Tewarie v Scotiabank Trinidad and Tobago Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Alexander, M.
• Judgment Date: 05 May 2014
• Neutral Citation: TT 2014 HC 201
• Docket Number: 3807 of 2008
• Court: High Court (Trinidad and Tobago)
• Date: 05 May 2014

High Court

Alexander, M.

3807 of 2008

Tewarie

and

Scotiabank Trinidad and Tobago Limited

Appearances:

For the claimant: Mrs. Lynette Maharaj SC instructed by Ms. Shaheera Allahar.

For the defendant: Mr. Kerwyn Garcia instructed by Ms. Jaisingh.

Civil practice and procedure - Application to vacate and/or set aside certain orders — Application for leave to file further particulars of special and general damages — Statement of care must identify all heads of losses claimed under general damages — Application to extend time for filing/serving witness statements — Application made in compliance with the rules — Factors to be considered in an application for an extension of time — No requirement for application for relief from sanctions — Part 8, 20.1, 26.1(w), 26.7(4), 27.9(2), 27.10(3)(c), 29 of the Civil Proceedings Rules.

Alexander, M.

1 There were a number of missteps taken by the claimant in this matter which led to a flood of applications in a bid to correct them. For the sake of clarity, I will outline the applications from the outset before proceeding to treat with them:

• (i) Application to set aside direction orders of the court;

• (ii) Application to provide further particulars of both special and general damages;

• (iii) Application –

  • • to extend time for the filing of witness statements and for permission to amplify evidence at the assessment, if necessary;

  • • for medical reports to stand as witness statements and for directions as to the doctors required to attend the assessment.

• (iv) Application for relief from sanctions.

It is important to bear in mind that all of these applications were filed by the claimant.

APPLICATION 1

TO VACATE AND/OR SET ASIDE CERTAIN ORDERS

1 By her application filed on 12th July, 2012 the claimant sought to vacate and/or set aside directions given on 14th November, 2011 and 16th March, 2012 with respect to the filing of documents by the defendant and for the claimant to file further particulars of special and general damages. The background to this matter is of some relevance in placing the current application in context and is outlined below.

2 A default judgment was taken up against the defendant on 3rd March, 2009 with respect to the claimant's claim for personal injuries, which the defendant sought to have set aside. The application to set aside was dismissed on 19th December, 2009. Subsequently, the defendant appealed to the Court of Appeal and on 1st February, 2010 the appeal was dismissed.

3 When this matter first came up for hearing before this court on 14th November, 2011, the court was informed that parties were trying to settle the matter and directions were issued in the following terms:

• a) List of documents to be filed and served on or before 16th December, 2011;

• b) Inspection to take place on or before16th December, 2011;

• c) Agreed and unagreed bundle of documents to be filed and served on or before 20th January, 2012.

4 Then, parties consented to extensions of time for compliance with the above order on the following dates: (i) 23rd January, 2012 (ii) 2nd March, 2012 and (iii) 16th March, 2012.

5 As regards the instant application, it is accepted that in an assessment after a default judgment, a defendant's rights of hearing are limited to costs, time of payment of any judgment debt and enforcement. A defendant who has a default judgment entered against him is debarred from leading evidence, cross-examining witnesses or filing submissions except on costs, time for payment and enforcement. The directions given on 14th November, 2011 in so far as they were deemed to have related to the defendant are outside the jurisdiction of this court to give and so are vacated and/or set aside.

APPLICATION 2 –

FOR LEAVE TO FILE FURTHER PARTICULARS OF SPECIAL AND GENERAL DAMAGES

6 The second limb of the application of 12th July, 2012 is for the filing of further particulars of special and general damages. In issue is whether this application is to provide further particulars or for a re-amendment.

SPECIAL DAMAGES

7 In the instant case, the claimant's amended claim was filed on 29th January, 2009 with an annexed “Schedule of claimant's Expenses”, which detailed the cost of travelling (specifying number of visits to doctors etc.); medical expenses (not claimed under Group Health Insurance Plan); cost of purchasing special equipment (commode, cane, walker); household assistance (provided by Shirley Sooklal from 2005 – 2007 and by Kelly Henderson from June, 2007-2008); personal care assistance provided by Kawal Samaroo from September, 2006 –December, 2008; loss of earnings from 04/07/05 – 31/12/08; cost of Group Life, Medical and Dental Insurance; medical expenses (foreign and local, including what was not paid for under the Group Health Insurance Plan); cost of airfare (return), accommodation, meals, transport (including to and from airport) and care assistance by Annsuia Forde. Several supporting documents were annexed to the amended as well as the original claim. The schedule also referred to these expenses as continuing as well as another claim, for which full details were not provided, namely the “Loss of Benefit under the Scotiabank Global Employee Share Ownership Plan” but which was “To be supplied”.

