IN THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH...

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IN THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE Claim No CV2008-03381

BETWEEN

LATO DACON Claimant

AND

VISHNUDATH MAHARAJ First Defendant

PRESIDENTIAL INSURANCE COMPANY LIMITED Second Defendant

****************************************** Before: Master Alexander Appearances: For the Claimant: Mr Rennie Gosine For the Defendants: Mr Shastri Parsad

DECISION

1. This matter involves a 3 car collision at the intersection of Bamboo Road and South Trunk

Road, La Romaine in the island of Trinidad and Tobago ("Bamboo Junction") on the 24th

September, 2006. On that day around 5:30 am, Lato Dacon ("Lato") was the driver of motor

vehicle PBF 1568 when it was involved in the accident with motor vehicle PBT 2237 which

was being driven by the first defendant, Vishnudath Maharaj ("Vishnudath"). Lato’s case is

that Vishnudath negligently broke the red light at Bamboo Junction and collided with his car,

thereby causing another motor vehicle TBL 6837 to collide with Lato's vehicle and he suffered

injuries. At the time of this accident, Vishnudath’s vehicle was covered under a policy of

insurance issued by Presidential Insurance. By order of Boodoosingh J dated 12th November,

2012 judgment was awarded to Lato in the amount of 65% of his claim, with damages to be

assessed by a master.

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2. In his claim, Lato has pleaded the following injuries:

Soft tissue injuries to the face, chest, left knee

MCL strain Grade II mild laxity

ACL tear Grade II mild laxity

Consequent on these injuries, Lato has suffered pain, tenderness and decreased range of

movement to the face, chest, left knee and left elbow. He was assessed with 10% permanent

whole body impairment. Lato now claims he is entitled to $120,000.00 as general damages. It

is understood that it is not for Lato to suggest the exact award to be given by this court and in

determining it, this court turned to the case presented by Lato and in particular the proof

provided.

3. Lato has provided the following documents in support of his case:

i. Witness Summary of Ms Kathy-Ann Mahabir filed on the 23rd May, 2013 and a letter

signed by her dated 3rd September, 2012;

ii. Witness Summary of Dr Stephen Ramroop of the San Fernando General Hospital

("SFGH") filed on 23rd May 2013 and the medical report dated 15th September, 2007;

iii. Witness Summary of Dr Gopeesingh of the Accident and Emergency Department,

SFGH and the medical report dated 3rd January, 2007;

iv. Radiology Consultation Report of Dr P Maharaj of Eric Williams Medical Sciences

Complex (undated);

v. Witness Statement of Lato;

vi. Witness Statement of Ms Riciah Mohammed and receipts for monies paid for

domestic assistance;

vii. Medical report of Dr David Santana of Medical Associates dated 21st September, 2013.

4. General damages are those losses to which it is difficult to ascribe a monetary value upfront.

The court would rely on principles to guide the assessment of the quantum payable to Lato;

the seminal ones having been well established by Wooding CJ in the case of Cornilliac v St

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Louis1. In keeping with this approach, the court considered the Cornilliac factors as against

the evidence provided:

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

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

iii. The loss of amenities suffered; and

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

4. As to the nature and extent of the injuries sustained by Lato, his pleadings of soft tissue

injuries to the face, chest and left knee as well as the MCL strain Grade II mild laxity and ACL

tear Grade II mild laxity are outlined above. These have been supported by the medical

evidence provided.

The medical evidence

5. Lato has submitted several medical reports to give further specificity to his injuries and

treatment. In his submissions on quantum, Mr Parsad, counsel for Vishnudath and

Presidential Insurance, have called into dispute the veracity and reliability of these reports. He

contested Lato’s medical evidence mainly on the basis that the doctors who authored the

reports were not called to give evidence at the assessment and that save the initial report from

the Accident and Emergency Department, delay and a lack of connectivity diminished the use

that could be placed on these reports. The court was invited to draw adverse inferences

against Lato's case for this failure to produce these witnesses for cross-examination. Mr

Parsad also asserted that by these reports, Lato is seeking belatedly to claim additional injuries.

Each report will be examined in conjunction with the issues raised in Mr Parsad's submissions.

At the same time, it is to be noted that all of Lato’s medical reports went into evidence

uncontested.

