JUDGMENTwebopac.ttlawcourts.org/LibraryJud/Judgments/HC/des...Page 1 of 60 THE REPUBLIC OF TRINIDAD...

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THE REPUBLIC OF TRINIDAD & TOBAGO

IN THE HIGH COURT OF JUSTICE

CV-2009-03527

Between

Ian Gonzales (Claimant)

v

Scaffolding Manufacturers (Trinidad) Limited

First Defendant

And

Nu-Iron Unlimited

Second Defendant/Ancillary Claimant

And

Lexicon Inc.

First Third Party

Atco Caribbean Limited

Second Third Party

Before the Honourable Mr. Justice A. des Vignes

Appearances:

Mrs. Lynette Maharaj S.C and Mr. Kingsley Walesby instructed by Ms. Shaheera

Allahar for the Claimant

Mr. Richard Jagai instructed by Ms. Deedra Maharaj for the First Defendant

JUDGMENT

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Claimant’s pleaded Claim

1. The Claimant’s claim is for damages for personal injuries, loss and damage that he sustained

on 8th

October 2005 during the course of his employment with the First Defendant, at the

premises of the Second Defendant. He alleges that the injuries and damages he sustained

were caused by the negligence and/or breach of statutory duty of the First and/or Second

Defendants, their servants or agents.

2. On 3rd

June 2013, the Claimant filed a Notice of Discontinuance against the Second

Defendant and at the trial, the Second Defendant sought and obtained leave of the Court to

withdraw the ancillary claims against the Ancillary Defendants. Accordingly, for all intents

and purposes, the issues of liability and quantum to be determined in this action arise as

between the Claimant and the First Defendant only.

3. The Claimant, who was born on 10th

February 1985, was employed by the First Defendant as

a Rigger. By his Re-Re-Amended Statement of Case filed on 13th

May 2011, he alleges that

the First Defendant was engaged in the business of building scaffolding and on 8th

October

2005 was so engaged at the Second Defendant’s premises at Point Lisas Industrial Estate,

Couva.

4. On 8th

October 2005, the Claimant reported for work at the Second Defendant’s premises for

the purpose of building scaffolding around a pipe 50 feet above the ground.

5. On that day, the Claimant put on his harness and entered the lift which elevated him 50 feet

above the ground. He exited the lift and walked along the pipe of scaffolding to attach his

harness to the lifeline which was approximately 7 feet away from the lift. After taking four

steps towards the lifeline, the Claimant's foot slipped and he fell to the ground. As a result,

the Claimant suffered injuries, loss and damage.

6. The Claimant alleges that the accident and the injuries, loss and damage were occasioned by

the negligence and/or breach of statutory duty of the First Defendant, its servants and/or

agents.

First Defendant’s pleaded Defence

7. The First Defendant admits that the Claimant was employed by it as a Rigger. It alleges that

at the material time it had been hired by Atco Caribbean Ltd, to erect access scaffolding for a

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pipe around a ‘reformer’ at the Nu-Iron Plant in the Point Lisas Industrial Estate. This

scaffolding was intended to be used by third parties to gain access to the pipe, in order to

weld the same.

8. The Claimant’s duty on the day of the accident was to hoist scaffolding material

approximately 50 feet off the ground to the ‘job site’, which was located at the edge of the

reformer. The Claimant was responsible for passing scaffolding to the other Riggers who

were responsible for assembling the scaffolding around the pipe.

9. The First Defendant denies the allegation that there was a lift which was used by the

Claimant to get to the job site. The First Defendant contends that the established procedure

for its employees to reach the job site was as follows:

a) The First Defendant’s employees would hold a tool box meeting on arrival at the site;

b) Thereafter, the site would be cordoned off to prevent other workers from passing

beneath and all workers would have their safety equipment including a safety harness

with two lanyards attached;

c) The employees would get to the job site by ascending stairs which were already located

on either side of the reformer and which took the employees to the height of the job site;

d) The employees would then exit the stairs onto a catwalk which was about2 feet wide

and which had hand railings on both sides as well as a lifeline overhead. The employees

were supposed to safely latch their lanyards onto this lifeline at all times;

e) The employees would then walk along the catwalk and latch their lanyards onto a beam

strap which was secured with a steel beam overhead.

f) The employees would then step over the hand railing onto another steel beam which ran

underfoot and perpendicularly to the catwalk and which was about 2 or 3 feet wide.

g) The employees would then walk along the beam underfoot to the job site at the edge of

the reformer while still being attached to the steel beam overhead.

h) Employees could hook one lanyard at a time onto another fixed point on the reformer so

that at all times the workers were attached to a fixed point.

10. The First Defendant alleges that this procedure ensured that the employees would be able to

move freely and safely to the job site without falling.

11. However, the First Defendant says the Claimant did not follow the procedure and tried to

reach the job site via an alternative and unsafe method, which was not part of the First

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Defendant's system of work. It denies that the Claimant had to walk upon a pipe as alleged by

the Claimant.

12. It contends that the type of footwear which the Claimant was wearing on the day of the

accident was suitable for the performance of his duties and that specialised footwear was not

necessary.

13. The First Defendant also contends that there was a tool box meeting on the day of the

accident, at which the employees, including the Claimant, were reminded of the necessity of

maintaining 100% tie-off at all times and of using the stairs to get to the job site. Further, the

First Defendant denies that the Claimant was not trained but asserts that he was adequately

trained prior to the accident.

14. The First Defendant also contends that neither the Second Defendant nor the First Ancillary

Defendant had put safety procedures in place for the First Defendant. They left the First

Defendant to its own devices to formulate and implement a safe system for performing its

subcontracted work, which it did, without any complaint by the Second Defendant or the

Ancillary Defendants.

15. Accordingly, the First Defendant denies each and every allegation of breach of statutory duty

and/or negligence made by the Claimant against it.

16. In the alternative, the First Defendant says that the Claimant contributed to his injury by his

own negligence and that the Claimant willingly accepted the risk of such damage. They

further allege that the injuries and loss claimed by the Claimant are exaggerated and/or

excessive and that he failed to mitigate his losses.

17. The First Defendant further alleges that the Claimant returned to work with the First

Defendant as a laborer as well as a driver from August 2006 to 11th

February 2007, during

which time he had no difficulty performing his tasks. The Claimant then left the First

Defendant’s employ of his own volition.

18. The First Defendant also denies the prognosis contained in the Claimant’s medical report and

contends that the Claimant received workmen’s compensation in the sum of $13,403.28,

which sum ought to be deducted from any award granted to the Claimant for loss of earnings.

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Liability

The Evidence

19. In support of the allegations of breach of statutory duty and/or negligence, the Claimant

relied on his evidence as contained in his witness statement filed on 4th

June 2012.

20. In support of its Defence on liability, the First Defendant relied on the evidence of Phillip

Archie, Desmond Durham and Tarran Singh. Although a witness statement was filed in the

name of Shane Rambharath, he was not called to give evidence at the trial.

21. By Rule 29.9 of the Civil Proceedings Rules 1998 (as amended), if a party has served a

witness statement and he wishes to rely on the evidence of the witness who made the

statement, he must call the witness to give evidence unless the court orders otherwise. Since

Mr. Rambharath failed to attend at the trial to put into evidence his witness statement and to

be cross-examined thereon and the First Defendant did not advance any good reason for his

non-attendance, I propose to exclude his witness statement from my consideration of the

issues of liability.

The Issues

22. The following issues arise for determination in this matter:

a) Did the First Defendant fail to provide a safe system of work for the Claimant?

b) Were the Claimant's injuries caused by or contributed to by his negligence?

The Law

23. The Claimant's claim against the First Defendant is based on alleged breaches of sections 20

and 21 of the Factories Ordinance Chapter 13 No.2 as well as on common law negligence.

24. Section 20(1) of the Factories Ordinance provides as follows:

"All floors, steps, stairs, passages and gangways and all hand-rails and guard-rails

shall be of sound construction and properly maintained."

25. Section 21 provides as follows:

"(1) There shall, so far as is reasonably practicable, provided and maintained safe

means of access to every place at which any person has at any time to work'

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(2) Where any person is to work at a place from which he will be liable to fall a

distance of more than ten feet, means shall be provided, so far as is necessary and

practicable, by fencing or otherwise for ensuring his safety."

26. At common law, the term "system of work" is used to describe:

a) the organisation of the work;

b) the way in which it is intended the work shall be carried out;

c) the giving of adequate instructions (especially to inexperienced workers);

d) the sequence of events;

e) the taking of precautions for the safety of the workers and at what stages;

f) the number of such persons required to do the job;

g) the part to be taken by each of the various persons employed; and

h) the moment at which they shall perform their respective tasks.1

27. The duty to prescribe a safe system of work is neither one to provide perfection nor an

absolute duty. It is a duty "to take reasonable steps to provide a system which will be

reasonably safe, having regard to the dangers necessarily inherent in the operation. In

deciding what is reasonable, long established practice in the trade, although not necessarily

conclusive, is generally regarded as strong evidence in support of reasonableness."2

28. Further, the fact of prescribing a safe system of work does not sufficiently discharge an

employer's duty, unless it is also accompanied by steps reasonably to ensure it is followed or

operated3, such as, for example, inspection and supervision. An employer does not discharge

his duty by establishing a system and turning a blind eye to its breach.4

29. Contributory negligence means that there has been some act or omission on the Claimant's

part which has materially contributed to the damage caused and is of such a nature that it may

properly be described as negligence. For these purpose, "negligence" is to be taken in the

sense of careless conduct rather than its technical meaning involving breach of duty. It means

the failure by a person to use reasonable care for the safety of either himself or his property

so that he becomes blameworthy in part as an author of his own wrong.5 When contributory

negligence is set up as a defence, its existence does not depend on any duty owed by the

1 Charleworth & Percy on Negligence (10th Ed.) paragraph 11-66 @ page 841

2 General Cleaning Contractors Ltd v. Christmas [1953] AC 180 at 195 per Lord Tucker

3 McDermid v. Nash Dredging & Reclamation Co Ltd [1987] AC 906 at 919

4 McGregor v. A.A.H. Pharmaceuticals 1996 S.L.T. 1161

5 Charleworth & Percy on Negligence (10th Ed.) @ p.170

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injured party to the party sued. All that is necessary to establish such a defence is to prove

that the injured party did not in his own interest take reasonable care of himself and

contributed, by this want of care, to his own injury. The burden of proving contributory

negligence lies on the Defendant; it is not for the Claimant to disprove it. If the Defendant's

negligence or breach of duty is established as causing the damage, the onus is imposed on the

Defendant to establish that the Claimant's contributory negligence was a substantial or

material co-operating cause. The Defendant must first prove that the Claimant failed to take

ordinary care of himself or such care as a reasonable man would take for his own safety and

secondly, that his failure to take care was a contributory cause of the accident.

Analysis of Issues

Safe system of work

30. In considering this issue, I am of the view that I need to consider and determine the following

issues of fact:

I. (a) Did the First Defendant hold a safety orientation meeting before the

commencement of scaffolding construction?

(b) Did the First Defendant, through its foreman, instruct its employees, and

in particular, the Claimant to follow the procedure of maintaining 100% tie off at

all times?

II. Was there a lift in operation at the site which was used by the Claimant or did he

use the stairs or some alternative unsafe method to get to the location where he

was required to perform his duties?

III. Was there a catwalk at the height of 50 feet with hand-railings on both sides and

a lifeline overhead onto which the employees of the First Defendant could latch

on their lanyards?

IV. Did the First Defendant's foreman, Shane Rambarath, give instructions to the

Claimant to perform his duties at a level of 50 feet or at a lower level?

V. Was there unsuitable and/or insufficient and/or unsafe access to and egress from

the place where the Claimant was required to perform his duties?

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VI. Did Mr. Rambharath require the Claimant to walk across a hazardous and/or

slippery pipe for several feet without his harness being attached in order to

perform his duties?

VII. Did the First Defendant provide to the Claimant adequate health and safety

training and/or orientation in accordance with accepted industrial standards

before commencing work?

VIII. Did the First Defendant fail to provide the Claimant with suitable protective

equipment (including but not limited to non-slip footwear, footwear with special

grips or non-slip covers for his shoes) to protect him from slipping?

IX. Did the First Defendant fail to implement suitable/sufficient protection measures

to prevent the Claimant from injuring himself from falling, including the

provision of railings and/or safety nets?

X. Did the First Defendant fail to carry out a suitable risks assessment?

XI. Were the passageways and gangways which the Claimant was required to use of

unsound construction and/or not properly maintained?

XII. Was there an absence of fencing or other means to ensure the Claimant's safety?

XIII. Did the First Defendant fail to provide adequate supervision?

Evaluation of the evidence

I. (a) Did the First Defendant hold a safety orientation meeting before the

commencement of scaffolding construction?

(b) Did the First Defendant, through its foreman, instruct its employees, and in

particular, the Claimant to follow the procedure of maintaining 100% tie off at all

times?

31. In his witness statement, the Claimant gave evidence that he did not recall attending any

safety orientation from the First Defendant or the Second Defendant. He also did not recall

meeting with or observing any safety officers employed by the First Defendant or Second

Defendant on the site. However, under cross-examination, he admitted that there was a "tool

box" meeting held by the foreman, Shane Rambharath, at which he was present. He also

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admitted that the procedure for the performance of the job was explained to the workers and

they were instructed to maintain 100% tie off.

32. Accordingly, I hold that the First Defendant held a safety orientation meeting before the

commencement of scaffolding construction on 8th

October 2005 and that Mr. Rambharath

instructed the First Defendant's employees, including the Claimant, to follow the procedure

of maintaining 100% tie off at all times.

