Kawai v Ghoura

• Jurisdiction: Trinidad & Tobago
• Judge: Douglin, C. M.
• Judgment Date: 12 July 1985
• Neutral Citation: TT 1985 HC 117
• Docket Number: No. 1213 of 1977
• Court: High Court (Trinidad and Tobago)
• Date: 12 July 1985

High Court

Douglin, J.

No. 1213 of 1977

Kawai

and

Ghoura

Appearances:

Mr. Sankersingh for the plaintiff.

Mr. C. Best for the defendant.

Tort - Damages — Personal injuries (Perforation of left eardrum, multiple abrasions and swelling of forehead, multiple abrasions to elbows and knees).

Douglin, C. M.

1 This is an assessment of damages for personal injuries and damage caused to the plaintiff's motor vehicle PR 5851, as a result of a collision involving his said motor vehicle and the defendant's motor vehicle PN 3752, negligently driven by the defendant, his servant and/or agent on the 19th day of June, 1976, along the St. Helena Main Road, St. Helena.

2 At the hearing, the plaintiff testified that as a result of an accident on the 19th June, 1976 between his motor vehicle PR 5851 and another vehicle PN 3752 driven by the defendant, his vehicle was so extensively damaged that it was written off. His insurers paid him off the sum of $2,500.00 after deducting the sum of $750.00.

3 From, the accident, he sustained cuts and lashes on both knees, both elbows, small cuts on his face and a severe blow on his left ear. He went about ten times to Dr. Rattan about injuries, and paid him $210.00 as fees. He has lasting pains as a result of the accident. When he stays in the sun too long, he gets severe pain but experiences no pain when not in the sun. As a labourer with D.E.W.D. he is required to be in sun sometimes. His foreman gives him a five minutes rest after he goes in sun. He receives $20.00 per day, but lost about 23 days as a result of the accident, and was not paid for that period. He was charged by the police for driving without due care and attention and he retains Mr. Rudolph Williams, Lawyer, in Couva, to whom he paid $500.00 as fees.

4 Because he could not use his vehicle he hired a taxi to go to the doctor at $15.00 per trip about five times.

5 Under cross-examination, he stated that he paid about 10 times to visit the doctor, the first five times he hired a taxi, he paid $15.00 per return trip. Sometimes he paid taxi, and sometimes bus fare. He spent no time in hospital, but remained one month at home, not being able to work because he had pains.

6 Dr. Dipchan Winston Rattan, a member of the Medical Board, testified that he attended to the plaintiff on the 20th June, 1976, found him suffering from headaches, multiple abrasions and swelling to the forehead, bleeding from one of the ears, perforation of the left ear drum, pain and swelling with abrasions on the right and left elbows and on the right and left knees. In view of the headaches, the nature of the accident, and the multiple abrasions swelling to the forehead, it would appear to him that the plaintiff had received a blow to the head, which he would, classify as moderate. Owing to the bleeding from the left ear and the perforation therein, there is reasonable cause to have headaches time to time due to this injury. He saw no association with pain in the ear and being in the sun, but pain in the head can be associated in this case by being in the sun. His fees in the sum of $210.00 were paid. Looking at the totality of the injuries he could classify the pain and suffering as moderate. In his opinion, the plaintiff would continue to suffer moderate pain about one month after the accident.

7 Under cross-examination, Dr. Rattan stated that he saw the plaintiff about 5 times and he considered him to be more prone to suffer headaches as a result of the injury than a person who did not suffer such an injury.

8 Also called by the plaintiff was Carlton R. Drayton, Fire Inspector of the Equitable Insurance Company and its court representative who testified that his company were insurers of PR 5851, which was involved in an accident on the 19th May, 1976. According to the Company's files, the said vehicle was never repaired. It was sold as a wreck for $1,100.00. The plaintiff was $2,594.00 on a total loss basis. The value of the excess was $750.00. The vehicle was insured for $3,400.00 and at the time of the accident it was four years old. The Company depreciated value by $56.00 leaving a total of $3,344.00 from which the sum of $750.00 excess was deducted leaving $2,594.00 for which the claim was finally settled.

9 The last witness called was Lionel Maharaj, an auto body straightener and painter with 20 years experience who stated that Equitable Insurance Company dropped vehicle PR 5851 at his garage. It would not have been profitable to repair the car owing to the extent of its damage. He assessed the pre-accident value at $3,500.00 and post accident value at just 1,000.00.

10 During the course of his submissions, the solicitor for the defendant cited the case of Abdool Mohammed v Lionel Braithwaite No. 1444/64 Cherrie J. presiding, as being analogous to the facts of the instant case. The facts of that case are as follows:– the plaintiff was injured whilst cycling and as he got abreast of a car, the door opened and struck him, causing him to fall. The medical evidence was that he was bleeding from his ear and nose and the clinical diagnosis was concussion and fracture of the base of the skull. He continued to complain of headaches which Dr. Ghouralal attributed to the injuries and according to the doctor it is not unusual for symptoms to re-appear after a period of well being. They may or may not continue. Being able to base his award on the fact that he will continue to suffer from the headaches, the trial judge assessed general damages for pain and suffering at the sum of $1,200.00.

11 Counsel on behalf of the plaintiff referred to Kemp and Kemp Volume 24th Edition part 3 Head, personal injuries Reports at p. 3020 in case of Proctor v Thomas De La Rue & Co. Ltd. 1971 C/A No. 379, November 8 in which the plaintiff was a porter aged 58 at the date of the accident in June, 1966. He fell 12 ft and hit his head. He was unconscious for about 30 seconds. He did not sustain any significant injury to his head. He was in hospital for one day and in bed at home for a few days. He returned to work...