Medical report of Dr Gopeesingh Accident and Emergency Department, SFGH dated 3rd January, 2007

6. This report relates to Lato’s initial treatment on the day of the accident. It notes his

complaints on that day as laceration to his left leg and left shoulder. He was diagnosed as

having only a 10 cm x 2 cm laceration on his left knee. X-rays done on the day showed no

cause for concern. He was treated, the wound was sutured and he was discharged that same

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(1965) 7 WIR 491

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day. There is no mention of any tenderness or soft tissue injury to the face, chest or left elbow.

Further in his submissions, Mr Parsad makes much of the fact that the report does not

mention any bleeding in these 3 areas as Lato has testified to in his witness statement. Of

note is that in his evidence in chief, Lato recounted that he could see his bone from the cut

across his knee so it was not a minor laceration and clearly would have produced some

bleeding. Counsel argued that had this doctor given evidence, he could have provided greater

clarity on these matters. In considering this argument, I noted that the report referred clearly

to a laceration on the left knee and no reference was made to bleeding of the nose or chest or

treatment being administered to these areas. I was, therefore, so guided. The significance of

this report lies in its proof that Lato sustained an injury to his left knee as a result of the

accident on 24th September, 2006. It was considered that any likely injury to other areas such

as face, chest or elbow would at best be unremarkable as compared to the laceration to the left

knee.

Radiology Consultation Report of Dr Maharaj of Eric Williams Medical Sciences Complex

7. Lato obtained an MRI of his left knee and submitted the Radiology Report, which was

straightforward, albeit technical. It would have been beneficial to this court to have the doctor

attend and explain this report, which contained a lot of technical medical jargon. The gist of

this MRI report pointed to and seemed to confirm that the injury to Lato’s knee was ongoing.

Of note is that these findings were made some 5 months after the accident. This evidence

remains uncontroverted and supports the findings in the other medical reports (discussed

below).

Medical report of Dr Stephen Ramroop of the SFGH dated 15th September 2007

8. Lato places heavy reliance on this report, which comes a full year after the said accident,

following a visit to Dr Ramroop on 15th September 2007. It is clear from this report that Dr

Ramroop relied heavily on Lato’s narrative of his injuries to create this report, which

mentioned for the first time soft tissue injury and "tenderness and decreased range of

movement" to the face, chest and left elbow as well as a healed "left elbow laceration". Mr

Parsad has stiffly resisted the acceptance of the content of this report by this court.

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9. As previously mentioned, during Lato's medical examination immediately after the accident,

there was no mention of any tenderness or soft tissue injury to the face and chest or a

laceration to the left elbow. In the view of this court, it is conceivable that the injury to his

left knee may have overshadowed any other discomforts he might have been feeling and/or

he either neglected to mention it or the doctor neglected to note it. Generally, the

Gopeesingh report being a contemporaneous medical report, more weight would be ascribed

to it than a report manufactured one year later, especially where there is an absence or silence

in terms of continuing treatment. In the instant case, however, there was an MRI report 5

months after the accident but no other evidence was produced of continuing medical

treatment. It was noted that it was only under cross examination that Lato insisted that he

remained an outpatient at the SFGH Orthopaedic Department presumably in the intervening

period between the accident and Dr Ramroop's report a year later. He has provided no

evidence of this and Mr Parsad made heavy weather of this failure.

10. There clearly could have been a tighter evidentiary presentation of Lato's case especially as it is

for a claimant, in this case Lato, to adduce all the evidence upon which he bases his claim

before an assessing court. It was considered whether Lato could present with “tenderness and

decreased range of movement to the face, chest … and left elbow” a full year after the accident but not

before. It was concluded that soft tissue injuries and continuing tenderness in the general

areas of the impact were not beyond the bounds of possibilities, as arising from an accident

such as in the instant case. In fact, this court was cognizant of the fact that these types of

injuries may present themselves up to days, weeks or months after the accident where they

may not have been noticed before. In Pradip Dhanasar2 Gobin J rejected the defendant's

submissions that she should disallow the claimant’s claims for certain personal injuries which

were not originally found by the first doctor on the date of the accident. In so doing, she

recognized that in a serious accident, such superficial injuries as were initially reported were

highly likely and it was reasonable to accept that manifestations of pain or injury could have

developed with time.