II. Was there a lift in operation at the site which was used by the Claimant or did he use

the stairs or some alternative unsafe method to get to the location where he was

required to perform his duties?

33. At paragraph 4 of the Re-Re-Amended Statement of Case, the Claimant alleged that he

entered a lift which took him to a height of 50 feet above the ground. However, in the Reply,

(at paragraph 5.4) he alleged that he "ascended to the job site using one of the existing means

to get to the job site above the ground but does not recall if there were stairs on either side of

the Reformer and puts the First Defendant to strict proof thereof. The Claimant states that he

was instructed by Shane to follow the other workmen going to the job site which he did."

Further, (at paragraph 7 of the Reply) he stated that he reached the location where he had

been assigned to work by using the same means of access used by the other workers in

accordance with Shane's instructions to follow them. Then, (at paragraph 11 of the Reply), he

alleged that he was assigned to work on a steel pipe located below the job site and that he was

required to ascend a ladder to reach the said location.

34. In his witness statement, the Claimant stated (at paragraph 11) that before he started to work,

"Shane told me to follow Damion to the jobsite.....I then put on my harness with 2 lanyards

attached and followed Damion to the job site. Damion continued to climb to higher level

whilst I remained on a pipe at a lower level in order to assist the other workers in hoisting up

the materials from the ground."

35. Under cross-examination, however, the Claimant responded that he was about 40-45 feet

above ground at the time he fell and "I got up there by a man-lift" and he insisted that what

he was saying in court was true.

36. Mr. Durham in his evidence referred to the workers going up the stairs although he did not

look up to see who was going up the stairs as he was focusing on his work.

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37. On the other hand, Mr. Tarran Singh stated that to reach the job site the procedure was to

climb up a set of stairs which were located at the side of the reformer and which would take

the workers to the top. As the senior rigger on the site, he was the first person to ascend the

stairs to get to the job site. He also stated that there was not a lift in operation on that day and

at all times access to the scaffolding was by the stairs and the catwalk.

38. Under cross-examination, Mr. Singh stated that the Foreman gave instructions to use the

stairway to get to the reformer and "We got from ground to top by using steps." However,

although he was in charge of Riaz and the Claimant, he did not look back for him because "I

was going straight to top and I thought he knew what he had to do."

39. Having considered the evidence on both sides, I have come to the conclusion that the

Claimant is not speaking the truth when he said he used a man-lift to get up to the height

from which he fell. I believe the evidence of the First Defendant's witnesses that the

procedure required all the workers who were involved in the construction of the scaffolding

at the edge of the reformer to use the stairs to get to the job site and that the Claimant

followed the other workers, such as Tarran Singh and Damion Doolcharan, up the stairs.

III. Was there a catwalk at the height of 50 feet with hand-railings on both sides and a

lifeline overhead onto which the employees of the First Defendant could latch on their

lanyards?

40. In his witness statements, the Claimant did not refer to the existence of a catwalk with hand-

railings and an overhead lifeline. However, under cross-examination, he gave the following

evidence:

"I agree there was catwalk to get up to reformer which was about 2 feet wide

with railings on both sides of it. They were about 3 feet high on both sides. The

floor had metal grating. I can’t recall a lifeline running above that catwalk. I

agree workers were to attach lines to life line. Workers were supposed to walk

along the catwalk and attach to a beam strap. Workers were to step over the

railing and then walk onto another beam."

41. Based on this evidence of the Claimant and the evidence of Mr. Taran Singh (at paragraph

10), I am satisfied that there was a catwalk at the job site approximately 2 feet wide with

railings on both sides thereof. Those railings were approximately three feet high. In addition,

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there was a lifeline overhead onto which the workers were supposed to attach their lanyards

in order to maintain 100% tie off.

IV. Did the First Defendant's foreman, Shane Rambarath, give instructions to the

Claimant to perform his duties at the level of 50 feet or at a lower level?

42. In the Re-Re-Amended Statement of Case, the Claimant alleged that he put on his harness

and entered the lift which took him to a height of 50 feet above the ground. In the Reply, (at

paragraph 5.2) the Claimant described the "job site" as being 50 feet above the ground. He

then stated (at paragraph 5.4) that he ascended to the "job site" using one of the existing

means to get there. He also alleged that he was instructed by Shane Rambharath to follow the

other workmen going to the "job site" which he did. He then alleged that Mr. Rambharath

instructed him to hoist the material up to the job site from a lower beam and he complied

with his instructions to exit at a lower beam which did not have a catwalk. Upon reaching the

lower level, the Claimant was required to walk approximately 7 feet across a narrow steel

pipe measuring approximately 10-12 inches in circumference which had no handrails or

catwalk in order to reach the overhead lifeline onto which he could fasten his lanyard.

43. In his witness statement, the Claimant gave evidence that "Shane told me to follow Damion to

the job site... Shane also told me that I would have to go to a lower beam in order to assist

the other workers and to assist them by hoisting the material from the ground up to the job

site from the lower beam." Under cross-examination, the Claimant insisted that he was

instructed to work on the lower beam.

44. In its Re-Re-Amended Defence, the First Defendant pleaded that there was an established

procedure to reach the job site which was approximately 50 feet off the ground and that the

Claimant did not follow that procedure. According to the First Defendant, "the Claimant did

not follow the procedure set out above by not ascending the said stairs all the way up to the

catwalk but instead tried to reach the said job site via an alternative, unsafe method which

was no part of the said system of work." Further, the First Defendant alleged that any injury,

loss and damage that the Claimant may prove was solely caused by him or in the alternative

was contributed to by his own negligence.

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45. However, at the trial, the witnesses called by the First Defendant were not able to give

evidence in support of the pleaded Defence. Firstly, Desmond Durham was not able to shed

any light on the actual instructions given to the Claimant by the foreman. In his witness

statement, he stated that "Before the job started that morning the foreman assigned each of us

a specific job for the day" and, under cross examination, he stated that the foreman gave the

workers other duties but he could not recall what he gave them to do.

46. In his witness statement, Mr. Tarran Singh stated that at the tool box meeting the foreman

explained to the workers the procedure to get to the work area and how the job was to be

performed and he warned the workers about maintaining a 100% tie off at all times once they

reached the top of the stairs. He also said "at no point while I was climbing up the stairs did I

see Ian... His job at the time was to stay on top the scaffold and to lend whatever assistance

to Raiz and I by passing material and whatever equipment or tools we would have needed to

erect the scaffold." From his knowledge of the site and the procedure for access to the

reformer, walking on a pipe never formed part of the proper procedure. Under cross-

examination, Mr. Singh gave the following responses:

"All I can say with regard to Ian is that he was given role to hoist material to top to help me.

Next thing I knew he was on ground. Where I was working my tie off was beam. This beam

was beam that we were erecting scaffolding on. I don’t know if there was any other beam or

pipes below. It is not correct that he was below us to pass material to us. My evidence is

based on what I recollect and not on what would usually happen..... I was senior rigger. I

was in charge of person pulling up material. I was in charge of Riaz and Ian. I did not look

back for Ian. I did not see him. I was going straight to top and I thought he knew what he had

to do."

47. Based on this evidence, therefore, Mr. Singh did not state what were the specific instructions

given to the Claimant by Mr. Rambharath and he was not able to contradict directly the

Claimant's evidence that he was instructed to work at the lower level.

48. As earlier stated, the First Defendant failed to adduce any evidence from the foreman, Mr.

Rambharath with regard to the specific instructions given to the Claimant. The Claimant's

Attorneys submitted that in the light of the evidence given by the Claimant as well as the

evidence of Tarran Singh and Phillip Archie, it was incumbent upon the First Defendant to

lead direct evidence from Mr. Rambharath on this issue. Having failed to do so or to give to

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the Court any reason for his absence, the evidence of the Claimant remained unchallenged

and should be accepted by the Court. Further, they submitted that the Court is entitled to

draw the adverse inference that the evidence of Mr. Rambharath would not have helped the

First Defendant's case and would have supported the Claimant's contention that on the day of

the incident, Mr. Rambharath issued an express instruction to the Claimant to work at a lower

level in order to hoist the scaffolding from the ground to the employees who were working at

the higher level.

49. In Wisniewski v. Central Manchester Health Authority6, Brooks LJ stated that:

"1. In certain circumstances a court may be entitled to draw adverse inferences from the

absence or silence of a witness who might be expected to have material evidence to give

on an issue in an action.

2. If a court is willing to draw such inferences they may go to strengthen the evidence

adduced on that issue by the other party or weaken the evidence, if any, adduced by the

party who might reasonably have been expected to call the witness.

3. There must, however, have been some evidence, however weak, adduced by the

former on the matter in question before the court is entitled to draw the desired

inference; in other words, there must be a case to answer on that issue.

4. If the reason for the witness' absence or silence satisfies the court then no such

adverse inference may be drawn. If, on the other hand, there is some credible

explanation given even if it is not wholly satisfactory, the potentially detrimental effect

of his/her absence or silence may be reduced or nullified."

50. This test was applied in our jurisdiction by Justice Tiwary-Reddy in Marysia Perreira v.

British American Insurance Company (Trinidad) Ltd 7 where she held that since the

Defendant might reasonably have been expected to call two key witnesses in order to adduce

oral and documentary evidence but failed to do so, she was entitled to draw adverse

inferences against the Defendant.

51. In Ian Sieunarine v Doc’s Engineering Works (1992) Limited8 delivered by Rajnauth-Lee

J (as she then was) stated as follows:

6 (1998) 7 PIQR 323 at 340

7 HCA No. S-781 of 1999

8 No. 2387 of 2000

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“Having considered the evidence as a whole, the various submissions advanced on behalf

of the parties, having carried out the balancing exercise suggested by the authors of

Phipson as to the weight of the written statement of the plaintiff, and having examined the

evidence of the witness Ragoonath, the Court is satisfied that a prima facie case of

negligence has been sufficiently made out.

In the absence of the witnesses Dipnarine and Simmons, the Court is entitled to infer that

the defendant has chosen to withhold evidence which would either have supported the

plaintiff’s case or at the very least would not have displaced the prima facie case.

Accordingly, the Court finds that the prima facie case has become a strong case in the

absence of any evidence to dispute the matters established by the evidence of the plaintiff

and his witnesses.”

52. Adverse inferences were also drawn by Rahim J. in Surujbally Samaroo v Kishore

Ramsaroop and Ann-Marie Ramsaroop9. After examination of the authorities, Rahim J

outlined the test to be considered as follows:

“Thus the Court must be satisfied first that a prima facie case had been made out on a

material issue or that there is a case to answer on that issue. It is then for the Court to

consider whether the proposed witness may have been expected to give material evidence

on that issue. If the answer is yes, the Court must then have regard to the reason for the

witness’ absence and can then draw adverse inferences due to the absence of evidence.”

53. In my opinion, on the pleadings, it was critically important for evidence to be led on both

sides as to the specific instructions given to the Claimant by Mr. Rambharath. The Claimant

gave evidence that he was instructed by Mr. Rambharath to work at a lower level in order to

assist the other workers by hoisting the material from the ground up to the job site from the

lower beam. Therefore, the First Defendant had a case to answer. Since neither Mr. Durham

nor Mr. Singh were able to give any evidence about the instructions given to the Claimant by

Mr. Rambharath, it was reasonable to expect that Mr. Rambharath would be called by the

9 Claim No. CV2007-03190 / H.C.A. No. S-1295 of 2005 at paragraph 58

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First Defendant to say what instructions he gave to the Claimant and to subject himself to

cross-examination so that the Court could properly evaluate the evidence in support of the

competing versions. As expected, the First Defendant filed a witness statement in the name of

Mr. Rambharath but he failed to appear at the trial. Most importantly, the First Defendant's

Attorneys did not provide the court with any or any reasonable explanation for his failure to

attend.

54. In the circumstances, I am prepared to draw the adverse inference that Mr. Rambharath's

evidence would not have supported the First Defendant's Defence and I am also prepared to

accept the Claimant's evidence that he was instructed by Mr. Rambharath to perform his

duties at a lower level than 50 feet in order to pass up the scaffolding to the other workers

who were erecting the scaffolding at the higher level.

V. Was there unsuitable and/or insufficient and/or unsafe access to and egress from

the place where the Claimant was required to perform his duties?

55. In his witness statement, the Claimant stated that Damion Doolcharan continued to climb to a

higher level while he remained on a pipe at a lower level in order to assist the other workers

in hoisting up the materials from the ground:

"I remember stepping on to the pipe and observing that there was nowhere for me to 'tie

off' in my immediate vicinity. However, I observed that there was a life-line located

approximately 7 ft away along the pipe......The pipe which I was required to walk along

was unpainted and was approximately 10 inches to 12 inches wide. There were other

bigger pipes which I observed overhead and below the pipe was the ground. There was

no cat-walk to walk along, no hand-rails to provide a secure hold and no safety netting

around the pipe to protect me if I fell. I was already wearing my harness and started to

walk along the pipe with the intention of hooking my harness to the lifeline further down

the pipe. I took about four steps in the direction of the lifeline along the pipe when I

slipped."

56. Once again, the witnesses for the First Defendant did not give any evidence to contradict the

Claimant. Desmond Durham did not look up to see what Tarran, Riaz or Ian were doing and

so he could not describe what existed at the level from which the Claimant fell. Tarran Singh

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gave evidence that at the higher level where he was working there was a catwalk about two

feet wide withrailings on both sides as well as a lifeline overhead. The catwalk was made of

steel and had a metal grating and the railings were about 3 feet in height and had a middle

bar. However, he was the first rigger to ascend the stairs and, under cross-examination, he

admitted that although he was in charge of the persons pulling up material, namely Riaz and

Ian, he did not look back for or see the Claimant. He went straight to the top and he thought

the Claimant knew what he had to do. He also admitted that he did not know where the

Claimant was or how he fell.

