of the

City of Port of Spain HCA 2341/1979

Hakim Ali v Lal Hasranah HCA 1483/1976

Evans Moreau v Port Authority HCA 3958/2006

Harold Ramdoolar v Daniel Boodoo HCA 710/1973

A. Pemberton v Hi-Lo Food Store Ltd HCA 6039/1988

The awards in the above cases ranged from $12,000 to

$200,000, without adjustments and from $209,828.00 to

$350,970.00 adjusted to December 2010.

45. In Peter Seepersad v Persad (2004) 64 WIR 378, the Privy

Council expressed reservations about the usefulness of

relying on damages in cases decided many years ago which

need to be updated into modern values. Lord Carswell

stated:

"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."

46. Some of the cases cited by the defendant were of more

recent vintage. They were as follows:

Griffith v Cunningham HCA 839/1998

Pemberton v Y de Lima Co Ltd HCA 2012/1987

Page 15 of 18

Kent Hector v Indranie Bhagoutie and Reinsurance Company

HCA S-1115/2000

Olive George v Sherwin Taitt, Marie Pilgrim and Motor and

General Insurance Company Limited CV2007-106

Gillian Roxanne Isaac v Shaun Solomon and Motor and General

Insurance Company Ltd CV2007-4400

These awards ranged from $19,000.00 to $40,000.00.

47. In addition to the cases cited by the parties, I considered

the following cases in which the injuries appeared to be

comparable to those suffered by this claimant:

Hills v Thom and AG CV3268 of 2009

Dexter Sobers v The Attorney General CV2008-4393

Ann Marie Redman v Hilary Samuel CV2007-2664

Dayal Moonsammy v Rolly Ramdhanie and Capital Insurance HCA

2316 of 2001

These awards varied from $75,000.00 to $100,000.00.

48. In all the circumstances, I considered the sum of

$100,000.00 to be a fair award for general damages in this

case.

General Damages - Pecuniary Losses

(a) Future Loss of earnings

49. Maude Contant said she was doing a disservice to employer

and to patients as she was sometimes unable to lift

patients and has to call other nurses and attendants to

assist. Despite her anxiety about her job performance,

there was no evidence that her performance was below par or

that her employers were in any way dissatisfied.

Page 16 of 18

50. Dr Santana in chief expressed the view that within five

years Maude Contant might have problems working. Under

cross-examination he said that if he had to take a decision

as to when she should be boarded as medically unfit, he

would do so at the present time.

51. In Dayal Moonsammy v Rolly Ramdhanie and Capital Insurance

CA 62 of 2003, Kangaloo JA at pages 4 to 5 outlined the

duty of expert witnesses to furnish the court with the

necessary scientific criteria for testing the accuracy of

their conclusions. In that case, the doctor gave his

opinion that the appellant would have to retire in 5 years

time. The court found that there was insufficient evidence

in the medical reports to sustain a claim for loss of

earning capacity. Similarly in this case, Dr Santana’s

statement of opinion was unsupported by scientific criteria

that the claimant will be unable to work in 5 years time or

that at the time of the hearing of the assessment, she was

medically unfit for work.

52. On this issue, I noted the lack of evidence from the Maude

Contant’s employer that she was not performing her duties

properly or that she had taken excessive sick leave.

Neither was there any indication that she had ever been

sent for medical examination by her employer as a prelude

to declaring her medically unfit.

53. Having regard to the foregoing, no sum was awarded under

this head.

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(b) Future surgery

54. Dr Santana's medical reports were silent with respect to

surgery. However while being examined in chief, he

indicated that said he did not recommend surgery currently

but would do so if her condition worsened and specifically

when she became 100% disabled. He said the surgery was

very risky. Maude Contant made no specific reference to

having surgery thought she indicated that she was prepared

to follow the recommendations of her doctors. No sum is

awarded under this head because the medical evidence was

inconclusive as to whether surgery would be needed in the

future and whether it would be recommended given the risks

associated with that type of surgery.

(c) Future medical expenses

55. Maude Contant was taking medication costing $35 a day.

This medication was also recommended by Dr Santana. She

was likely to need this medication for rest of her life.

The annual cost of medication was therefore $12,775 and

using a multiplier of 12, which takes into account the

contingencies of life and the fact that a lump sum payment

was being made. An award of $153,300 was made under this

head.

Special Damages

56. In the claimant’s written submissions the only items of

special damages were medical bills in the sum of $6,950.

The receipts annexed to the claimant’s witness statements

support the said sum and the claim was allowed.

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57. With respect to loss of earnings, Maude Contant had

continued working since the accident and she did not prove

any loss of salary. She received increments and was in

fact promoted to Specialist Nurse on completion of her BSc

in Oncology Nursing.

Costs

58. Costs were awarded on a prescribed costs basis, to which

the costs of doctor’s attendance at court were to be added.

Dated this 11th day of March, 2014.

Master P. Sobion Awai