11. With regard to the elbow laceration, however, this court was of the view that the causative link

between that and the said accident was not made. It is worth noting that this assessing court

2 HCA No S 402 of 2000

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could have benefitted significantly from the testimony of Dr Ramroop and it is quite

unfortunate that Lato neglected to present him to further clarify his findings in this report. As

the report stands, it is difficult for this court to ascertain a distinction between what the doctor

actually observed and found and what he repeated from the history of the injuries dictated to

him by Lato. There is no indication as to what tests or examinations were actually done by the

doctor or how he came up with his findings. In the circumstances, the court treated with the

additional injury of an elbow laceration outlined in Dr Ramroop's report for which there was

no causative link to the said accident as not proved on a balance of probabilities. On the

other hand, the assessment of Lato’s left knee injury is accepted as is the need for knee surgery

or ACL Repair at the estimated cost of TT$40,000.00 particularly as this was supported by the

defendants' own medical expert. It is also accepted that Lato will need physiotherapy, which is

estimated to be TT$10,000.00.

Medical report of Dr David Santana of Medical Associates dated 21st September, 2013

12. This report is significant because Dr Santana’s assessment of Lato was done at the request of

the defendants. Dr Santana, in his report, mostly confirmed the assessment done by Dr

Ramroop as regards the injury to the left knee. Dr Santana examined Lato and found the

range of motion of his left knee to be 10o – 140o where the normal range is between 0o – 150o.

The report further stated that the anterior drawer sign for anterior cruciate ligament

insufficiency was positive and recommended that this be reconstructed to restore stability. He

provided an estimated cost of this procedure as TT$60,000.00.

13. This court accepts the reports of Dr Santana and Dr Ramroop as complementing each other

on the ongoing disability with Lato's left knee and was satisfied that he is entitled to recoup

compensation to restore him to the position he would have been in before the accident. In

this regard, it determined to allow compensation for the corrective procedure to the left knee

and rejected outright Mr Parsad's attempt to delink the continuing knee problems from the

said accident on the basis that there was no evidence of any causative link.

14. The nature and gravity of the resulting physical disability by large have been captured by the

medical evidence but Lato also gave uncontroverted evidence that he could barely bend his

left knee, of being in continuous pain and discomfort and not being able to walk properly, to

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climb stairs or to drive. If he tries to climb the stairs, he would feel his knee cap slip.

Additionally, he is unable to put pressure on his left leg and he cannot run or stoop. He

averred that he is now walking with a limp and very slowly. Initially, he needed the assistance

of crutches for about 5 months and a walking cane after that.

15. Lato has been in continuing pain and discomfort since the accident. In his witness statement,

he averred that on, “impact I jerked forward and my chest and face slammed into the steering wheel in front

of me. The engine was pushed into my vehicle and my left knee slammed into it. I was hunched over and in

shock. After some time had passed I noticed that my left knee, my nose and my chest were bleeding. I began to

feel severe pain throughout my body particularly in my chest, knees and face.” Lato further testified as to

enduring a very difficult and painful ambulance ride and having to wait for hours to be

attended to at the hospital.

16. Even after being sent home with medication, the pain remained unbearable. His knee would

often swell and become tender and painful. Lato's evidence is that he would sometimes cry

because of the severe pain caused by this injury. He averred further that more than 6 years

after the accident, he is still suffering from pain and discomfort and is on constant medication.

He has provided no proof of being on medication and there is no claim for continuing pain

killers. He has claimed that he also gets pain in his chest which sometimes makes breathing

difficult. Given the poor presentation of his case in this regard and the length of time that has

passed, this court was unsure as to the connectivity of this chest pain with the accident so little

weight, if any, is given to this aspect of his evidence.

17. Notice was taken of the emotional and psychological suffering endured consequent on his

knee injury. He was unable to look after himself and had to hire someone to help him with

everyday tasks including changing his clothes and giving him sponge baths. Lato testified that

this was a very depressing time for him because he was usually an independent person. His

injury also kept him confined to the house save for those times he had to visit with the doctor.

18. Lato has made out a case for loss of amenities stating that he was 32 years at the time of the

accident, now 40 years, and since the accident his movements have become slow and more

difficult. He has not been able to move about like before or perform activities as he would

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previously. Climbing stairs is a difficult task and he can no longer run or stoop. The accident

has changed his life substantially. This court accepts that Lato continues to experience

ambulatory challenges as described. However, apart from his work and ambulatory

challenges, there is no evidence as to what his previous lifestyle consisted of, what were his

hobbies and pastimes or popular errands or chores.

19. There is evidence that the pecuniary prospects of Lato have been materially affected since the

accident. Prior to the accident, Lato worked for Damus Limited as an assistant tradesman

assisting in the welding and cutting of steel. He started working with this company about 3

years before the accident and worked on a contractual basis, 6 days a week from 6:30 a.m. to

5:30 p.m. He earned a salary of $1,588.04 per week. His job would often require him to lift

and move heavy objects, climb ladders and scaffolding and generally be on his feet all day.