57. In the circumstances, I am prepared to accept the Claimant's evidence that at the lower level

where he was instructed by Mr. Rambharath to perform the task of hoisting materials from

the ground, there was no catwalk or railings. I also accept the Claimant's evidence that there

was nowhere for him to tie off in the immediate vicinity and that the nearest lifeline was 7

feet away.

58. Accordingly, I find that at the lower level where the Claimant was instructed to perform his

duties, there was unsuitable and/or insufficient and/or unsafe access thereto and egress

therefrom.

VI. Did Mr. Rambharath require the Claimant to walk across a hazardous

and/or slippery pipe for several feet without his harness being attached in order

to perform his duties?

59. Under cross-examination, the Claimant denied that he was in breach of proper procedure and

he did not agree that he was the sole cause of his fall. However, he admitted that the workers

were told by Mr. Rambharath at the tool-box meeting to maintain 100% tie off at all times.

This was confirmed by both Mr. Durham and Mr. Singh who explained that this meant that at

least one of the two safety straps must be hooked on to an anchorage point at all times.

60. I have already found that Mr. Rambharath instructed the Claimant to work at the lower level

and that at that level there was no catwalk or railings or overhead lifeline in the immediate

vicinity.

61. In light of these findings, therefore, I also find that Mr. Rambharath required the Claimant to

walk across a hazardous and/or slippery pipe for several feet without his harness being

attached in order to perform his duties.

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VII. Did the First Defendant provide to the Claimant adequate health and safety

training and/or orientation in accordance with accepted industrial standards

before commencing work?

62. In his witness statement, the Claimant said he started work with the First Defendant in or

about January 2003. He did not receive any formal training in respect of safety procedure but

gained experience on the job. He also said that he did not recall attending any safety

orientation from the First Defendant nor did he sign any document to say that he had

completed a safety orientation. He also did not recall receiving a safety pass. Further, he said

that at other jobs he had observed the presence of safety officers who were specifically

assigned the responsibility of ensuring that workers on the job site were safe and performed

their duties in a safe manner. However, on the day of the accident, he observed no such

procedures in place and he did not observe any safety officers.

63. Under cross-examination, however, the Claimant admitted that by the date of this accident in

October 2005, he was knowledgeable about building scaffolding and that he had spent about

700 hours doing such work at customers' premises. He also knew that he had to wear his

harness to maintain 100% tie off when working over 6 feet. On that date, there was a "tool

box" meeting in which all the employees were reminded about maintaining 100% tie off at all

times. To that extent, therefore, the Claimant contradicted his evidence-in-chief. Further, he

did not specify what other job sites he had worked at where safety passes were issued after

undergoing a safety orientation or where safety officers were assigned the responsibility of

ensuring the safety of the employees and compliance with instructions. In the absence of such

evidence, therefore, I am not satisfied that the Claimant has supported his allegation that

there was an acceptable industry standard with which the First Defendant had failed to

comply.

64. In the absence of such evidence, I am of the view that the Claimant had been provided with

adequate safety training and orientation prior to the date of this accident to enable him to

perform his duties.

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VIII. Did the First Defendant fail to provide the Claimant with suitable protective

equipment (including but not limited to non-slip footwear, footwear with

special grips or non-slip covers for his shoes) to protect him from slipping?

65. This issue requires me to determine whether the First Defendant failed to provide the

Claimant with suitable protective equipment (including but not limited to non-slip footwear,

footwear with special grips or non-slip covers for his shoes) to protect him from slipping.

66. The Claimant gave evidence that on the day of the accident he was wearing his helmet,

goggles, gloves, steel-tipped boots and safety harness with two lanyards. However, in

describing how he fell, he did not suggest that the cause of his fall was the unsuitability of the

protective equipment that he was wearing. In particular, he did not say that his footwear in

any manner caused him to fall. The pipe onto which he stepped was unpainted and

approximately 10 to 12 inches wide. As I understand his evidence, the cause of his fall was

the location of a life-line overhead some 7 feet away from where he was standing and his

attempt to step onto the narrow pipe without being tied off. He made about 4 steps in the

direction of the lifeline when he slipped and fell.

67. In my opinion, the Claimant was wearing suitable safety equipment when he fell.

Unfortunately, in his attempt to reach the overhead life-line, he slipped on the pipe and fell

because he was not tied off. In my opinion, therefore, the Claimant has not proved that the

First Defendant failed to provide him with suitable protective equipment to protect him from

falling.

IX. Did the First Defendant fail to implement suitable/sufficient protection

measures to prevent the Claimant from injuring himself from falling, including

the provision of railings and/or safety nets?

68. I have already found that the Claimant had been instructed by Mr. Rambharath to perform his

duties of hoisting material at a lower level than 50 feet and that at that level there was no

catwalk or railings or overhead lifeline in the immediate vicinity. It is also not in dispute that

there was no safety net in use at the site.

69. Section 21(2) of the Factories Ordinance imposes upon an employer an obligation, where any

person is to work to at a place from which he will be liable to fall a distance of more than 10

feet, to provide means, so far as is necessary and practicable, by fencing or otherwise for

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ensuring his safety. It is clear that the Claimant was instructed to work at a height well over

10 feet and there was no fencing in place at that level. The only safety measure in place was

that the workers were wearing harnesses which they were expected to fasten onto an

overhead life-line in order to maintain 100% tie-off at all times. In the event that a worker

slipped while performing his duties, he would be suspended in mid-air and not fall to the

ground. However, at the level where the Claimant was instructed to work, the lifeline was

located some 7 feet away from where the Claimant was standing after he came off the

stairway.

70. In my opinion, the means provided to the Claimant were insufficient to ensure his safety

since in order to reach the life-line, he was required to step onto the narrow pipe without

having anything to hold onto while executing this manoeuvre. In so doing, he was exposed to

the risk of slipping while walking along the narrow pipe and of falling to the ground before

he had succeeded in fastening his harness to the lifeline. It should also be borne in mind that

the First Defendant's system of work did not provide for the placement of a safety net below

the area where the workers were performing their job of erecting the scaffolding and the First

Defendant did not adduce any evidence to show why safety nets were not suitable or

reasonable.

71. In the circumstances, I find that the First Defendant failed to implement suitable or sufficient

protection measures to prevent the Claimant from injuring himself from falling.

X. Did the First Defendant fail to carry out a suitable risks assessment?

72. The First Defendant’s witness, Mr. Tarran Singh gave the following evidence with regard to

the assessment of the risks in respect of the scaffolding job at the Second Defendant’s

premises:

"The foreman and I went up on first day. We decided together how it was to be done.

We had to locate position that was safe for guys to sit down or stand up to take material

on top. Groundsman would be on ground and would send up material. We had to

decide where persons had to be to get material to pass to us. Riaz and Ian were to be

rope men..... We had toolbox meeting on Friday. On Friday we were told to follow what

foreman said to do. At mtg, I was told we had to go to top....... Shane and I went up and

determined what had to be done. Durham was supposed to be on ground.....We don’t

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walk on any pipe. We put planks to walk on. We don’t put up netting to secure that

person cannot fall off. At that time we did not use netting. When we were constructing

scaffolding, there was nothing below to catch person. The only thing to protect them

was lanyard and harness. If something happens at some point, you would go down."

73. Further, Mr. Archie gave evidence in general terms of the First Defendant’s health and safety

policies to minimize injuries. He also annexed a Report signed by the Marketing Manager,

Mr. Devan Sookraj but apart from the reference to the tool box meeting, there is no reference

therein to a risk assessment conducted by the First Defendant.

74. In my opinion, although Mr. Singh refers to a visit by the foreman, Mr. Rambharath and

himself on the day prior to the incident to evaluate and determine how the job was to be

performed and what duties would be assigned to the workers, his evidence does not refer

specifically to an assessment of the risks to which the workers would be exposed in

discharging their functions.

75. Accordingly, in the light of my earlier finding that the First Defendant failed to implement

suitable/sufficient protection measures to prevent the Claimant from injuring himself from

falling, I am of the opinion that the First Defendant failed to carry out a suitable risks

assessment in relation to the execution of this scaffolding job on 8th

October 2005.

XI. Were the passageways and gangways which the Claimant was required to use of

unsound construction and/or not properly maintained?

76. The Claimant did not give any evidence to prove that the passageways and gangways which

he was required to use were of unsound construction and/or not properly maintained. In any

event, I have already found that the Claimant was instructed to work at a lower level where

there was no catwalk or railings in place.

77. Accordingly, I decline to make any finding that the passageways and gangways which the

Claimant was required to use were of unsound construction or improperly maintained.

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XII. Was there an absence of fencing or other means to ensure the Claimant's safety?

78. The undisputed evidence is that at the level of the job site there was a gangway 2 feet wide

with 3 feet railings on either side. However, the evidence is also clear that at the lower level

from which the Claimant fell, there were no such railings.

79. In the circumstances, I find that there was an absence of fencing or other means to ensure the

Claimant's safety at the level where he was required to perform his duties.

XIII. Did the First Defendant fail to provide adequate supervision?

80. In considering this issue, I am of the view that I need to consider and determine whether the

First Defendant failed in its common law duty to provide to the Claimant proper and/or

adequate supervision and/or assistance and/or supervision and/or as stipulated in the Second

Defendant's Safety Handbook during the performance of his duties?

81. The Claimant did not give any evidence of safety requirements/ procedures or any

stipulations as to supervision contained in the Second Defendant's Safety Handbook dated 2nd

April 2005. Accordingly, I find that the Claimant has not proved that the First Defendant

failed to acquaint/and/or orient him with the requirements/ procedures or stipulations as to

supervision set out therein.

82. However, when I consider the evidence of the Claimant, Mr. Durham and Mr. Singh and, in

the absence of any evidence from Mr. Rambharath, I am of the opinion that the First

Defendant did not provide proper and/or adequate supervision of the Claimant. Mr. Durham

was instructed to cordon off the area with tape but he did not have any supervisory

responsibility towards the Claimant. However, both Mr. Rambharath, as the foreman, and

Mr. Singh, as the most senior rigger, should have ensured that there was proper supervision

of the employees. This is especially so because the Claimant had been instructed to carry the

task of hoisting the material from the ground at a lower level where there was no railing or

fencing and no overhead lifeline in the immediate vicinity and, most importantly, no safety

net in place below the workers. Mr. Singh gave evidence that he proceeded up the stairs but

he assumed that the Claimant was doing what he was instructed to do and so he never looked

back. Mr. Rambharath did not attend to give evidence as to the measures he took to ensure

that the Claimant could safely carry out his instructions at the lower level. I am of the opinion

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that if proper supervision had been exercised, the risk or danger of the Claimant stepping

onto a pipe without his lanyard attached may have been observed and instructions could have

been given to him to avert the risk of him slipping on the pipe and falling to the ground.

83. Accordingly, I find that the First Defendant failed to provide to the Claimant proper and/or

adequate supervision to ensure that he did not expose himself to the risk of slipping and

falling.

Conclusion

84. In the light of my earlier findings of fact on this issue, I find that although the First Defendant

held a safety orientation meeting before the commencement of scaffolding construction on 8th

October 2005 at which the First Defendant's employees, including the Claimant, were

instructed to maintain 100% tie off at all times, the Claimant was instructed to perform his

duties at a lower level than 50 feet in order to pass up the scaffolding to the other workers

who were erecting the scaffolding at the higher level. At that level, there was no railing or

fencing or lifeline in the immediate vicinity onto which the Claimant could fasten his harness.

In order to reach the overhead lifeline which was some 7 feet away, the Claimant was

required to walk across a narrow pipe for several feet without anything to hold onto. As a

consequence, the Claimant was exposed to the risk of slipping and falling to the ground

before he had succeeded in fastening his harness to the lifeline since there was no safety net

in place below him to avoid such an eventuality. In my opinion, therefore, the First

Defendant was in breach of its statutory obligations under Section 21 of the Factories

Ordinance by failing to provide and maintain a safe means of access to the place where the

Claimant was required to work and by failing to provide fencing or other means to ensure the

safety of the Claimant. Further, the First Defendant was negligent in failing to provide and

operate a safe system of work which would have prevented the Claimant from slipping and

falling and injuring himself.

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Contributory negligence

85. The First Defendant pleaded and sought to argue that the Claimant's negligence contributed

to his fall and his injuries.

86. As earlier stated, the burden lies upon the First Defendant to prove firstly that the Claimant

failed to take such care of himself as an ordinary man would take for his own safety and

secondly, that his failure to take care was a contributory cause of his slip and fall. It is not for

the Claimant to disprove that he was contributorily negligent.

87. In my opinion, the First Defendant failed to discharge this burden since its witnesses were

unable to give any evidence as to the cause of the fall. Neither Mr. Durham nor Mr. Singh

saw where the Claimant was or how he fell. Further, the First Defendant failed to call Mr.

Devan Sookraj to give evidence with respect to the investigation into the incident which he

conducted and the Report which he prepared. Instead, his Report was annexed to the witness

statement of Mr. Archie and it does not support the allegation that the Claimant failed to use

reasonable care for his safety and that he caused or contributed to his slip and fall.

88. Therefore, the First Defendant failed to prove that the Claimant was contributorily negligent.

Accordingly, I find that the Claimant's fall and consequential injuries were not caused or

contributed to by his negligence and I find that the First Defendant is wholly liable in

damages to the Claimant for breach of statutory duty under the Factories Ordinance and in

negligence.

Damages

Special damages

89. Annexed to the Claimant’s Re-Re-Amended Statement of Case is a schedule of Special

Damages with claims under the following heads; Professional Services, Travelling,

Medication, Nursing Care, Equipment, Medical Reports and Loss of Earnings, each of which

will be examined individually.

