Joseph et Al v The Minister of Health, North West Regional Health Authority and the Attorney General of Trinidad and Tobago

• Jurisdiction: Trinidad & Tobago
• Judge: Moosai, J.
• Judgment Date: 11 May 2007
• Neutral Citation: TT 2007 HC 100
• Docket Number: H.C.A. No. 2405 of 2002; CV 03205 of 2006
• Court: High Court (Trinidad and Tobago)
• Date: 11 May 2007

High Court

Moosai, J.

H.C.A. No. 2405 of 2002; CV 03205 of 2006

Joseph et al

and

The Minister of Health, North West Regional Health Authority and the Attorney General of Trinidad and Tobago

Appearances:

Ms. Samantha Lawson for the claimants.

Ms. Christlyn Moore instructed by Mrs. Margaret Hinds for the second defendant.

Mr. Neal Byam for the third defendant.

Damages - Negligence — Claimant misdiagnosed by doctor — Fallopian tubes wrongly removed rendering Claimant permanently unfertile — Quantum.

Moosai, J.

1. INTRODUCTION

1 On September 5, 2003, the claimants, Paula Mapp-Joseph and Hugh Joseph, claimed against the defendants, inter alia, damages for personal injuries, loss and damage caused by the negligence of the defendants, their agents, servants and/or employees, in the provision of professional, medical, diagnostic, surgical and nursing services, to, and the care and/or treatment of the first claimant.

2 On November 2, 2006 the claimants discontinued the action against the first defendant.

3 The second defendant wish to make an ex gratia payment to the first claimant, in consequence whereof the second claimant has abandoned any claim for relief. I shall accordingly hereinafter refer to the first claimant as Mrs. Mapp-Joseph. The parties are unable to agree on the quantum of the ex gratia payment and are prepared to abide by an award made by me.

2. FACTS

4 The following facts are not disputed:

1

Mrs. Mapp-Joseph is now thirty-five (35) years old, a housewife and the mother of two (2) children from a previous relationship. She is currently married and has no children by her husband. 2. Mrs. Mapp-Joseph had a history of chronic pelvic pain and in June 1998, at age 27, was referred to the Mt. Hope Women's Hospital by her physician, Dr. Afraz Ali. 3. Mrs. Mapp-Joseph attended clinic on diverse days between June 1998 and August 1998. 4. On August 18,1998 Dr. Lutchmansingh performed a diagnostic laporoscopy and advised Mrs. Mapp-Joseph that the results revealed infection to her left fallopian tube and recommended removal of same. 5. Mrs. Mapp-Joseph, who already had two children from a previous relationship, expressed concern that she wanted to be able to have children with her current husband, with whom she had no children and who had no children of his own. 6. Acknowledging her concern, Dr. Lutchmansingh advised that Mrs. Mapp-Joseph have children immediately because the infection would spread to her womb which would have to be removed as a consequence. 7. Mrs. Mapp-Joseph continued to experience chronic pelvic pain. 8. Acting on the doctor's advice, in January 1999 an ultrasound performed at the said Hospital confirmed that Mrs. Mapp-Joseph was pregnant. 9. Approximately two months later, on March 14, 1999, Mrs. Mapp-Joseph returned to the said hospital consequent to her history of pelvic pain and was admitted. She was seen by Dr. V. Ragoononan who diagnosed a threatened abortion and ordered strict bed rest. 10. On March 15, 1999 Mrs. Mapp-Joseph was seen by Dr. Lutchmansingh. He queried Dr. Ragoonanan's diagnosis and noted that she had aborted the day before. He then ordered an EPRC operation procedure to be performed that day. 11. The said EPRC was performed the following day. Mrs. Mapp-Joseph was advised by Dr. Lutchmansingh that the aborting of the pregnancy was as a result of the infected fallopian tube. He then advised her to have the operation to remove the fallopian tube on June 23, 1999. Mrs. Mapp-Joseph relied on Dr. Lutchmansingh's diagnosis. 12. On or about June 22, 1999, Mrs. Mapp-Joseph was admitted to the said hospital for the surgery carded for June 23, 1999. Pregnancy tests confirmed that she was pregnant once again. 13. On July 26, 1999 Mrs. Mapp-Joseph returned to the said hospital. An ultrasound revealed the pregnancy was aborted. She continued to experience chronic pelvic pain. Dr. Lutchmansingh then recommended that she should remove both the left and right fallopian tubes because the infection would have spread to the right fallopian tube. Prior to this recommendation, Dr. Lutchmansingh carried out no further tests to determine whether the right fallopian tube was in fact infected. 14. Dr. Lutchmansingh also recommended that Mrs. Mapp-Joseph's entire womb be removed because the womb had no use without tubes. Mrs. Mapp-Joseph refused to consent to having her normal womb removed solely on that basis. 15. Acting on Dr. Lutchmansingh's recommendation, Mrs. Mapp-Joseph consented in writing to having the operation to remove her fallopian tubes. 16. On September 7, 1999, Mrs. Mapp-Joseph was admitted to hospital for the surgery which was scheduled to take place on September 8, 1999. 17. On September 8, 1999, Dr. W. Hegg assisted by T. Kowlessar, performed the said operation, a bilateral salpingectomy. Both fallopian tubes were ligated and excised and sent to the laboratory for testing. 18. Mrs. Mapp-Joseph continued to experience chronic pelvic pain. 19. On November 16, 1999 Mrs. Mapp-Joseph returned to the said hospital and was attended to by Dr. Ronald Knowles. He advised her that the histology test of the excised fallopian tubes revealed that the tubes were perfectly normal. 20. Mrs. Mapp-Joseph became traumatized and depressed when she found out that the fallopian tubes were normal. 21. Dr. Knowles there and then referred Mrs. Mapp-Joseph to the surgical outpatient clinic at the Port of Spain General Hospital (“POSGH”) for further assessment and management of her chronic pelvic pain. 22. On the said November 16, 1999 Mrs. Mapp-Joseph visited the said surgical outpatient clinic and was given an appointment for February 7, 2000. 23. On February 7, 2000 Mrs. Mapp-Joseph attended the gynaecological clinic at POSGH, and was seen and assessed by Specialist Gynaecologist, Dr. David Josa, who ordered a series of tests, including an ultrasound and abdominal X-ray, and prescribed antibiotics and other medication. She was advised to return on February 14, 2000. 24. On February 14, 2000 Mrs. Mapp-Joseph attended the clinic at POSGH and was seen by a doctor who prescribed further medication. The abdominal X-ray ordered by Dr. Josa was also done on that date. 25. Mrs. Mapp-Jopseph continued to receive treatment at POSGH for her original complaint. Her pains gradually subsided as a result of the medical treatment she received at POSGH.

