Mohammed v Bellamy, The Attorney General and Sookdeo
| Jurisdiction | Trinidad & Tobago |
| Judge | Rampersad, J. |
| Judgment Date | 25 May 2009 |
| Neutral Citation | TT 2009 HC 111 |
| Docket Number | H.C.A. No. 11 of 2002; H.C.A. No. 66 of 2002 (POS) |
| Court | High Court (Trinidad and Tobago) |
| Date | 25 May 2009 |
High Court
Rampersad, J. (Ag.)
H.C.A. No. 11 of 2002; H.C.A. No. 66 of 2002 (POS)
Mr. S. Parsad for the plaintiff.
Ms. K. Boodan and Mr. S. Julien for the 2nd and 3rd defendants.
Proprietary estoppel - Plaintiff constructed a permanent home on land with encouragement and acquiescence of deceased who had occupied 4000 sq ft of land in excess the amount which she had rented from Caroni (1975) Ltd. — Family of deceased were aware of the transaction and it would be unconscionable to allow then to make the plaintiff pull down his construction and move away.
Rampersad, J. (AG.): On 12 January 1998, motor vehicle registration number HAN 5600, which was owned and driven by the first defendant, was involved in a collision with motor vehicle registration number PAZ 8021, which was owned by the second defendant and driven by the third defendant. The plaintiff was a passenger in vehicle HAN 5600. The collision occurred in the vicinity of the intersection of the Uriah Butler Highway and Churchill Roosevelt Highway, Valsayn.
In her Statement of Claim dated and filed on 3 January 2002 and amended by consent and re-filed on 30 January 2009, the plaintiff detailed the following particulars of injuries:
1.2.1. Multiple face lacerations including upper and lower left eyelids; lower lip, chin and left cheek, broken upper jaw, fractured ribs, dislocated knee, bruises in the left upper extremity, diminished vision in left eye.
1.2.2. Three (3) left upper incisors chipped. As a result the plaintiff began experiencing pain in these teeth which required her to undergo two root canals in June 2008.
1.2.3. The plaintiff's facial scarring is permanent.
1.2.4. Facial disfigurement includes the left upper eyelid downward sloping step scar with different hypigmented skin in flap, loss of lashes at medial border and difficulty in closure during sleeping. 1 inch depression at right mandibular border that remains depressed about 1/4 inch from surrounding tissues; keloid formation 2 inches long at left nasolabial fold that involves the lower malar border. Facial disfigurements have produced personality changes in the plaintiff.
1.2.5. Facial disfigurement creates an extensive psychological impairment for the plaintiff.
1.2.6. According to the 1996 Florida Uniform Permanent impairment rating the facial abnormalities limited to cutaneous structures places that plaintiff in a class one impairment rating of 5%.
1.2.7. Osteochondral Tibial defect at left knee associated with meniscus degenerative changes.
1.2.8. Left knee effusion.
1.2.9. Painful knee syndrome — possible chronic tenosynovitis.
Continuing Effects:
1.3.1. The claims in her statement of claim that she has been left with a permanent partial disability of 10% and has continuous pain in her left eye. She also claims that she has permanent scars on her left eyelid, lower lip, chin and left cheek and continues to visit doctors. She has tenderness in her left rib cage, left knee, no focal findings. Visual acuity 20/40 bilaterally. Plastic surgery performed, fractured ribs with residual pain, knee dislocation with knee pains and eye injury with diminished vision. Permanent partial disability as at 12/07/06 assessed at 40%. Likely to suffer sudden or subtle incapacitation.
1.3.2. The plaintiff claims to have suffered psychologically from the extensive scarring to her face. She says she finds it difficult to socialize for she always feels people are staring at her scars and so she shuns public appearances as much as possible.
1.3.3. The plaintiff also claims to have suffered from constant, debilitating knee pains. This intensifies whenever temperatures fall and the weather is cold. Since the accident she says she is unable to perform usual daily work and social activities.
The plaintiff's claim in negligence sought damages for personal injuries and consequential loss suffered as a result of the accident caused by (a) the first defendant and/ or (b) the third defendant acting as servant and/ or agent of the second defendant and/ or (c) the third defendant acting for his own purpose, benefit and/ or concern in the driving, management and/ or control of motor vehicle registration number PAZ 8021.
In the usual fashion, the plaintiff also sought to recover interest, and any further relief, which the Court deemed fit.
The court accepts that an amendment takes effect not from the date when the amendment is made but from the date of the original document which it amends. In this matter, this court draws no adverse inference from the amendments made on behalf of the plaintiff especially since those amendments were made with the consent of the second and third defendants.