Professional Services

90. The Claimant has claimed for three visits to Doctors totalling $865.00. He provided receipts

that were stamped and signed by the Doctors for each visit. Two of the receipts were from

Dr. Krishna Maharaj, dated 12th

July 2006 and 17th

January 2007 for professional services

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rendered, totalling $350.00. The third receipt was from ‘Doctor’ Lionel Gaskin of the Soul

Mind and Body Institute, for medical consultation, in the amount of $515.00. Judy Gonzales

gave evidence that the Claimant visited the Soul Mind and Body Renewal Institute on three

occasions in or about April 2007 to obtain treatment options for his seizures. However,

neither the Claimant nor Judy Gonzales provided the Court with any information as to the

qualifications or experience of 'Doctor' Gaskin.

91. The Claimant had his first seizure in January 2006 and had been prescribed Tegretol by the

doctors at the San Fernando General Hospital from inception. After consulting Dr. Krishna

Maharaj, the Claimant was advised to continue taking Tegretol, which he continues to take to

date and which he now receives free of charge from the Chronic Disease Assistance Plan of

the Ministry of Health (C-DAP).

92. In the circumstance, I am prepared to permit the Claimant to recover the medical fees paid to

Dr. Maharaj but not the sum claimed for the consultation with ‘Doctor’ Gaskin. Therefore, I

will make an award in the amount of $350.00.

Travelling

93. Mr. Gonzales is seeking to recover the expenses he incurred in travelling to various Hospitals

and Doctors’ Offices. He did not provide any written receipts to prove the same but there was

agreement between the parties for payment of the amount of $528.00. Accordingly, I will

award the sum of $528.00 for travelling.

Equipment

94. The parties agreed to the sum of $465.00, the cost of crutches purchased by Mr. Gonzales and

therefore, I will make an award in that amount.

Medical Reports

95. The parties agreed to the sum of $75.00 and $1,875.00, the cost to obtain medical reports.

Therefore, I will make an award in the amount of $1,950.00.

96. In addition, the Claimant obtained a Medical Report from Doctor Mulrain on June 3rd

2013 at

a cost of $1,000.00. He provided the Medical Report and the receipt for $1,000.00. This

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report provided an up to date medical opinion on the Claimant’s injuries prior to the trial and

to inform the court about the progress of the Claimant’s recovery. I am of the view that it was

reasonable for the Claimant to seek this opinion in order to provide the court with the latest

information on his condition and to incur this expense. Accordingly, I will award the

Claimant the cost of obtaining the medical report in the amount of $1000.00.

Medication

97. The Claimant is seeking to recover the cost of Tegretol and painkillers for the period January

2006 to December 2010 and continuing, totalling $13,440.00 up to December 2010. Annexed

to his Witness Statement were a prescription for Motrin dated 02/02/06 and 2 prescriptions

for Tegretol dated 22/03/06 and 17/01/07. Also annexed were receipts from Handel’s

Pharmacy Ltd. for Tegretol dated 1/04/06 and June 2006 to present, although no present date

was included. The latter receipt indicated that the cost associated with a monthly supply of

Tegretol was $55.00.

98. Guidance on awards of special damages can be found in the decision of Bowen LJ in

Ratcliffe v Evans10

where he stated as follows:

“In all actions accordingly on the case where the damage actually done is the gist of the

action, the character of the acts themselves which produce the damage and the

circumstances under which these acts are done, must regulate the degree of certainty

and particularity with which the damage done ought to be stated and proved. As much

certainty and particularity must be insisted on, both in pleading and proof of damage,

as is reasonable having regard to the circumstances and to the nature of the acts

themselves by which the damage is done. To insist upon less would be to relax old and

intelligible principles; to insist upon more would be the vainest pedantry.”

99. In the case of Gunness and Another v Lalbeharry11

, the Court of Appeal ruled that the

Judge was wrong in finding that the Claimant had failed to prove loss and to disallow a claim

10

(1982) 2 QB 524

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in special damages relating to loss of items of jewellery, handbag, cosmetics and $25.00 cash.

Braithwaite JA stated that:

“there is no evidence to contradict the evidence of the appellant nor had she been

shown not to be a credible witness. There is therefore no justification for the judge’s

finding in this respect. The fact that her evidence is unsupported is clearly not sufficient

to deny her claim for a loss which must be taken, in the absence of evidence to the

contrary, in the circumstances of her loss of consciousness to be at least strong prima

facie evidence of the fact which she alleged”.

100. This approach was endorsed by the Court of Appeal in Great Northern Insurance Company

Limited v Johnson Ansola12

. Mendonca JA in delivering the judgement of the Court stated at

paragraph 97 as follows:

“...it seems clear that the absence of evidence to support a plaintiff’s viva voce evidence

of special damage is not necessarily conclusive against him. While the absence of

supporting evidence is a factor to be considered by the trial Judge, he can support the

plaintiff’s claim on the basis of viva voce evidence only. This is particularly so where

the evidence is unchallenged and which, but for supporting evidence, the Judge was

prepared to accept. Indeed in such cases, the Court should be slow to reject the

unchallenged evidence simply and only on the basis of the absence of supporting

evidence. There should be some other cogent reason.”

101. Adopting a similar approach, I am of the view that the Claimant's inability to produce all

the receipts for the medication he purchased is not unreasonable. There being no evidence

to contradict the unchallenged evidence of the Claimant, there exists a prima facie case that

the Claimant did expend monies to purchase this medication as prescribed by his medical

doctors. However, consideration must be given to the fact that in his Re-Re-Amended

Statement of Case, the Claimant sought to recover $20.00 per week for Tegretol, which

totals $80.00 per month which is at variance with the receipt which indicates that Tegretol

costs $55.00 per month. Further, at paragraph 20.3 of the Claimant’s principal witness

11

Civ App 41 of 1980 12

Civ App 169 of 2008

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statement, he stated that in February 2012, he visited the Chaguanas Health Facility for

treatment for his seizures and was prescribed Carbamazepine, the equivalent of Tegretol,

which is available from C-DAP. By his supplemental witness statement, the Claimant

stated that he now attends Eric Williams Medical Sciences Complex Neurosurgical Out

Patient Clinic where the doctors prescribe Tegretol to prevent the seizures. He annexed a

prescription form which indicates that he continues to receive the prescribed Tegretol each

month free of charge. Therefore, I will allow the cost of $55.00 per month for Tegretol

from January 2006 to January 2012 amounting to $3,960.00 and $200.00 per month for

pain killers from January 2006 to July 2014 amounting to $20,400.00. The total award for

the cost of medication will therefore be $24,360.00.

Nursing Care

102. The Claimant sought to recover $1,800.00 for nursing care provided by his mother, Judy

Gonzales. This figure is based on loss of earnings for 4 months at a rate of $450.00 per month

for the period October 2005 to January 2006. Mrs. Gonzales gave evidence that when the

Claimant was discharged from the hospital he was in a lot of pain and remained in bed most

of the time and needed help to do everything. As such, she stayed at home from her job with

the Unemployment Relief Programme (URP) and took care of him. However, the evidence as

offered by the Claimant’s mother in her witness statement suggests that she earned $450.00

per fortnight which is at variance with the pleading for the cost of nursing care. Further, in

cross examination, Mrs. Gonzales admitted that she failed to produce any payslips, cheque

stubs, job letter, bank statements or bring anyone from the URP to give evidence to prove

that she was in fact employed there.

103. Despite these obvious weaknesses in the evidence, I have considered the decision of

Cunningham v Harrison13

. In this case the court noted that it is right and just that if a wife

renders services to an injured party instead of a nurse, the injured party should recover

compensation for the value of the services that his wife has rendered, even though she has not

given up paid work to look after him and has only performed domestic duties in the house.

13

[1973] 1 QB 742

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104. Therefore, although the oral evidence of Judy Gonzales was unsupported by documentary

evidence to prove her employment in the URP, I am of the view that the services rendered by

her to the Claimant clearly calls for compensation. I note however that the accident occurred

on 8th

October 2005 and the Claimant was discharged on 14th

November 2005. Therefore, I

am of the opinion that a reasonable award for the nursing services rendered by Mrs. Gonzales

to the Claimant would be $1,350.00 for the period November 2005 to January 2006.

Loss of Earnings

105. The Claimant sought to recover loss of earnings at the rate of $572.77 per week, representing

his net weekly income as a Rigger, from 1st February 2007. At the time of the accident, the

Claimant earned $9.00 per hour when he worked at the First Defendant’s premises and

$15.00 per hour when he worked off-site, building scaffolding at customers’ premises. This

was confirmed by payslips submitted by both the Claimant and Mr. Archie, which showed

that he would take home $572.77 per week if he worked eight hours each day off site for the

entire week. The payslips provided by the Claimant showed that he was paid at the offsite

rate immediately after the accident until March 2006. No pay slips were provided for April

and May 2006 although the Claimant did not allege that he was not paid and he did not make

any claim for the amount. It should be noted, however, that the Claimant gave evidence that

in April 2006 he obtained temporary employment at Dennie’s Hardware.

106. In his evidence, Mr. Archie explained that the Claimant received workmen’s compensation in

the amount of $13,403.28 and he provided receipts signed by the Claimant for receiving

several payments between the period November 2005 to March 2006. Although the Claimant

confirmed at paragraph 22.5 of his principal witness statement that he received the sum of

$13,403.28 in workmen’s compensation, the receipts provided by the First Defendant total

$13,316.73.

107. In any event, the Claimant returned to work at the First Defendant’s premises in June 2006 and

was assigned the task of driving the forklift and was paid at the basic rate of $9.00 per hour.

In his witness statement, the Claimant alleged that he only worked for about 33 hours

because he suffered headaches and seizures that prevented him from working. However,

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annexed to his witness statement were payslips for several days work during the period July

2006 to January 2007 at a rate of $9.00 per hour. Mr. Archie confirmed that the Claimant

returned to work in June 2006 and produced a ‘fit to work’ certificate whereupon he was

employed as a labourer and was assigned light duties. Mr. Archie stated that the Claimant

worked until 11th

February 2007 during which time no complaints were made by the

Claimant of any difficulty in completing the tasks assigned. He also provided several payslips

which confirmed that the Claimant was employed by the First Defendant from June 2006 to

February 2007.

108. It is the Claimant’s evidence that having suffered another seizure on 13th

January 2007, his

father submitted a sick leave on his behalf on 17th

January 2007 to the First Defendant. The

sick leave certificate was not annexed to his witness statement and as such, the court is

unaware of the period of time for which he was on approved sick leave. The court notes that

the last payslip provided by the Claimant is for the period January 2nd

2007 to January 5th

2007. This gave the court the impression that after the seizure the Claimant was unable to

return to work for an entire month. However, the First Defendant provided payslips for the

period January 8th

to January 12th

, January 22nd

to January 26th

, January 29th

to February 1st

and February 5th

to February 8th

, all in the year 2007.

109. Further, the Claimant alleged that upon his return to work at the First Defendant’s premises

on 14th

February 2007, Mr. Archie said to him, “You still working here.” In response, the

Claimant asked Mr. Archie what he meant by his comment but Mr. Archie did not reply.

According to the Claimant, he felt humiliated by Mr. Archie's remark and, therefore, he did

not return to work at the First Defendant’s premises. In Mr. Archie’s supplemental witness

statement, he denied seeing the Claimant on that day or uttering such words to him.

110. In cross-examination, Counsel for the Claimant questioned Mr. Archie on this issue. She

asked “Now when he left the job, according to you, you never saw him on that day, you recall

who you see on a day on a job site? You have so many workers what made you recall this

specific day that you didn’t see him on that day?” Mr. Archie’s responded “Well I am sure I

never spoke to him about anything like that, because I would have remembered.” Based on

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this evidence, on a balance of probabilities, I am prepared to accept the Claimant's evidence

that Mr. Archie made the remark to him on the day that he returned to work. However, I am

not satisfied that the Claimant's decision to leave his employment with the First Defendant as

a consequence of that remark was appropriate, rational or reasonable. A more appropriate,

rational and reasonable response would have been for the Claimant to raise his concerns with

the Management of the First Defendant and to seek an amicable resolution of his complaint.

111. According to the Claimant, after the incident with Mr. Archie, the next time he was able to

secure temporary employment was at Dennie’s Hardware in April 2008 and July 2008.

However, he did not give any evidence concerning his attempts to secure employment

between 14th

February 2007, when he left the job, and April 2008.

112. The Claimant then stated that after his stint at Dennie's Hardware, he secured employment in

2011 at Chemplast (Caribbean) Limited, packing boxes and material for which he was paid

$15.00 per hour. At the date of signing his principal witness statement, 4th

June 2012, the

Claimant was still employed at Chemplast. However, he alleges that in August 2012, he had a

quarrel with another worker and left the compound. When he returned the following day, he

was informed that his services were terminated. The Claimant’s evidence is that since then all

attempts to obtain employment have proven futile. However, he did not give details of any

specific attempts he made to secure alternative employment.

113. When relief is sought for loss of earnings, a Claimant must provide documentary evidence to

prove what is claimed. This was reaffirmed by the Court of Appeal in the decision of Dennis

Peters Edwards v Namalco Construction Services Limited and Guardian General

Insurance Company Limited14

where it was highlighted that “In order to prove his loss in

respect of pre trial loss of earnings the appellant had to show that the injury had rendered

him incapable of performing any work from the date of his injury to the date of

trial.”(emphasis mine) It is clear, however, that this is not a case in which the Claimant’s

injury is such that it rendered him incapable of performing any work. The evidence of the

Claimant himself has shown that he is capable of performing some work and the medical

14

C.A. No. 28 of 2011

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report of Dr. Maharaj dated 23rd

February 2011 indicated that he should be able to do simple

manual work.

