Ramsaran v Ramnath
| Jurisdiction | Trinidad & Tobago |
| Judge | Basdeo Persad Maharaj |
| Judgment Date | 29 June 1984 |
| Neutral Citation | TT 1984 HC 106 |
| Docket Number | 4102 of 1980 |
| Court | High Court (Trinidad and Tobago) |
| Date | 29 June 1984 |
High Court
Maharaj, J.
4102 of 1980
Mr. Oudit Ramlogan for the plaintiff
Mr. David A.R. Patrick for the defendant
Tort - Damages — Personal injury (Comminuted fracture of left homerus complicated by radial palsy)
Basdeo Persad Maharaj The plaintiff issued his Writ of Summons in this action against the defendant on the 23 rd day of October, 1980 and on the said day filed his Statement of Claim together with the Writ of Summons. The defendant entered an appearance on the 30 th day of October, 1980 and on the 20 th day of November, 1980 delivered his defence and counterclaim. A rely and defence to counterclaim was delivered on the 4 th day of December, 1980.
The plaintiff by Writ of Summons and Statement of Claim claimed damages and consequential loss arising out of an accident at m.p. Plum Mitan in the Easter Counties on Sunday the 10 th day of August, 1980 between motor car PN–6190 and the defendant’ motor car PW–1442 thereby occasioning personal injuries to the plaintiff. The plaintiff in paragraph 3 of his Statement of Claim alleges inter alia that the aforesaid accident was caused by the negligence of tine defendant and the Particulars of Negligence are therein set out.
On the 16 th day of April 1984, The Honourable Mr. Justice Mc Millan by consent of the plaintiff's and the defendant's counsel made the following order:–
- Leave to the plaintiff to amend his Statement of Claim in terms of the draft annexed to Notice dated 6th April, 1983; 2. Judgment for plaintiff on amended Statement of Claim with damages to be assessed by master or judge in Chambers; 3. Costs to be taxed in default of agreement; 4. Counterclaim of defendant dismissed; 5. No order as to costs.
The assessment of damages came before this Court on, the 8 th day of June, 1984 and both the plaintiff and the defendant were represented by counsel.
Dr. Collymore's Evidence:
Dr. H.M. Collymore F.R.C.S.. was the first witness called for the plaintiff. I shall deal with the doctor's evidence in extenso having regards to the several submissions made by the defendant’ counsel hereunder specified. The Doctor's evidence in chief was that he saw the plaintiff on the 2 nd September,.1980 and that he examined him. That the plaintiff was involved in a motor vehicular accident on the 10 th day of August, humerus complicated by radial pals. That a plaster cast was applied to the left humerus and a cock-up splint to hold up the plaintiff's wrist. The plaintiff's wrist had dropped because of radial palsy.
On the 4 th September, 1980 an x-ray was carried out which showed healing with slight angulation. The plaintiff was seen from time to time. On the 14 th October, 1980 the plaintiff also reported receiving fractures of the right ribs, the greater trochanter of the right femur and a laceration of the right thigh 6cm long.
On the 18 th November, 1980 the plaintiff's plaster cast was removed and a new cock-up splint applied and he was referred to the, Physiotherapy Department for electrical treatment of his radial nerve palsy.
His palsy did not recover.
On the 16 th January, 1981 an operation was performed to transfer tendons to compensate for his radial nerve palsy. An Opponens transfer was used to improve opposition of thumb. That is to enable the plaintiff to touch the other fingers.
The plaintiff had had a previous wound on the hand which had divided the ulnar nerve and suture had bean performed following which the plaintiff had been able to return to work. The plaintiff’ condition however, had deteriorated following this subsequent, injury.
When seen on the 5 th January, 1981 the plaintiff was unable to pick up small objects or grasp with the hand. There was weak opposition of the thumb, extension of the metacarpo-phalangeal joints, flexion of the proximal interphalangeal joints and adduction of the thumb. The plaintiff's grip was not measurable. His permanent partial disability was assessed at thirty per cent (3).
The doctor further gave evidence in chief that if the plaintiff was a person who used to cutlass cocoa he will not be able again to use the hand to cutlass and that was the position on the 8 th day of June, 1984. At this point the Doctor's Medical Certificate dated 6 th May, 1981 was admitted by consent and tendered into evidence and marked “H.R.1”.
Cross-Examination of Dr. Collymore
Under cross-examination by the defendant's counsel the doctor admitted that on the 2 nd September, 1980 the plaintiff complained about specified injuries. That the plaintiff had broken his arm, his left arm and the plaintiff could not raise his left wrist. The Doctor said that he had no record that the plaintiff complained of other injury.