On 28 February 2002, the second and third defendants responded by way of joint defence. Whilst there was no dispute as to the date and venue of the collision as cited in the plaintiff's Statement of Claim, the defence (of the second and third defendants) nonetheless maintained that the said collision occurred either wholly or in part by the negligence of the first defendant. The first defendant however, failed to enter an appearance and judgment in default thereof was entered against him on 19 April 2002.
Following the Pre Trial Review on 23 January 2007, the instant matter was set down for trial on 27 February 2007 before the Honourable Mr. Justice Ibrahim (as he then was). On the said trial date, neither plaintiff nor defendant was ready to proceed. Pursuant to the relevant application, the plaintiff amended her list of documents and Statement of Claim, both of which were dated and filed on 27 February 2007.
By Consent Order dated 11 July 2007, liability of the second and third defendants to the plaintiff was adjudged to be 85% of damages to be assessed and costs to be taxed.
At the hearing which came up before this court, the plaintiff was not cross examined and her statement and the medical reports referred to below were all put in by consent.
The question of liability having been conceded, the only issue that remains for the Court's determination is the quantum of damages to be awarded to the plaintiff.
The plaintiff's Claim for Damages:
2.2.1. Pursuant to an Order made on 26 January 2009 for written submissions by the plaintiff and defendants on the issue of the quantum of damages to be awarded, the plaintiff proposed the following:
General Damages – $350,000.00
Interest on General Damages – $294,000.00
Total General Damages with Interest – $644,000.00
Special Damages – $25,519.00
Interest on Special Damages – $14,801.00
Total Special Damages with Interest – $40,302.00
Loss of Future Earnings – $20,800.00
Cost of Future Treatment – $954,560.00
Sub-Issues:
1. As aforementioned, the hearing before this court as to quantum was by way of written submissions. Those on behalf of the plaintiff were filed on 30 January 2009 and on behalf of the second and third defendants, on 18 February 2009. Submissions on behalf of the plaintiff in reply were filed on 4 March 2009.
2. In light of the above submissions, the following sub-issues have emerged for the Court's consideration:
2.3.2.1. Whether having waived their right to cross-examine the plaintiff and her witnesses, the defendants may thereafter raise objection to certain aspects of such unchallenged evidence?
2.3.2.2. Whether the plaintiff is allowed to obtain the full fruits of her judgment against the second and third named defendants despite the order of the 11th July 2007 which apportioned the second and third named defendants' liability at 85%?
2.3.2.3. Whether, as contended by the defendants, the plaintiff's claim to the amount of damages is excessive, unsubstantiated and not in accordance with decided cases?
2.3.2.4. Whether the plaintiff's future treatment should practically and/or reasonably be sought in the United States or Trinidad and Tobago having regard to (a) the difference between the costs for such treatment in the two jurisdictions, and (b) the plaintiff's permanent residence in Florida.
In support of the plaintiff's claim for damages, the court had recourse to the following documents:
3.1.1. Witness Statement of the plaintiff 3.1.2. Witness Statement of Dexter Lewis
3.1.3. Several Medical Reports which were tendered into evidence by consent.
Witness Statement of the plaintiff:
By way of witness statement dated and filed on 27 November 2008, the plaintiff stated that she was born on 25 March 1972. On 12 January 1998, she was involved in a motor vehicular accident along the Churchill- Roosevelt Highway in the vicinity of Nestle, Valsayn. She was the middle front seat passenger of the first defendant's motor vehicle which was sited at the intersection of the Churchill-Roosevelt Highway and Uriah Butler Highway, “when an ambulance proceeding in the opposite direction broke the traffic light and crashed into HAN 5600.”
Injuries:
At the time of impact, the plaintiff was pushed forward and hit her head, face, chest, left hand and knee on the dashboard of the car. She lost consciousness and when she regained consciousness, she experienced tremendous pain in the said areas, as well as to her ribs, fingers, eyes, lip and teeth. Her left eye was bashed in, the left eyelid was bleeding profusely, and the skin in her left eyelid had come off leaving the left eye exposed.
Following the accident, the plaintiff was taken to the Mount Hope Hospital where she was attended to by a doctor who stitched her open facial wounds which were subsequently subjected to cleaning and dressing procedures. Two stitches were placed on her left index finger, her left knee was bandaged, but nothing was done to her chipped teeth at Mount Hope on the date of the accident. The plaintiff was discharged from the hospital on...
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