114. The Claimant is seeking to recover loss of earnings from February 2007. Mr. Gonzales’ last

day of work at the First Defendant’s company was 8th

February 2007. He obtained

employment at Dennie’s in April 2008 and July 2008. He was also employed at Chemplast

from November/ December 2011 to August 2012.

115. In the Privy Council decision of Terrance Calix v The Attorney General of Trinidad and

Tobago Privy Council Appeal No 0003 of 2012 reference was made to the judgment in

Geest plc v Lansiquot (St Lucia)15

:

“It should however be clearly understood that if a defendant intends to contend that a

plaintiff has failed to act reasonably to mitigate his or her damage, notice of such

contention should be clearly given to the plaintiff long enough before the hearing to

enable the plaintiff to prepare to meet it. If there are no pleadings, notice should be

given by letter.”

116. The First Defendant, in its Re-Re-Amended Defence, pleaded that the Claimant failed to

mitigate his losses. It must be pointed out that it is for the Defendant to show that any steps

taken by way of purported mitigation were unreasonable and not for the Claimant to prove

that the steps taken were reasonable: Geest plc v Lansiquot (St Lucia). If the Defendant

fails to show that the Claimant ought reasonably to have taken certain mitigating steps, then

the normal measure will apply. Pill LJ in Froggatt v LEP International Limited16

stated as

follows:

“Where in circumstances such as the present defendants are seeking to show

unreasonableness in the claimant, it is customary to produce evidence, in one way or

another, as to alternative employments which are open to him and for which he could

have applied. There is a conspicuous lack of any such evidence in this case and in his

judgment the judge, understandably in that event, makes no reference to the types of

15

[2002] UKPC 48; [2002] 1 WLR 3111, para 16 16

[2002] EWCA Civ 600

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work which would have been open to the claimant, or to his prospects in the Manchester

area of obtaining such lighter work. There is no suggestion that the claimant had any

technical or clerical skills which would have made him readily suitable for sedentary

work of that kind.”

117. In my opinion, the burden placed on the First Defendant to prove that the steps taken by the

Claimant to seek alternative employment were unreasonable is premised on the Claimant

leading evidence that he took some steps to find alternative employment. In this case, the

Claimant has failed to give any evidence of attempts to find alternative employment between

February 2007 and April 2008 and thereafter between July 2008 and 2011, before he secured

the job at Chemplast. It is accepted that the Claimant is no longer suited for work as a Rigger

but Dr. Maharaj has indicated that he may be suited for light manual work. The Claimant

stated that he worked in April and July 2008 at Dennie’s Hardware but he did not indicate the

reasons he worked there for such a short period of time nor he did not provide any causative

link between the injuries he sustained in the accident and his employment for such a short

period of time.

118. In any event, having regard to the Claimant's limited qualifications and now limited work

scope, I am of the opinion that had he made reasonable efforts to find alternative

employment, he would have probably earned no higher than minimum wage. Had he

continued working at the First Defendant as a Rigger, he would have earned a minimum of

$15.00 per hour when he worked off site. Although it is clear from the cross-examination of

Mr. Archie that the rate of pay for Riggers increased over time, the court has not been

provided with any documents or figures detailing the increase each year. In cross-

examination, Mr. Archie indicated that at the date of the trial, Riggers earned approximately

$35.00-$40.00 per hour. However, the court cannot embark on a speculative estimation of the

hourly pay that the Claimant would have received as a Rigger over the period 2007 to 2014.

In addition, the court notes that by the Claimant’s pleaded case he sought to recover the sum

of $572.77 per week (net), calculated at a rate of $15.00 per hour.

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119. As alluded to earlier, the Claimant’s obvious ability to earn cannot be ignored. This court is

of the opinion that had serious efforts been made to secure alternative employment, the

Claimant would have secured a job paying at least minimum wage, despite his injury. This is

despite Mr. Archie’s evidence that he would no longer be willing to hire the Claimant even as

a groundsman with his complications. It remains a fact that the Claimant did not provide the

court with any evidence as to the efforts he made to secure alternative employment. Doing

the best I can in the circumstances, I am prepared to award the Claimant the sum of

$81,704.00 representing the difference between what he would have earned had he continued

working as a Rigger during the period 1st February 2007 to July 2014 at a rate of $15.00 per

hour (7 years and 6 months/ 384 weeks at a net rate of $572.77 per week =$219,943.68) and

the amount he would have earned had he obtained a minimum wage job from February 2007

to trial(7 years and 6 months/ 384 weeks at a rate of $360.00 per week ($9.00 per hour for 8

hours per day for 5 days a week) =$138,240.00).

General Damages

120. In determining the general damages to be awarded to the Claimant, I am guided by the

principles set out in Cornilliac v St. Louis17

, as follows:

a) the nature and extent of the injuries sustained;

b) the nature and gravity of the resulting physical disability;

c) pain and suffering;

d) loss of amenities;

e) the extent to which pecuniary prospects were affected.

Nature and extent of the injury sustained and resulting physical disability

17

(1966) 7 W.I.R. 491

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121. After the accident on 8th

October 2005 the Claimant was taken to the Accident and

Emergency Department of the San Fernando General Hospital. The Casualty Doctor who

treated him recorded the following injuries:

1) Left inferior pubic rami.

2) Right mid shaft femur.

3) Multiple soft tissue injury.

4) Cerebral concussion.

5) Cerebral contusion.

122. While warded at San Fernando General Hospital, the Claimant underwent surgery to align the

bones in his right thigh and a K-nail was inserted into his thigh. After spending

approximately 5 weeks at the San Fernando General Hospital, Mr. Gonzales was discharged

on 14th

November 2005. Even after he was discharged, he was unable to walk and remained

in bed most of the time. To receive follow up treatment, Mr. Gonzales attended the

Orthopaedic Clinic, the Physiotherapy Clinic and the Neurosurgical Clinic on numerous

occasions.

123. Attached to his witness statement was a medical report dated 24th

April 2007 signed by Dr. Obi

Chizoba of the San Fernando General Hospital. This report confirmed the neurosurgical

diagnosis of the Claimant as extracted from his medical records. It stated as follows:

“On examination he had depressed consciousness with Glasgow Coma Score of 10/15,

right supra orbital laceration with peri orbital swelling, scrotal haematoma and right

thigh deformity and swelling.

X-ray of the pelvis, right thigh showed fracture of femur and pubis femoral. CT scan of

the Brain showed multiple cerebral contusions. Diagnosis of multiple cerebral

concussions was made in a patient with pelvic a femoral fracture and scrotal

haematoma.

He was admitted for close neurological observation and was managed conservatively

with anticonvulsants, antibiotics, analgesics and other supportive care. His recovery

from the neurosurgical problems was uneventful and he was discharged to

neurosurgical clinic on 21st October 2005....”

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124. A Report signed by Dr. Sieunarine dated 15th

November 2007 was attached to Mr. Gonzales’

witness statement. This report confirms that the Claimant was seen in the Orthopaedic

Department and the medical records confirmed that the Claimant experienced pain, swelling

and deformity of the right thigh. X-rays revealed a fracture of the left inferior ramus in the

pelvis and a fracture of the mid shaft of the right femur. The report stated as follows:

“A Steinman’s pin was inserted into the Claimant’s right Tibia and he was admitted to

the Orthopaedic Ward for fifteen pounds of skeletal traction of the right lower limb”.

125. Dr. Sieunarine also stated in his report that on 8th

November 2005, the Claimant had surgery

and had open reduction and K-nailing of the right femoral fracture. He was discharged from

the Ward on 14th

November 2005 and remained non-weight bearing on the right lower limb

using crutches for approximately 3 months. He received follow-up treatment in the

Orthopaedic Out Patient Clinic. On 15th

November 2007, the Claimant complained of

intermittent pain in the right thigh and was full weight bearing with a mild limp.

126. Also attached to the Claimant’s witness statement was a medical report dated 15th

November

2007, confirming the orthopaedic injuries suffered by the Claimant. For the first time, in or

around January 2006, the Claimant experienced a seizure and was taken to the San Fernando

General Hospital where he was advised to take Tegretol 200mg. He visited Dr. Maharaj on

6th

January 2006 to obtain a second opinion. Dr. Maharaj prescribed the use of Tegretol

100mg three times daily. Mr. Gonzales suffered another seizure around the first week of

March 2006 and again visited Dr. Maharaj. During this visit, the Claimant’s mother informed

Dr. Maharaj that since the accident the Claimant would get vex easily and would quarrel with

his brothers and sisters. Despite the use of Tegretol, Mr. Gonzales continued to experience

headaches, seizures, blurred vision when exposed to bright sunlight and he also had trouble

remembering. Attached to the Claimant’s witness statement was a report signed by Dr.

Joseph Ramdhanie confirming that the Claimant was seen on 28th

February 2012 at the

Chaguanas Health Facility for a seizure and superficial lacerations to his left upper lip as a

result of falling during the seizure.

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127. The complaints made by Mr. Gonzales and his mother to Dr. Maharaj were recorded by Dr.

Maharaj and included in his medical report dated 23rd

February 2011. On 6th

January 2006

Mr. Gonzales complained about headaches and a single episode of loss of consciousness.

However, upon examination, Dr. Maharaj diagnosed grand mal seizure but noted that there

was no abnormal neurology. He referred the Claimant for a CT scan, the results of which

were normal. The Claimant suffered one seizure before his next visit to Dr. Maharaj on 8th

March 2006. On 28th

June 2006 the Claimant visited Dr. Maharaj and complained of

headaches. On visiting Dr. Maharaj on 17th

January 2007 the Claimant complained about a

seizure he suffered a week before. On 18th

February 2007, Dr. Maharaj examined Mr.

Gonzales and in the medical report dated 23rd

February 2011, he summarised his findings as

follows:

On interviewing on 18th

February, 2011 he said he suffered a seizure on September

2010 and another on December 2010. There is no history of seizures before 8th

October

2005. No family history of seizures…His complaints on 18th

February 2011 were:

Headaches - which occurs three times a week and lasts for the whole day if he does not

take Panadol. He said Panadol relieves the headaches.

Forgetfulness - he said he does not remember what he is told to do for example, when

his mother sends him to the shop he forgets what she sends him to buy.

Blurred Vision - This occurs when he is exposed to bright sunlight.

His mother says he gets vex very quickly and quarrels with his brother and sister and

“when he gets vex he gets fits sometimes.

On examination his speech was normal he understood questions readily and his

responses were appropriate and quick, however, on asking him to subtract serial 7’s

from one hundred his answers were delayed but correct. He was able to recall five

objects shown to him after a period of five minutes. His gait and mono pedal stance

were normal. His cranial nerves were intact. There was no papilloedema. His cranial

vault was intact. He had a full range of cervical, hip and knee movements. His deep

tendon reflexes and plantar responses were normal. There was no muscle group

weakness, wasting or fasciculation. The tone of his muscles was normal….It is my

opinion that this patient suffered the following injuries in the fall on 8th

October 2005.

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A closed moderately severe head injury

A laceration to his right eye lid

A fractured right femur.

The Laceration has healed satisfactorily. The right femur has healed satisfactorily

following surgery with no evidence of angulation or shortening. He has full range

movement at the Right knee and his joints. It is unlikely that there will be complications

in the future due to his fractured femur.

The recovery from his closed head injury has not been very good. The seizures he now

suffers most probably is due to brain injury due to his fall on 8th

October 2005. His

“getting vex very easily” is probably personality changes due to secondary brain injury

following his fall of 8th

October 2005.

His forgetfulness is also consistent with post concussion syndrome. His seizures,

headaches, forgetfulness and getting vex will continue indefinitely.

This patient can look after himself and does not need any one to care for him. He should

be able to do simple manual work but should not work on heights, climb, drive a motor

vehicle or work near open machinery.

I estimate his permanent partial disability resulting from his seizures, forgetfulness,

personality change and headaches to be thirty five percent at this point in time. His

condition may deteriorate in the future.

128. The Claimant filed a supplemental witness statement on 4th

June 2013 in which he sought to

update the court on the effects of his injuries since the filing of his principal witness

statement. He explained that he continued to experience headaches and suffered two seizures

in December 2012. During the first seizure he fell to the ground and hit his face causing

injury to his lower lip. During the second seizure, he injured his upper lip and eye and lost his

front tooth, but no claim has been made for replacement of same.

129. A Medical Report of Dr. Mulrain dated 5th

June 2013 was filed on behalf of the Claimant.

Doctor Mulrain examined the Claimant on 3rd

June 2013 and noted that the Claimant’s right

thigh had completely healed and that he was able to walk unaided without a limp. He enjoyed

full range of movement of his hips and knee. It was also noted that the Claimant complained

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of pain and discomfort in his thigh aggravated by walking or standing for periods in excess of

15 minutes. The Claimant’s permanent partial disability from the fractured femur was

assessed at 7%.

Pain and suffering and loss of amenities

130. It is certainly not in dispute that the Claimant would have endured immense pain having

fallen approximately 40 feet to the ground. By his principal witness statement, the Claimant

testified that after the accident on 8th

October 2005, he woke up on or around 12th

October

2005 in severe pain in his right groin, right leg and head, whilst restrained to a bed. I note that

the History and Physical Record Report from the San Fernando General Hospital dated 8th

October 2005 at 11:30 am indicated that the Claimant was in pain, struggling but restrained

as Orthopaedic Surgeons tried to immobilise him. However the record also indicated that the

patient was drowsy but responded to calls. The Claimant also stated that his groin was

swollen, the injury to his head was dressed with a bandage and he received stitches over and

under his eye, which felt uncomfortable.