Due to the physical nature of his job, his knee injury made him unable to work for 23 months

after the accident. He was not paid during this period. He says that he suffered loss of

earnings in the sum of $146,099.68. Lato was able to return to work after this period as a

fitter until the year 2011. He has supplied this court with copies of a salary slip and a letter

from Ms Kathy-Ann Mahabir, the Vice-President of the Administration Department of this

company which corroborated Lato’s evidence on this matter in part. This letter indicated that

he was not on the payroll of Damus Limited from the date of the accident to 19th July, 2008.

The letter also stated that Lato’s rate of pay at the time that he had the accident was $23.47 per

hour. This independent evidence is what was accepted by this court.

Case Law

20. Counsel for Lato, Mr Rennie Gosine, pointed the court to the cases of Scully v Xtatic Ltd &

others3 and Marva Harewood v Trading and Distribution Ltd4 as comparable cases for

the award of general damages. In Scully, the claimant suffered injuries to his knee as a result

of the collapse of a stage at the defendant’s concert. His injuries included torn knee ligaments

which required him to undergo surgery. He was awarded an interim payment of $100,000.00,

as adjusted to December, 2010 to $182,740.00

3 HCA 53 of 2002

4 CV2007-02359

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21. In Marva Harewood, the claimant’s knee was injured when she slipped and fell in a

supermarket. She sustained a torn and disrupted posterior cruciate ligament of the right knee.

Reconstructive surgery was also recommended in her case. She was awarded the sum of

$75,000 for general damages on 30th September, 2009 by Pemberton J, as adjusted to

December, 2010 to $83,632.00. The similarities of the injuries of this claimant and Lato's are

noted, both having sustained torn ligaments in the knee. It has been recommended that Lato

undergo a procedure to reconstruct the anterior cruciate ligament of the left knee.

22. This court noted that the cases suggested by Mr Parsad on behalf of the defendants on the

quantum of general damages were of considerable vintage and produced low awards including:

Chow Leong v Boodoo5 where on 19th March, 1974, Hassanali J gave the sum of

$1,000.00 for general damages for multiple lacerations and abrasions about the body.

Mohammed et al v Supersad6 where on 23rd October, 1987 Lucky J awarded to one

of the plaintiffs (a minor) the sum of $8,500.00 as general damages for lacerations to

the cheek and knee (For cheek $7,500.00 and knee $1,000.00).

23. Mr Parsad in submitting these authorities maintained that the only injury relevant to this

assessment is a laceration to the knee since this was what was presented in the initial medical

report after the accident. In the view of this court, these cases, particularly that of

Mohammed et al v Supersad (supra), were not representative of the present facts. Further,

this court does not accept any attempt by the defendants to trivialize the injuries suffered by

Lato, as he has provided sufficient medical evidence to support his claim and particularly of

his continuing disabilities consequent thereon.

24. The cases of Claudia Samuel v Retrofit (Trinidad) Ltd7 and Nichola Rodriguez v Ansa

Finance Merchant Bank Ltd and others8 were also considered. In Nichola Rodriguez,

the claimant was in a motor vehicular accident and suffered injuries, most significantly an

injury to the knee for which reconstructive surgery was also recommended. She was awarded

the sum of $185,000.00. Her injuries, as backed up by the medical evidence, were more severe

5 HCA 2486/1973

6 HCA No S-154 - 157/1981

7 CV2008-02942

8 CV2008-03048

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than in the instant matter and it was determined that Lato was not deserving of an award in

this higher extremity. In Claudia Samuel, the claimant fell off a defective chair while at work

and suffered severe and persistent knee injuries as well as other injuries. She was awarded the

sum of $80,000.00.

25. The cases were all useful comparative tools, bearing in mind that each case will depend on its

own unique set of facts. In making the assessment, the court was mindful of the specific

injuries and losses suffered by Lato and how this has impacted on his life. In making this

award, it was borne in mind that any award must show that due consideration was given to

how his injuries have impacted his ability to enjoy the amenities of life and his pecuniary

prospects, without unjustly enriching or overcompensating him. All other principles on

assessments being factored in as well as the distinctions among the cases, Lato is awarded the

sum of $90,000.00 for his pain and suffering and loss of amenities.

Special Damages

26. Special damages are those quantifiable monetary losses suffered by a claimant up to the time

of the trial. It is trite law such claims must be specifically pleaded, particularised and proved.