3. Law

5 It is trite law that the purpose of an award of damages in tort is, so far as possible, to put a claimant in the position in which he would have been had the relevant tort not taken place (restitutio in integrum).

6 The locus classicus on the assessment of general damages in Caribbean jurisdictions is Cornillac v. St Louis (1965) 7 W.I.R. 491 at 492 (CA), where Wooding, C.J., outlined the general principles. These were stated to be:

• (1) The nature and extent of the injuries sustained.

• (2) The nature and gravity of the resulting physical disability.

• (3) Pain and suffering.

• (4) The loss of amenities suffered.

• (5) The extent to which, consequentially, the claimant's pecuniary prospects have been materially affected.

7 It is common ground between the parties that damages are to be assessed under paragraphs (1) to (4) above, there being no evidence of the extent to which, consequentially, the claimant's pecuniary prospects have been materially affected. The claimant was, and remains, a housewife.

8 It is therefore on the non-pecuniary losses, namely pain and suffering and loss of amenities, that I must focus. Mc Gregor on Damages, 16th edn. (1997) at paras. 1557- 1558 distinguishes between the respective functions of pecuniary losses and non-pecuniary losses, the former being capable of the application of the principle of full compensation, the latter of fair compensation:

“1558. The function of the non-pecuniary heads of damage is very different. The concept of full compensation, central to pecuniary loss, cannot operate here. It is not possible to give full compensation, as no amount in money can fully compensate for a serious physical injury; indeed with all physical injuries one is not, when arriving at a compensatory figure, comparing like with like. The best that the law can do is put a monetary value upon the deprivation which the injured person has suffered; …. Another function of the non-pecuniary award is sometimes said to be as a solace to the injured person, the money enabling him to obtain a degree of satisfaction from the acquisition of goods and services which he enjoys.”

9 Lord Woolf, M.R., summed up the position in Heil v. Ramkin [2000] PIQR Q187 at Q199 thus:

“The Court's approach involves trying to find the global sum which most accurately in monetary terms reflects or can be regarded as reflecting a fair, reasonable and just figure for the injuries which have been inflicted and the consequences they will have…”

10 Both attorneys noted that having regard to the nature of the injury, there was a paucity of awards in this jurisdiction and in the region providing guidance as to quantum. In considering cases from other jurisdictions I must bear in mind what the Privy Council has said in Singh (infant) v. Toong Fong Omnibus Co. Ltd. [1964] 3 All E.R. 925 at 927:

“… to the extent to which regard should be had to the range of awards in other cases which are comparable, such cases should as a rule be those which have been determined in the same jurisdiction or in a neighbouring locality where similar social, economic and industrial conditions exist.”

11 Moreover both attorneys have relied on the judgment of Justice Basdeo Persad-Maharaj delivered on October 31, 1991 in Grace Prima v. A.G. H.C.A No.6501 of 1985. In See persad v. Persad [2004] UKPC 19, at para 15, the Privy Council cautioned against total reliance on awards of damages decided a number of years beforehand. Lord Carswell stated:

“The Board entertain some reservations about the...