131. The Claimant also stated that during the period he was hospitalised, he could not get up, walk

around, go to the bathroom, bathe or change his clothing. The pain he experienced was such

that he had to remain in the same position on the bed to avoid the pain experienced when

moving. He had difficulty sleeping due to constant pain and discomfort.

132. The Claimant's evidence is that even after the surgery was performed on his thigh, he

experienced terrible pain which painkillers did not relieve. Even after he was discharged from

the hospital, he continued to experience pain and needed help to do everything. At home, it

was uncomfortable for him to sleep and he continuously endured headaches, dizziness,

nausea and vomiting. He was aided in walking by crutches, to which he had to get adjusted.

In January 2006, the Claimant had his first of several seizures, for which he was advised to

take medication by various doctors. Prior to the accident, the Claimant never had seizures.

133. By his supplemental witness statement filed on the morning of the trial, the Claimant

contended that up until the date of the filing of the witness statement, he continued to

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experience pain and cramps in his right leg whenever he sits or stands for long periods of

time of about 10 minutes and whenever the weather turns cool. Under further cross-

examination, however, the Claimant admitted that while giving evidence in an air

conditioned court for an extended period of time, he did not complain about cramps or pain

and he did not request permission to go outside to stretch his leg. This is despite him

specifically stating at paragraph 4.2 and 4.3 of his witness statement that:

“the degree of the pain varies. Sometimes the pain is unbearable and I am unable to do

anything. At other times to reduce the pain I try to change my position and stretch out

my muscles or try to walk out the pain or massage the pain away. Sometimes the pains

and cramps ease if I take pain killers such as Panadol to ease the pain….The pain I

experience usually eases when I take Panadol but not completely.”

134. In addition, the Claimant stated in his supplemental witness statement that he continued to

experience headaches after filing his principal witness statement. He also stated that he

continued to have seizures in December 2012 which would cause him to fall to the ground

and, after the seizure, he would experience pain all over his body, especially in the areas

injured or bruised when he fell. He explained that it took approximately three days to recover

from the last seizure, during which time his mother provided him with Panadol to ease the

pain and also rubbed and massaged his skin with “hot/ice rub” to ease the pain in his muscles.

135. The Claimant’s mother gave evidence that since the accident, the Claimant is slower and

cannot jump or run as he did prior to the accident. She also stated that he cannot walk far

distances or remain standing or seated for long periods of time. In addition she stated that her

son could no longer work in bright sunlight and complains about blurred vision

Extent to which pecuniary prospects are affected

136. The Claimant pleaded that by reason of his injuries, he is and will remain handicapped on the

open labour market. The Claimant was born on 10th

February 1985. At the time of the

accident he was 20 years old and at the date of this judgement, he is 29 years old. He claims

to have two CXC passes and at the time of the accident he was employed as a Rigger with the

First Defendant. After the accident on 5th

October 2005 Mr. Gonzales resumed work in June

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2006, after a period of approximately eight months. He worked intermittently between June

2006 to January 2007 at the First Defendant’s premises, driving a forklift. In January 2007,

Mr. Gonzales suffered a seizure and submitted a sick leave certificate to his employers. His

evidence is when he returned to work on 14th

February 2007, he was humiliated by Philip

Archie and left the First Defendant’s premises and did not return to work.

137. The Medical Report of Dr. Maharaj outlined that the Claimant can do simple manual work

but should not work on heights, climb, drive a motor vehicle or work near open machinery.

He estimated the Claimant’s permanent partial disability at 35 %.

138. After securing employment at Dennie’s Plumbing and Construction Limited in 2008, the

Claimant was assigned to carry tools and materials as need. However, as a result of

headaches, seizures and exposure to the sun, the Claimant only worked for a short period and

earned approximately $3,135.00. Thereafter, the next time the Claimant was able to secure

employment was at Chemplast (Caribbean) Limited in November/December 2011where he

was assigned the task of packing boxes and other material and was paid $15.00 per hour. He

worked at Chemplast until August 2012 when he had an argument with another employee

and left the compound. In cross-examination, he said he left to avoid the seizure that usually

occurs when he is upset. However, he did not inform anyone or write to his supervisor to

explain why he left. On returning to work the following day, the Claimant’s evidence is that

he was told by his supervisor that he had been terminated. No letter of termination from

Chemplast to the Claimant has been presented to the court to confirm that he was in fact

terminated.

139. By his supplemental witness statement, the Claimant contended that he has been unable to

secure alternative employment despite sending one application to a nail factory for

employment. Although he considered improving his qualifications in safety training or in

other fields, he did not do so because he was concerned that he will not be able to work in an

office environment because he is unable to stand for long periods and he experiences pain

and cramps in his right leg when in air conditioning.

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Non pecuniary General Damages

140. The Claimant seeks an award of $450,000.00 for pain and suffering and loss of amenities.

The following cases with similar injuries were reviewed to determine the trend of awards for

injuries similar to that suffered by Mr. Gonzales.

Cases

The Claimant relied on the following cases

141. In Clem Lewis v Trinidad and Tobago Electricity Commission18

, delivered on 3rd

October

2003, there were notable similarities between the injuries suffered by Mr. Lewis and the

Claimant in the present case. Some of the injuries outlined by Stollmeyer J, (as he then was)

included personality change, recreational, social and personal life altered to the detriment of

Mr. Lewis, closed head trauma, though no physical damage to the brain itself brain damages

remains a possibility, injuries to his neck and back, he suffers from a slight limp and

experiences pain, on occasion more severely than others. He also suffers seizures, depression,

becomes frustrated and gets angry, demonstrates aggression and can become violent, lack of

concentration, loss of memory, permanent partial disability of 20% and erectile dysfunction.

In this case, an award of $400,000.00 was made for pain and suffering and loss of amenities.

142. In my opinion, the diagnosis of permanent partial disability was lower than the Claimant's,

although Mr. Lewis suffered more notable injuries than the Claimant including erectile

dysfunction and injuries to his neck and back.

143. In Dexter David v Minister of National Security19

, delivered on 12th

January 2004, an

award of $200,000.00 was made for pain and suffering and loss of amenities to a Claimant

who suffered fracture of the neck and right femur and comminuted fracture of the mid shaft

of the right femur which left him with a one inch shortening of the right leg and limited range

of movement in right knee. This resulted in the Claimant walking with a significant limp and

weakness in both the thigh and hip muscles.

18

HCA. Cv. S587 of 1994 19

HCA 1838 of 2002

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144. In my opinion, these injuries were similar to that suffered by the Claimant to his leg although

the resulting effects of these injuries to Mr. David were more severe than that of the Claimant

in this case.

145. In Ian Sieunarine v Docs Engineering Works20

delivered on 24th

May 2005 by Rajnauth-

Lee J. (as she then was), an award of $200,000.00 was made for pain and suffering and loss

of amenities to a Claimant who suffered craniectomy with a hemorrhagic contusion, that is

bruising of the brain and a small post-operative fronto-parietal subdural haematoma. Since

the accident, the plaintiff had headaches, dizziness, and forgetfulness with poor

concentration, personality change, noise intolerance plus blurred vision, slurred speech and

impotence. The plaintiff sustained a depressed skull fracture with underlying haematoma

requiring surgery plus a hemorrhagic cerebral contusion with right sided weakness, dysphasia

and seizures, plus post traumatic syndrome.

146. In my opinion, although the diagnosed injuries suffered by Mr. Sieunarine were different to

those suffered by the Claimant in this case, there were several notable similarities between

the effect of the injuries upon Mr. Sieunarine and upon the Claimant in this case.

147. In Cindy Kanhai v Miguel Mohammed and others21

delivered by Master Paray-Durity (no

date for delivery given on judgment), an award of $250,000.00 was considered reasonable for

pain and suffering and loss of amenities. The Claimant suffered fractures of the tibiae and

fibulae of both legs, shortening of one leg and had to undergo further surgery to correct her

disability which would entail further pain and suffering. As at the date of the accident, the

Claimant was 20 years old and enjoyed horseback riding every week, swimming at the beach,

hanging out with friends and family and dancing. After the accident the Claimant had an

unsightly 19 cm scar on the front of her leg.

148. In my opinion, the injuries sustained by Ms. Kanhai in this case are similar to the Claimant's

leg injury. However, the more severe and longer lasting injuries suffered by the Claimant to

his head were absent in this case.

20

HCA 02387 of 2000 21

CV 2006 – 01087

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149. In Elva Dick-Nichols v Jayson Hernandez and Capital Insurance Company Limited22

,

delivered on 27th

June 2008, Pemberton J. awarded $400,000.00 for pain and suffering and

loss of amenities. This sum was considered adequate to compensate a Claimant who

sustained the following injuries: Multiple lacerations and abrasions on the left forehead,

tenderness in the pelvic region, small puncture wounds with swelling and tenderness over the

tibia of the left leg, marked diastasis on the pubic symphysis of the pelvis, a comminuted

fracture of the left tibia, fracture of the 5th

and 6th

ribs bilaterally and fracture of the floor of

the left orbit.

150. In my opinion, similar leg injuries were sustained by the Claimant in this matter but the

injuries to his head were more severe than that sustained by Ms. Dick.

151. In Ramnarine Sam v The High Commissioner of India, Bryan Boodram, New India

Assurance Ltd23

, delivered on 23rd

July 2008, Stollmeyer J. (as he then was) awarded

$275,000.00 for pain and suffering and loss of amenities to the Claimant who suffered the

following injuries: head injury which resulted in a blood clot on the left side of the brain

causing right-sided dysfunction as a consequence of a stroke. The clot was relieved by

surgery (a craniotomy) and the Claimant suffered seizures. The Claimant used a cane to walk

and was unsteady, his speech was slurred. He complained of headaches, (for which he took

Motrin sometimes three daytimes daily), dizziness and memory lapses.

152. In my opinion, the Claimant's injuries and the effects of same can be considered more severe

than that sustained by Mr. Sam.

The First Defendant relied on the following cases:

153. In Harold Mitchell and others v Pandora Antoine and Allan Alexander24

, delivered on 1st

November 2002 an award of $90,000 was made by Best J for general damages. This case can

be distinguished because of the difference in age of the Claimant who was an eight year old

child who suffered injuries to his head, irritability and lacerations of the tempero-perietal

scalp fracture of the left femur, flexion of the left knee was slightly decreased with pain at the

extremes of movements and two centimeter shortening of the left lower limb. The Judge

22

HCA S-1449 of 2004, CV 2006 – 01035 23

CV 2007 – 00206 24

HCA 1406 of 1991

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noted that the injured child did not give any evidence and as such there was no evidence as to

the intensity of the pain and suffering.

154. In my opinion, this case is not particularly helpful because the loss of amenities to a child, who

has his entire life ahead of him, will be significantly greater than that of an adult and there

was an absence of evidence as to the pain and suffering endured by the child.

155. In George Cadogan v Godwyn James25

, delivered on 19th

January 2005 by Narine J. (as he

then was), an award of $80,000.00 was made for general damages to a Claimant who was

injured in an accident. The injuries sustained by the Claimant were laceration to his scalp,

neck pain, a fractured leg. After treatment, the Claimant continued to experience headaches,

dizziness, neck pain and pains to his right forehead. He was diagnosed as suffering from

scalp neuralgia, post concussion syndrome and neck strain. The doctor assessed his

permanent partial disability as 30%.

156. In my opinion, these injuries were less severe than those suffered by the Claimant in this

matter.

157. In Indra Williams v Lahochan Matasaran26

delivered by Master Paray-Durity (no date for

delivery given on judgment), an award of $150,000 was made for pain and suffering and loss

of amenities. The Claimant was involved in an accident after which she experienced

unbearable pain to her head, feet and right eye. At the hospital, her legs were placed in casts

which remained on for four months after she was discharged from the hospital. She wore

drips for two weeks, was unable to swallow food and a tube was inserted in her for two

weeks to assist in the passing of urine. She complained that the tube caused discomfort and

being bed ridden for six weeks caused bed sores on her back and buttocks. The Claimant

complained of headaches every day, as well as swelling of feet when she standing for long

periods of time and scars which caused her embarrassment.

25

HCA 1915 of 1997 26

HCA S 353 of 2001

of 60

158. In my opinion, these orthopaedic injuries and complaints were similar to those experienced

by the Claimant in this matter. However, the head injuries sustained by the Claimant and the

resulting seizures and headaches can be considered more severe.

159. In my opinion, having regard to my assessment of the Claimant’s evidence and consideration

of the awards in the above mentioned cases, I consider a reasonable award for the Claimant's

pain and suffering and loss of amenities to be $450,000.00.

Pecuniary General Damages

160. As stated in the McGregor on Damages27

, “the function of the pecuniary heads of loss is to

ensure that the claimant recovers, subject to the rules of remoteness and mitigation, full

compensation for the loss that he has suffered”. The general method of assessment is the well

known multiplier/multiplicand method. However, where the circumstances of the case are

such that there is uncertainty in determining the future pattern of earnings had the Claimant

not been injured, the conventional approach is called into question and a lump sum is

awarded.

Future medical expenses

161. By submissions filed on October 8th

2013, the Claimant seeks an award of upward

$150,000.00 for the cost of future medication and treatment.

162. The medical report of Dr. Maharaj dated 23rd

February 2011 stated that the fractured femur

had healed satisfactorily and the Claimant had full range of movement at the right knee and

hip joints and it was unlikely that there would be complications in the future due to the

fractured right femur. He stated, however, that recovery from his closed head injury had not

been very good and that the seizures, headaches, forgetfulness and getting vex easily would

continue indefinitely. He estimated the Claimant's permanent partial disability to be 35% and

stated that this condition may deteriorate in the future.