8 Apart from this schedule of expenses, the amended claim also annexed:

1

) “A” - a bundle of medical reports referred to in the amended statement of case; 2) “B” - a list of the documents sent to the defendant under pre-action protocol letter dated 2nd April, 2008; 3) “C” - a list of additional documents in support of particulars of special damages filed on 2nd October, 2008. 4) “D” – a list of additional documents sent to the defendant under cover letter dated 29th January, 2009.

9 It is not in dispute, therefore, that the claimant, in pleading and particularizing her claim for special damages, properly attached a schedule outlining the heads of losses under which she was claiming special damages (that is damages she incurred up to the date of the filing of the amended statement of case). This schedule outlined the claimant's case in detail and provided numerous supporting documents of medical expenses; sick leave certificates; travelling; household assistance; personal care and purchases of special equipment. The amended statement of case stated, giving brief particulars of material facts, that the claimant has sustained pain and suffering and is unable to do her normal household tasks and social activities. It also referred to a list of medical reports (already passed to the defendant) that outlined her ongoing medical condition, advising that additional particulars will be provided as updated medical reports are available. It would appear that her claim had not fully crystallized as at the date of filing of the amended statement of case.

10 Under the heading “PARTICULARS OF SPECIAL DAMAGES” at page 6 it was stated to wit:

“A Schedule of details of past expenses and losses is attached. Documents in support of the past expenses and losses were sent to the defendant under pre-action protocol letter dated 2nd April, 2008 and a list thereof is now annexed to the Schedule marked “B”. A list of the documents filed on 2nd day of October 2008 is annexed to the Schedule marked “C”. An additional bundle of documents was forwarded under separate cover of letter dated 29th January 2009 to the defendant a list of which is annexed to the said Schedule marked “D”. The claimant reserves the right to provide particulars of the amount of additional and future expenses and losses as soon as these are available.”

11 It is clear that what have been provided via this means are the estimated amounts of her expenses to the date of filing. She then reserved the right to advise the defendant later of the amount of additional and future expenses and losses as soon as these became available. The implication, to my mind, is that these additional expenses were not available as at the time of filing and by notice of reservation, the claimant was making it clear that she was not waiving her legal rights to these claims. In such a case, the defendant is free to make a request to the claimant for further information at any stage of the proceedings. This was not done by the defendant so the claimant sought by this application to provide the “further” particulars of her claim.

12 A look at the new edited schedule of the claimant's expenses revealed that some of the information now being sought to be provided came both before and after the amended statement of case. There were also some claims for which dates were not provided. As regards claims which were pleaded to be continuing and which clearly post-dated the amended statement of case, I concluded that there was no reason to prevent the claimant from bringing the updated position. This includes the updated position for medical expenses not claimed under the Group Health Insurance Plan. The claimant is, therefore, allowed to provide the further particulars for these claims. I will now turn to look at this application from 3 streams:

• • Further particulars of claims that pre-dated the amendment which were left out of pleaded heads

• • Further particulars of ‘new’ claims

• • Further particulars of certain undated claims

FURTHER PARTICULARS OF CLAIMS THAT PRE-DATED THE AMENDMENT WHICH WERE LEFT OUT OF PLEADED HEADS

13 Under this would fall the particulars provided for 1 day of travelling (16th January, 2009) to visit Sangre Grande Hospital (see annexure) and on the same day to Dr Steve Mahadeo. There was 1 claim also for a visit to Dr Steve Mahadeo on 29th October, 2008. Further particulars of travelling to visit doctors during October, 2004 - May, 2005 (updated from $10, 740.00 to $13, 020.00) to reflect an increase of $2, 280.00 were also sought to be given. This transportation was provided by the claimant's husband, Robindranath Tewarie....