Aziz Ahmad Ltd v Raghubar

• Jurisdiction: Trinidad & Tobago
• Judge: Wooding, C.J.,Phillips, J.A.,Fraser, J.A.
• Judgment Date: 20 June 1967
• Neutral Citation: TT 1967 CA 67
• Docket Number: High Civil Court No. 60 of 1965
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 20 June 1967

Court of Appeal

Wooding, C.J.; Phillips, J.A.; Fraser, J.A.

High Civil Court No. 60 of 1965

Aziz Ahmad Limited

and

Raghubar

Appearances:

T. Hosein, Q.C., A.C. Thorne and Z. Hosein for the appellant.

W.J. Agimudie for the respondent.

Negligence - Damages — General Damages — Criteria for assessment — Whether award inordinately high.

Facts: Respondent suffered injury in a vehicular collision for which the appellant was alone to blame. Issue between the parties is on the quantum of damages only. Appellant challenged the whole of the award for general damages.

Held: In a jurisdiction such as ours in which assessments of general damages are made by judges without the aid of juries, it has become the accepted principle that the courts should strive for as high a measure of uniformity of awards as is reasonably practicable. However, there are certain caveats to this. Damages in Trinidad are not given on as high a scale as in England. Such uniformity as may be practicable should conform with current trends here and not elsewhere. Past cases provide a general standard or judicial consensus but are nevertheless referable to their own particular facts. In the present case, the respondent's condition is given. Taking all relevant matters into consideration and giving them the best judgment, the court is unable to say that the judges award was inordinately high. It will not therefore be disturbed. Appeal dismissed with costs.

1 On March 2, 1962, the respondent suffered injury in a vehicular collision for which the appellant was alone to blame. Liability was not contested, so the issue between the parties was on the quantum of damages only. The Injury was serious and its consequences grave. It was a fractured dislocation of the 11th and 12th dorsal vertebrae and it has resulted in paraplegia, that is, complete paralysis of the lower limbs from the waist downwards, inability to walk except with the aid of crutches and double calipers and, even so, only with a fourpoint gait, inability to control the action of his bladder and bowels, and total sexual imponence. It appears that on April 24, 1961 he has suffered a dislocation of the cervical spine for which he was at first treated and later recommended to be operated upon but, although he never had the operation, it was common ground between the surgeons who testified for the respective parties (and accordingly the fudge found) that none of the consequences of his later injury to which I have referred was in any way attributable to the dislocation suffered in 1961.

2 The learned judge who made the assessment awarded a sum of $48,263.80 of which $263.80 was special damages, being for loss and expense incurred, $16,000.00 for loss of future earnings and $32,000.00 for the other matters which go to general damages. No question was raised before us on the assessment of $261.80 for special damages. But this award took no account of the actual loss of earnings between the date of the injury and the hearing. This was because the respondent failed to allege in his pleading either the nature of his occupation or the earnings he lost. It appears from the record and from the judgment that when the relative evidence was sought to be given counsel for the appellant objected and, without ruling on the objection, the judge allowed it to be tendered de bebe esse. The matter was not again raised until the delivery of the judgment which had been reserved. Then, for the first time, the judge ruled on the objection, allowing it insofar as it affected the claim for special but overruling it as regards general damages, and he went on to make his award accordingly. Further, in disallowing any sum for actual loss of earnings he commented that the respondent's counsel had not applied to amend his claim. This was, I think, to do the respondent less than justice. Had he ruled on the objection before rather than in the course of delivering his judgment, the necessity to amend would have been made indubitably clear and, on application, an amendment should have been allowed as a matter of course. It is a relief however that, before us, counsel for the appellant agreed to the respondent amending his claim so as to include loss of earnings to the date of the award, and to the sum off $2,750.00 being awarded therefor. Accordingly, the award for special damages will now be enhanced to $3,013.80.

3 Counsel for the appellant challenged the whole of the award for general damages. As to the sum of $16,000.00 for loss of future earnings, he referred to the judge's estimate of 20 as being the number of working years remaining to the respondent and complained, first, that the judge arrived at this estimate by relating it to the date of the injury instead of the award and, secondly, that he failed to take into proper or sufficient account either the injury to his cervical spine which the appellant suffered in 1961 with its consequent disability or the admitted fact that he had been shot at twice not so long previously and therefore might have had a shorter working life than he would otherwise. He complained also that no or no adequate allowance was made for the appellant's future earnings potential and that it was wrong to regard him, as he said the judge did, as 100% disabled. I am far from persuaded that these complaints are in any sense valid. It is true that the judge estimated at 20 his remaining working years in March 1962, which was the date of the injury, but it is no less true that he adverted expressly to the requirement to separate actual loss of earnings up to the date of the award from prospective loss of earnings after that date, and he at no point in his judgment stated with what multiplier he began as representing the years of loss of future earning capacity. I find also that he specifically accepted the evidence relating to the injury he respondent's cervical spine, including the assessment of his consequent disability at 20%. Indeed, the judgment of Boyd McBride, J.A. on plainly analogous facts in Stene v. Evans (1958) 14 D.L.R. 73 in which this passage appeared:

“Nor do I think the learned trial judge shut his mind to the events subsequent to the first accident throwing light upon the realities of the case, indeedthe whole trend of his judgment is to the opposite effect.

As to general damages awarded, percentages of disability are only one element to be considered in the overall picture. On the evidence, I do not find that the learned trial fudge's degree of disability of at least 20% is an unfair estimate.

In these circumstances, in my view, it was quite correct for the trial judge to take the position in his judgment that whoever injured Stene in the second accident ‘did not injure a 100% man’, but injured an 80% man, and that was a matter for the tribunal trying the second accident”.

4 Further, the judge not only took into account that the respondent, although totally and permanently disabled physically, was only an 80% man at the time of his second injury, but also he paid due regard to what he characterised as the “possibility of his being trained for a sedentary occupation” which, in his view however, “would almost certainly be of a manual nature”. It is moreover to be observed that, although it is not directly controverted, the judge did not accept the evidence of the respondent that he used to earn $4/5,000.00 a year from cultivating five acres of rice and, as well, engaged in other gainful spare-time occupations. On the contrary, he remarked that - “Whatever the position may have been before the first accident, I think it is improbable that the plaintiff there after was capable of himself performing these other undertakings”.

5 So he took into account only such earnings as the respondent derived from the lorry driving which he was actively doing when he received his second injury. AS to the other complaints, it will I think suffice to quote the terms in which the judge directed himself as follows:

“The measure of damages is the amount which the plaintiff would have earned but for the injury. The plaintiff's actual earnings, or if he is not employed then, his earning capacity, at the time of the accident are ascertained. The amount, if any, which he earns or is capable of earning at the time of the assessment is deducted therefrom. This amount is multiplied by a figure which represents the number of years for which the loss of earning capacity will probably last, which in the case of a permanent disability will be the rest of his working life. Regard must be paid to the fact that it is a once for all and final assessment. This sum is discounted to allow for contingencies. Where the disability is not total, this includes the possibility of later injuries by a further accident, or the earlier termination of his employment, and premature death resulting from natural or unnatural causes. The amount is also scaled down because a lump sum is being given in respect of amounts which would be accruing due at future dates (for it is the present value of the future earnings that is to be assessed), and this amount can be increased by immediate investment. The figure is further reduced to allow for the income tax which would have been payable if the payments had been spread over the years in which they would otherwise have accrued … If there is a prospect of an increase in his earnings, due for example to likely...