27

paragraph 35-056 of McGregor on Damages 18th

Edition

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163. By his supplemental witness statement filed on 4th

June 2013, the Claimant indicated that he

returned to the Orthopaedic Out Patient Clinic at the San Fernando General Hospital and had

an X ray done. He also averred that he continued to experience varying degrees of pain and

cramps in his right leg when sitting or standing for long periods or when the weather turns

cool. To reduce the pain, the Claimant would use painkillers.

164. With regards to the injuries sustained by the Claimant to his head, by his supplemental

witness statement, the Claimant indicated that he continued to experience headaches and

seizures. He continued to attend the Neurosurgical Out Patient Clinic at the Eric Williams

Medical Sciences Complex and attended as recently as January 2013. His evidence was that

he continued to take Tegretol tablets twice daily to try to prevent the seizures. The Claimant

has not provided any receipts to prove that he actually purchased pain killers and Tegretol.

165. As was brought out in cross-examination, the Claimant can in fact sit for an extended period

of time without pain. I have formed the impression that the Claimant has exaggerated the

severity of the pain he experienced. In fact, I believe that his injuries have been well

managed. However, I am of the opinion that despite his exaggeration, I am satisfied that the

Claimant will incur some future medical expense as a result of the injuries sustained in the

accident. The prognosis of Dr. Maharaj suggested that his seizures, forgetfulness, personality

change and headaches may deteriorate in the future. I am of the view that the severity of the

pain has diminished with time as the Claimant was clearly able to sit in court for an extended

period of time without complaint.

166. The evidence provided by the Claimant and Judy Gonzales clearly shows that he receives

Tegretol or a substitute, Carbamazepine, free of charge under C-DAP and as such I will not

award the amount claimed. Although I have formed the opinion that the Claimant has

exaggerated his pain, his oral evidence that he continues to experience headaches is

supported by the overwhelming medical evidence that he suffered from seizures and will

experience headaches. Therefore I will award the Claimant $50.00 per week for Panadol. I

will adopt a multiplier of 21. This award of $54,600.00 ($50 x 52 weeks x 21) takes into

account the contingencies of life and the fact that a lump sum payment is being made.

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Future Loss of earnings

167. By written submission filed on 8th

October 2013, Counsel for the Claimant has submitted that

he is entitled to the sum of $1,638,819.00 for loss of future earnings, calculated at a rate of

$1,500.75 per week for 21 years. By its written submission filed on 30th

July 2013, the First

Defendant has submitted that this court should use an annual multiplicand of $11,700.00 and

a multiplier of 18.

168. At the time of the accident, the Claimant was employed as a Rigger with the First Defendant

Company and earned $9.00 per hour when he worked at the First Defendant’s premises and

$15.00 per hour when he worked off-site at customers’ premises for the First Defendant. No

pay slips provided were provided for the period immediately before the accident to permit the

court to determine a trend of whether the Claimant worked mostly offsite or on site before the

accident. However, the pay slips provided showed that after the accident, the Claimant

received paid sick leave at the offsite rate from October 2005 to March 2006. In cross-

examination, Mr. Phillip Archie the Company Secretary explained that the Claimant was only

entitled to 14 days sick leave and the payments he received up to June 2006 were made as

workmen’s compensation. He also explained the hierarchy of workers at the First Defendant

Company. He stated that a Rigger could be promoted to a Foreman, a Foreman could be

promoted to a Supervisor and a Supervisor could be promoted to become a Manager. He also

made it clear that with time, the Claimant could have been promoted to the position of

Supervisor or Manager.

169. In Seudath Parahoo v S.M Jaleel & Company Limited28

, Hamel-Smith J.A. at paragraph

8 stated as follows:

“It is appropriate at this juncture to consider the onus placed on the appellant to prove

his loss. In order to prove his loss in respect of pre-trial loss of earnings and loss of

pecuniary prospects the appellant had to show respectively (i) that the injury had

28

Cv A No. 110 of 2001

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rendered him incapable of performing any work, whether as an electrician or otherwise,

from the date of his injury to the date of trial and (ii) that the injury was of such a

nature that it rendered the appellant incapable of performing his duties as an

electrician or, for that matter, any other form of work whatsoever. If it rendered him

incapable of performing as an electrician but did not prevent him from doing other

work, it was necessary to show that in order to mitigate his loss. In discharging this

onus, medical evidence as to the nature of the injury and the residual effect that the

injury may have had on the claimant’s ability to work is imperative.”(emphasis mine)

170. The Medical Report of Dr. Maharaj dated 23rd

February 2011 outlined that the Claimant can

do simple manual work but should not work on heights, climb, drive a motor vehicle or work

near open machinery. Based on this medical report, it is evident that the Claimant will no

longer be able to perform the work of a Rigger as he did before the accident. However, from

the evidence led at trial, the Claimant has shown that he has been able to secure employment,

albeit on a temporary basis. Most certainly, the Claimant cannot contend that his actual

earning power had been completely eroded as a result of the injury because he has not proved

that he has been totally incapacitated. This assessment is therefore based on partial loss of

earnings and a determination of whether a Blamire lump sum award or a

multiplier/multiplicand approach is appropriate in the circumstances.

171. A Blamire award finds its origin in the case of Blamire v South Cumbria Health

Authority29

and was explained by the Honourable Mendonca J.A. in the Court of Appeal

decision of Johnson Ansola v Great Northern Insurance30

as follows:

“The Blamire award gets its name from the case of Blamire v South Cumbria Health

Authority [1993] 2 PIQR Q1. In that case the Court of Appeal of England held that the

Judge was entitled to reject the conventional multiplier/multiplicand approach in favour

of a global broad brush approach given the number of imponderables. To appreciate

the decision of the Court of Appeal, it is appropriate to have an understanding of the

facts of the case.

29

[1993] 2 PIQR 30

CA Civ 169/2008

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That case involved a claim by a plaintiff for damages for personal injuries. The plaintiff,

a nurse, injured her back while lifting a patient. The injury had left her back vulnerable

- a condition that she would endure into the foreseeable future - as a consequence of

which she could not continue in a nursing job that involved lifting patients and in all

probability would have to fall back on her second skill which was secretarial work. The

trial judge summarized his views on the issue of future loss of earnings as follows (see

Q4): “I believe from what I have seen of her that, when she does obtain secretarial

work, she will do it efficiently and give satisfaction to her employers. Her personality is

such that I think she would be an asset in any office, and I see her as attractive to

potential employers. But that it is going to be significantly harder for her to get such

work than were she a nurse, I have no doubt. That this is so at the present time is

established; I feel justified in finding that the same would probably be true for the whole

of her working life. In any event it is likely to be harder to find a working environment

which she finds congenial. It is reasonable to expect some recurrence of back trouble

during the rest of the plaintiff’s working life, and if she should lose a job through long

absence with back trouble it may be difficult to get another. I must take account of the

possibility that she might be unable to get any suitable secretarial work and may,

accordingly have to seek part time light nursing work of the kind which she was doing

in the residential home. That, of course, would enable her to earn something but would

leave a substantial shortfall in comparison with her earnings were she still able to be a

full-time nurse.

The trial judge did not apply the multiplier/multiplicand approach but awarded a lump-

sum. On appeal by the plaintiff the Court of Appeal said that there were two issues

facing the trial judge: a) What was the likely pattern of the plaintiff’s future earnings

had she not been injured; and b) What was the likely pattern for the plaintiff’s future

earnings given the fact that she was now injured?

The Court of Appeal said that there were uncertainties in respect of both questions.

Steyn L.J. in his judgment, with which the other Judges were in agreement, stated (at

Q5): “First, there was uncertainty as to what the plaintiff would have earned over the

course of her working life if she had not been injured. It is not necessary to mention all

the difficulties which confronted the plaintiff. One was the possibility that she might

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have more children. Another was the fact that she clearly would like to have done part

time work rather than full time work.... The second aspect was the uncertainty as to the

likely future pattern of her earnings, and here the uncertainties were very great.

Bearing in mind that the burden rested throughout on the plaintiff, it is in my judgment

clear that on the materials before him the judge was entitled to conclude that the

multiplicand/multiplier measure was not the correct one to adopt in this case.”

The Blamire case is very different to this one. There is not present in this case anything

of the uncertainties that existed in the Blamire case. The critical question before the

Judge in this case was what was the future earnings of the Plaintiff had he not been

injured. There is no real uncertainty as to the likely future pattern of the Plaintiff’s

earnings. Before the accident he worked as an upholsterer/joiner. This was his only skill

and there could be little doubt that had he not been injured he would have continued in

those trades in the future. In every case there will be the possibility that things may not

remain the same in the future. As Counsel for the owner submitted, there is a possibility

that the Plaintiff’s income may fall and that he may have no work at times or may go

bust or be unemployed. This is so in all cases and the way that the Courts deal with

such possibilities is to make an adjustment in either the multiplier or the multiplicand. I

therefore do not accept Counsel’s submission that this was an appropriate case for a

Blamire award. It was susceptible to the conventional approach which the Judge used.”

172. The circumstances of this case are not such that there are great uncertainties in determining

the Claimant’s future earnings. Before the accident, the Claimant worked as a Rigger for two

years for the First Defendant. As indicated by the company secretary, with time, the Claimant

could have been promoted, attracting a higher salary. Additionally, the Claimant's alternative

employment after the accident is an indication of how much he could have earned. Therefore,

I feel justified in using the conventional multiplicand/multiplier approach.

Multiplicand

173. The First Defendant by its written submission filed on 30th

July 2013, suggested that this

court use a multiplicand of $11,700.00 (average weekly earnings of $243.75). After the cross

examination of Mr. Phillip Archie who averred that at the date of the trial Riggers earn

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$35.00 to $45.00 per hour, the Claimant suggested that the multiplicand be calculated using

weekly earnings of $1,500.75 per week.

174. Generally, the multiplicand is determined by using the Claimant’s net earnings for the year.

However in this case it has to be discounted to take into account the fact that the Medical

Report of the agreed medical expert clearly stated that the Claimant should be able to do

simple manual work. The Claimant returned to work in June 2006 but he was assigned the

task of driving the forklift and was paid at the basic rate of $9.00 per hour. He claims to have

only worked for about 33 hours because he suffered headaches and seizures which prevented

him from working. However, from the pay slips presented, it is clear that he worked

intermittently between June 2006 to January 2007 at the First Defendant’s premises. It

appears however that the Claimant’s ability to work must have improved as he secured

employment at Chemplast from 2011 to August 2012, also evidencing his ability to secure

employment. On the morning of the trial, by supplemental witness statement, the Claimant

gave evidence that he has been unemployed since August 2012. However, the only effort he

appears to have made to secure employment after August 2012 was that he submitted an

application for employment to a nail factory.

175. I am of the opinion that from the evidence provided by the Claimant, his efforts to secure

alternative employment were minimal. I agree with the Claimant’s submission that the

starting point for the multiplicand should be $40.00 per hour with a net weekly pay of

$1,500.75. However, the Claimant did not provide evidence to show the efforts he made to

find alternative employment. I am also of the view that the Claimant has exaggerated the

extent of his disability and he is capable of some level of work as suggested by the Medical

Report. Consequently, the multiplicand should be discounted to reflect same. Therefore, in

the calculation of the multiplicand, I am of the view that the Claimant could have obtained at

least minimum wage employment had he made a greater effort to secure employment. His

earnings as a Rigger had he continued to work with the First Defendant, would therefore be

discounted to reflect the fact that the Claimant is capable of performing some work because

his actual earning power has not been completely eroded. His net annual income of

$78,039.00 (net weekly income of $1,500.75 ˟ 52 weeks) would therefore be discounted to

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reflect the fact that the Claimant could have earned at least a minimum wage job at a rate of

$12.5031

per hour doing simple manual work. This will amount to an annual net income of

$24,762.40 ($12.50 per hour for 8 hours each day for five days each week for 52 weeks with

deductions of $4.80 per week for health surcharge and $19.00 per week for National

Insurance contributions). I will therefore use a multiplicand $53.276.60 per year.

Multiplier

176. In assessing the loss of earnings, the multiplicand as outlined above is multiplied by the

multiplier which is based on the number of years during which the loss of earning power will

last, discounted for the fact that a lump sum is being awarded instead of periodic payments

over the years as would ordinarily occur. In determining an appropriate multiplier, I have

considered the multipliers used in similar cases and compared the circumstances therein to

that of the Claimant.

177. In Wayne Wills v Unilever Caribbean Limited, the Claimant was described as a “career

manual labourer”. A multiplier of 12 was used for Mr. Wills who was 33 years old at the time

of injury and forty years old at the time of assessment.

178. In Clem Lewis v Trinidad and Tobago Electricity Commission32

, delivered on 3rd

October 2003, Stollmeyer J (as he then was), used a multiplier of 14 for a Claimant who was

37 at the time of assessment, with a retirement age of 60. He stated as follows:

”Taking into account, among other factors, the Plaintiff's present age of 37, a

mandatory retirement age of 60 at the latest, but possibly earlier, the question of

overtime, the probability of promotion, the potential loss of pension benefits, the need to

make some provision for the Plaintiff being unable to improve himself and his earning

capacity, some form of counseling and/or rehabilitation programme which is not

included in the cost of future medication and medical care, and his failure to mitigate I

propose to use a multiplier of 14. I do so although I recognise this to be perhaps higher

31

By the Minimum Wages Order 2010, the minimum wage increased to $12.50 effective January 01st 2011

32 HCA. Cv. S587 of 1994

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than the norm given the Plaintiff’s present age, and I do on a different basis for arriving

at the multiplier used in my award for future care. This results in an amount of

$736,838.62, which I round off at $737,000.00 and award.”