Under this head, Lato has claimed the global sum of $253,928.64 as follows:

Medical expenses

27. Lato claimed $500.00 in medical expenses in relation to visiting and obtaining a medical report

from Dr Ramroop. It was advanced that the medical report demonstrates that money was

spent and the amount claimed was reasonable so the court should allow it. There was no bill

or receipt to show the amount spent and no explanation as to why this could not be furnished.

It is disallowed.

Domestic Assistance

28. Lato gave evidence that he had difficulty walking, moving around and particularly climbing

stairs after the accident. This evidence was uncontroverted and was supported by the medical

reports. Lato averred that he was unable to properly look after himself and had to hire

someone to help look after him. He hired Riciah Mohammed to help him with his daily

activities and paid her $1,500.00 monthly for her services. Lato claimed the sum of $1,500.00

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for 19 months for these domestic services which amounts to $28,500.00. In support of his

claim for domestic assistance, Lato has provided this court with seven receipts for monies paid

to Riciah Mohammed in varying amounts. It is noted that the receipts contradicted the actual

sums claimed and the frequency with which they were said to be paid. Although it is accepted

that Lato still may bear some pain and discomfort from his injuries, I do not accept that he

needed the services of Ms Mohammed for 19 months. In fact, his medical evidence was silent

as to any such continuing need for this care over the extensive period claimed. Although the

sums reflected in these receipts contradicted Lato’s evidence of what was paid to Ms

Mohammed, I accepted that he may have needed some care in the initial period of his injury

so was minded to allow him to recoup compensation for the months reflected by the receipts

exhibited. He is allowed $1,500.00 for 7 months in the total sum of $10,500.00.

Loss of earnings

29. Lato was employed with Damus Limited on a casual basis, which he asserted under cross

examination afforded him regular albeit not permanent work. He claims loss of earnings for

23 months at the rate of $1,588.04 per week in the global sum of $146,099.68. He averred

that he was unable to work for this period due to the injuries from the accident. He has

produced a salary slip and a letter from his employer to support these averments. However,

the period as quoted in this letter by the Vice-President of Administration for which he was

not on the payroll was 22nd September, 2006 – 19th July, 2008 which is a period of 22 months.

Further, the only salary slip which Lato exhibited shows his pay to be $1,336.69 per week.

The court will use these figures in calculating his loss of earnings. Lato is thus allowed the

sum of $117,628.72 for loss of earnings, which is discounted by 25% for contingencies of life.

Transportation

30. Lato claims the sum of $1,500.00 in transportation costs for visits to doctors, where he had to

hire private vehicles to take him back and forth. He has provided no receipts or proof of this

expenditure and it is disallowed.

Future medical expenses

31. The report from Dr Ramroop recommended that Lato should undergo a corrective surgery to

his left knee at the estimated cost of $40,000.00 with a further $10,000.00 for the attendant

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physiotherapy that will be needed after the surgery. The report from Dr Santana supported

this need for reconstructive knee surgery and the estimate given was $60,000.00. I am satisfied

that this procedure is necessary to assist in Lato’s recovery and the sum of $50,000.00 is

allowed.

Future disability in the labour market

32. In Lato’s submissions on quantum, the sum of $60,000.00 is quoted referencing the

assessment of Dr Santana that Lato would need future surgery and medical expenses. This

recommendation echoes that of Dr Ramroop. His counsel is asking that he be awarded this

sum for future disability. This sum is essentially being claimed twice since a sum was already

awarded for future medical expenses. It must be noted that this claim for future disability was

not pleaded and there was no medical evidence supporting such continuing disability. It is

trite law that such a claim cannot be introduced for the first time after the assessment of

damages is completed. It was also borne in mind that the corrective surgery, for which he is

being compensated, should remove (not create) any likely future disability on the labour

market. This claim is disallowed.

Order

33. It is ordered that the defendants do pay to Lato (the claimant) 65% of his claim as follows:

i. General damages for pain and suffering and loss of amenities in the sum of $58,500.00

(being 65% of $90,000.00) with interest at the rate of 9% per annum from 3rd

September, 2008 to 7th November, 2014;

ii. Special damages in the sum of $64,169.00 (being 65% of $98,721.54) with interest at

the rate of 6% per annum from 24th September, 2006 to 7th November, 2014;

iii. Future medical expenses in the sum of $32,500.00 (being 65% of $50,000.00);

iv. Costs on the prescribed basis in the sum of $23,018.19; and

v. Stay of execution of 28 days.

Dated 7th November, 2014

Martha Alexander

Master

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