On the 4 th September, 1980 there was an x-ray done at the Doctor’ request and based upon the complaint which the plaintiff had suffered. The Doctor said that he saw the plaintiff on the 4 th September, 1980 and at that time the plaintiff did not complained of any injury.
The Doctor admitted that he saw the plaintiff on the 14 th October when the plaintiff reported that he had received fracture of the right ribs. The plaintiff did not complain before. The plaintiff complained about fracture of the ribs and in the region of the hip and a laceration or cut on the thigh. The Doctor admitted that he did not asks for x-rays of the right hip and that when he first saw the plaintiff the fracture of the ribs would have healed. The other fractures would have healed. The greater trochanter, the upper part of the femur. The Doctor stated that he did not take x-rays on that as these injuries were not giving the plaintiff any trouble and that the assessment made did not make these injuries into account.
In the absence of an x-ray of the greater trochanter the Doctor merely took the plaintiff’ word for it. The Doctor admitted that there were no x-rays taken of the right ribs or of the greater trochanter.
On the 14 th October the plaintiff showed to the Doctor a laceration of the right thigh. The Doctor said that he must have attended to this laceration. “It was 6 cm long. I must have seen it. I say no more. 6 cm is a little under 3 inches-about 2-inches. The laceration was not serious. I did not consider it a serious matter”.
On the 5 th May, 1981 the Doctor examined the plaintiff’ left hand and the plaintiff was unable to grasp small objects or to pick up anything. The hand was subject to a previous injury. There was a division of the ulna nerve. He had nurtured it at the General Hospital San Fernando some year before and following this injury the plaintiff had been able to use his hand. As regards the first injury, the plaintiff had fallen on a cutlass and he had an incise wound on the ulna aspect of the hypothener eminence of the palm. The Doctor’ evidence was however clear as regards the first injury in that the plaintiff could move his fingers and was able to perform his work. As a result of the first injury the Doctor did say that the plaintiff was on the waiting list for operation to the hand.
The Plaintiff’ evidence-Re: Personal Injuries’
It would be appropriate at this stage to deal with the plaintiff’ evidence which was given on the 13 th June, 1948 in relation only to the plaintiff’ personal injuries. The plaintiff gave evidence that he was born on the 22 nd August, 1926 so at the time of the accident on the 10 th August, 1980 the plaintiff was 55 years of age.
The plaintiff stated that on the 10 th August, 1980 he was involved in an accident. “I was then 54 years of age. That judgment was given in my favour in this present matter. As a result of the accident with the defendant’ vehicle my left arm was broken, 2 right ribs were fractured and the right hip … My left hand was in Plaster of Paris for one year. I undergo three operations with Dr. Collymore … I do not use the left hand when I am working now. It has no strength.” The plaintiff further gave evidence that he is left handed.
Cross-Examination of the plaintiff:
The cross-examination of the plaintiff by the defendant’ counsel dealt with wholly and solely with the loss of the earnings as claimed by the plaintiff in his amended statement of claim. The defendant’ counsel did not challenge the plaintiff’ evidence enumerated above and the defendant led no evidence whatsoever.
Despite the evidence of the plaintiff and that of Dr. Collymore and despite the Medical Certificate of Dr. Collymore admitted into evidence and marked “H.R. 1” the defendant's counsel took the point that the Plaintiff led no evidence that he (the plaintiff) received personal injuries as a result of the accident with the defendant's vehicle. I am unable to agree with counsel's submission.
On the evidence led before me I hold. that the plaintiff on the 10 th August, 1980 did receive personal injuries as result of a collision with the defendants car and in particular the plaintiff sustained a comminuted fracture of the left humerus complicated by radial palsy.
For the purpose of this assessment I would confine myself at this point to the fracture of the left humerus as the Doctor based his assessment solely upon this injury.
As regards the plaintiff's injuries to his right ribs, of the right greater trochanter and a laceration of the right thigh 6 cm long I intend to deal with these injuries as very minor injuries with the plaintiff suffering no permanent partial disability whatsoever and would consider these injuries when I come to give a global award.
I have seen the plaintiff giving his evidence n the witness box and he strikes me as a witness of truth in particular to the injury which he said he suffered. The plaintiff did not give any evidence as to the injury of the right thigh but having regard to the Doctor's evidence I believe that the plaintiff did suffer...
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