179. In Peter Seepersad v Theophilus Persad and Capital Insurance Limited, Privy Council

Appeal33

, delivered on 1st April 2004, the Privy Council adopted a multiplier of 16 for the

Appellant who was 37 years old at the date of the trial.

180. In Ramnarine Sam v The High Commissioner of India, Bryan Boodram, New India

Assurance Ltd34

, delivered on 23rd

July 2008, by Stollmeyer J (as he then was), a multiplier

of 16 was used for a Claimant who was 29 years old at the time of the accident and 31 years

old at the date of the assessment.

181. The First Defendant referred this court to Andre Marchong v Trinidad and Tobago

Electricity Commissions and Galt and Littlepage Limtied35

delivered by Justice Jones on

May 21st 2010. In that case a multiplier of 18 was used for a Claimant who was 27 years old

at the time of the accident and 31 at the date of assessment.

182. The Claimant was born on 10th

February 1985 and was 20 years old at the time of the

accident in 2005. He is presently 29 years old and had he continued working as a Rigger, he

would have been able to work to at least age 65, as admitted by the Company Secretary, Mr.

Archie. Taking these ages into account, together with other factors including the probability

of promotion, I consider a multiplier of 20 to be reasonable, making appropriate allowance

for the contingencies of life. When applied to the multiplicand of $53.276.60, would result in

an award of $1,065,532.00 for future loss of earnings

Loss of earning capacity

33

No 86 of 2002 34

CV 2007 – 00206 35

CV 2008-04045

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183. At paragraph 8 of his Re-Re-Amended Statement of Case, it was pleaded that by reason of

his injuries, the Claimant is entitled to the highest award for loss of earning capacity and

reference was made to the case of Bhawan Ramcharitar v the Attorney General of

Trinidad and Tobago36

, in which an award of $200,000.00 was made by Bereaux J. for loss

of earning capacity. Efforts to find a written judgement in this case proved futile.

184. The First Defendant addressed the award of loss of future earnings and loss of earning

capacity under the same heading and submitted that at most the Claimant should be awarded

$210,600.00. (reduced earning capacity would of 40% ($243.75 weekly/$11,700.00 annually

using a multiplier of 18).They also suggest an award of $50,000.00.

185. The Claimant referred the court to the cases of Smith v Manchester, Moeliker v Reyrolle37

and Peter Seepersad v Theophilus Persad and Capital Insurance Limited38

. They

submitted that the Claimant’s medical condition clearly has an effect on his ability to

maintain jobs and referred to the evidence of him leaving his jobs with the First Defendant

and with Chemplast.

186. The First Defendant referred to the case of Dayal Moonsammy v Rolly Ramdhanie and

Capital Insurance Limited39

in which Kangaloo JA set out the evidential burden on an

injured party when claiming loss of earning capacity. Kangaloo JA referred to the locus

classicus decision on this area of Moeliker v Reyrolle & Co. Ltd where Browne LJ stated:

“But what has somehow to be quantified in assessing damages under this head is the

present value of the risk that a plaintiff will, at some future time, suffer financial

damage because of his disadvantage in the labour market. As Orr LJ said in Clarke v

Rotax Aircraft Equipment Ltd ([1975] 3 All ER 794 at 798, [1975] 1 WLR 1570 at

1576):

'It is true, as stated by Scarman LJ in Smith v Manchester Corpn, that the loss of

earning capacity has arisen at the time of and in consequence of the accident, but

36

H.C.A. 4078 of 1996 37

[1977] 1 All ER 9 38

Privy Council Appeal No 86 of 2002 39

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its financial consequences may or may not arise at all or may arise at any future

time.'

Where a plaintiff is in work at the date of the trial, the first question on this head

of damage is: what is the risk that he will, at some time before the end of his

working life, lose that job and be thrown on the labour market? I think the

question is whether this is a 'substantial' risk or is it a 'speculative' or 'fanciful'

risk (see Davies v Taylor, per Lord Reid ([1972] 3 All ER 836 at 838, [1974]

AC 207 at 212) and Lord Simon of Glaisdale ([1972] 3 All ER 836 at 844,

[1974] AC 207 at 220)). Scarman LJ in Smith v Manchester Corp. referred to a

'real' risk, which I think is the same test. In deciding this question all sorts of

factors will have to be taken into account, varying almost infinitely with the

facts of particular cases. For example, the nature and prospects of the

employers' business; the plaintiff's age and qualifications; his length of service;

his remaining length of working life; the nature of his disabilities; and any

undertaking or statement of intention by his employers as to his future

employment. If the court comes to the conclusion that there is no 'substantial' or

'real' risk of the plaintiff's losing his present job in the rest of his working life,

no damages will be recoverable under this head”. (emphasis mine)

187. An award for loss of earning capacity is an award for a contingent future loss, in the event of

the Claimant losing his current job, where, as a result of the accident, he would then be at a

disadvantage on the labour market which he would not have been, but for the accident. This

award is usually made in circumstance where a Claimant is employed at the time of the

accident. However, an award is not dependent on whether the Claimant is employed. In

Great Northern Insurance Company Limited v Johnson Ansola40

, the Court of Appeal

stated:

“While damages for loss of earning capacity would generally arise where the plaintiff

is employed at time of the assessment, an award under that head is not dependent on

whether the plaintiff is employed. Such an award can apply in cases where there is

evidence of a disadvantage in the labour market, whether or not the plaintiff is

40

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employed. Smith v Manchester Corp. (1974) 17 KIR 1 and Moeliker v Reyrolle

[1957] 1ALL ER 9 are representative of situations where the plaintiff is employed at

the date of trial but may experience a handicap in the labour market as a consequence

of his injury if he were to lose his employment. These cases may be representative of

the most typical situation and the label of a Smith v Manchester award is best left to

those situations as arose in that case and in the Moeliker case (see Morgan v UPS

[2008] EWCA Civ. 377). It was however made clear in Cooke v Consolidated

Fisheries Ltd. [1977] I.C.R. 635 that it does not make any difference to the availability

of the award that the plaintiff was not actually unemployed at the time of the trial”.

188. The authors of McGregor on Damages 18th

Edition explained at paragraph 35-065 that an

award made in circumstances where a Claimant is found to experience a handicap on the

labour market is generally achieved without resort to multiplicand and multiplier in favour of

a lump sum approach. Further, this award, often referred to as the Smith v Manchester

Award, is made in circumstances, one of which is where the claimant may be working for a

different employer or working for himself and his earnings is different from his previous job,

but the work may be intermittent. In assessing the amount to be awarded for loss of earning

capacity, the courts have often been guided by the number of years of the Claimant’s pre-

injury earnings or alternatively, they have applied appropriate discounts to the multiplier in

assessing loss of future earnings.

189. In his report dated 23rd

February 2011, Dr. Maharaj estimated the Claimant's permanent

partial disability at 35%. He specifically stated that the Claimant should not work on heights,

climb, drive a motor vehicle or work near open machinery. Clearly, the experience the

Claimant gained working with the First Defendant as a Rigger since January 2003 would

serve little purpose in finding a job in that field, since he can no longer work as a Scaffolding

Rigger. Although the experience gained is not for a significantly long time, the fact remains

that it is the only experience the Claimant had in the working world.

190. Mr. Archie initially contended that the Claimant could have continued to work with the First

Defendant up to age 65. However in cross-examination, he admitted that having seen the

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report of Dr. Maharaj, he would not be prepared to offer employment to the Claimant or

someone with his complaints as a groundsman. This approach may be similar to that of other

potential employers. The Claimant’s injuries may be a deterrent to hiring him.

191. Although I accept that the Claimant may be able to find another job, his limited qualifications

and experience, as well as the effects of the injuries suffered in the accident, would limit the

types of jobs that he will be able to perform. In my opinion, the Claimant now faces a

considerable disadvantage in the competitive labour market in securing an alternative job. I

accept, therefore, that there is an existing and permanent reduction in his ability to earn a

living. However, this reduction in his ability to earn must be balanced against the fact that the

Claimant is quite young and has the potential to enhance his qualifications and be re-trained.

In addition, he has almost thirty working years ahead of him.

192. Scarman LJ in Smith v Manchester Corporation stated that it is inappropriate when

assessing loss of earning capacity to attempt to calculate any annual sum or to apply any

annual sum to so many years’ purchase. Instead, what the court must do is look at the

weakness so to speak “in the round”, take a note of the various contingencies, and do its best

to reach an assessment which will do justice to the Claimant.

193. In its submissions on loss of earning capacity, the Claimant referred to the cases of Peter

Seepersad, Angel Baldeo v Prestige Car Rentals Ltd., Dayal Moonsammy v Rolly

Ramdhanie and Capital Insurance41

and Bhawan Ramcharitar v the Attorney General

of Trinidad and Tobago. In Peter Seepersad, no separate award was made under the head

of loss of earning capacity. In Angel Baldeo the court ruled that there is no evidence that the

plaintiff would not be able to work or that her earning capacity would be affected. In Dayal

Moonsammy, the Court of Appeal ruled that the High Court Judge should not have awarded

loss of earning capacity as there was no evidence to prove that in the future, the Appellant

would not be able to carry out his functions at an acceptable level.

41

C.A.CIV.62/2003

of 60

194. I have also been referred to the case of Cindy Kanhai v Miguel Mohammed and others42

in which an award of $150,000.00 was made for future pecuniary loss. Master Paray-Durity

was of the opinion that the Claimant who was 20 years old at the date of assessment had not

suffered a complete loss of earning capacity but would have suffered some disadvantage on

the labour market. In Andre Marchong v T&TEC, the Claimant was declared medically

unfit because of his inability to sit for long periods of time without pain which disqualified

him for continued employment as a clerk. The judge placed little reliance on the Claimant’s

contention that he was unable to find a suitable job and she formed the opinion that the

Claimant exaggerated his pain and resulting disability. A multiplier of 21 was used for the

Claimant who was 31 at the date of the assessment and an award of $377,241.26 was made

for loss of earning capacity. No separate award for loss of future earnings was made.

195. In the circumstances, considering the award that was made under the head of loss of future

earning, I am of the opinion that a reasonable award for loss of earning capacity to be

$75,000.00.

Deduction of Workmen's Compensation

196. It is to be noted that the Claimant received $13,403.28 in Workmen’s Compensation.

However Mr. Phillip Archie admitted in cross-examination that Mr. Gonzales did not receive

a lump sum payment but instead was paid this amount as paid sick leave after the accident

until June 2006. By law the Claimant is entitled to this amount which, if paid, ought to be

deducted from the award made. However because the Claimant’s workmen’s compensation

was considered paid sick leave from the time of the accident until June 2006, the Claimant

did not claim loss of earning for this period. Therefore, in the circumstance, I will not deduct

the amount received by the Claimant as workmen’s compensation from the award.

Interest

42

CV 2006 – 01087

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197. Section 25 of the Supreme Court of Judicature Act, Chap 4:01 gives the Court a discretion to

include in the sum for which judgment is given interest at such rate as it thinks fit on the

whole or any part of the debt or damages for the whole or any part of the period between the

date when the cause of action arose and the date of judgment. The common law position as

set out in Jefford v Gee43

for the award of interest is to compensate the litigant in personal

injuries cases, “for being kept out of money which ought to have been paid to him.” Counsel

for the Claimant submitted that the Court should award interest on the general damages at the

rate of 12% per annum from the date of the filing of the Claim Form and interest on the

special damages at the rate of 6% per annum from the date of the accident. In so doing,

Counsel relied on the judgment of Mendonca J. (as he then was) in Angel Baldeo v. Prestige

Car Rentals Ltd44

where an award of interest was made at a rate of 12% per annum on

general damages.

198. However, in the exercise of my discretion, I am of the opinion that the appropriate rate of

interest on general damages should not be based solely on the rate specified in the Remedies

of Creditors Act. Adopting a similar approach to that taken by this court in Sean Wallace v

The Attorney General of Trinidad and Tobago45

, I consider that the court is entitled to

take into account the prime lending rate that is applicable from time to time. This Court takes

judicial notice that the prime lending rate issued by the Central Bank of Trinidad and Tobago

as at July 22nd

2014 is 7.5%. In those circumstances I consider that an appropriate rate of

interest on the general damages should be 9%. I will also award 6 % on special damages.

The Order

The First Defendant is hereby ordered to pay to the Claimant the following amounts:

1) Special Damages in the sum of $111,707.00 together with interest thereon at the rate of 6%

per annum from 8th

October 2005 to date of judgement and 12% thereafter.

2) Pain and suffering and loss of amenities as a result of the injury in the amount of $450,000.00

together with interest thereon at the rate 9% per annum from 30th

September 2009.

43

(1970) AC 130 44

H.C.A. 442 of 2000 45

Claim No.: CV2008-04009

of 60

3) Loss of future earnings in the sum of $1,065,532.00. This sum shall bear no interest.

4) Future medical expenses in the sum of $54,600.00. This sum shall bear no interest.

5) Loss of earning capacity in the sum of $75,000.00. This sum shall bear no interest.

Costs

199. In my opinion, the Claimant is entitled to an award of costs determined in accordance with

Rule 67.5 of Civil Proceedings Rules 1998 and not Rule 67.12. This Rule provides that the

costs payable should be based on the value of the claim which in the case of a claimant is the

amount agreed or ordered to be paid. Therefore, I will order the First Defendant to pay to the

Claimant the costs to be determined in accordance with Appendix B and based on the

amounts awarded, inclusive of interest: Leriche v.Francis Maurice46

.

Dated this 23rd

day of July 2014.

André des Vignes

Judge

46

Privy Council Appeal No 25 of 2004

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