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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE Port of Spain

Claim No: CV2016-03211

BETWEEN

RENNIE BISSOON

CLAIMANT

AND

ABSOLUTE TRANSPORT LIMITED

(FORMALLY K&C LOGISTICS LTD)

DEFENDANT

Before the Honourable Madame Justice Margaret Y. Mohammed

Date of Delivery February 25 2019

APPEARANCES:

Mr. Anderson Denny Modeste Attorney at Law for the Claimant.

Mr. Kirk Bengochea instructed by Ms. Sharla Mungroo Attorneys at Law for the

Defendant.

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JUDGMENT

1. The Claimant was employed by the Defendant as a Driver/Salesman on the

18 July, 2014 (“the date of the accident”) and while in the performance of

his duties, he fell off a truck and suffered injuries for which he now claims

damages against the Defendant.

THE PLEADED CASE

2. On the date of the accident the Claimant drove a delivery truck (“the

truck”) to Reynold’s Wholesale and Retail (“Reynold’s Wholesale”) located

at Mausica Road, D’Abadie. The delivery truck was filled to capacity with

cases of beverages which were wrapped with plastic. At Reynold’s

Wholesale, the Claimant commenced off-loading the cases of beverages.

In order to access the stack of beverages, the Claimant had to stand on the

ledge of the tray of the truck which measured approximately 15 feet by 8

inches and which was 3.5 feet above the road. The Claimant also used his

hands to tear away the plastic wrapped around the beverages. As he was

removing the plastic wrapping, it gave way causing him to jerk backwards

which resulted in him falling onto the roadway as he lost his footing. He hit

his buttocks, back, hip and hands and he endured excruciating pain at the

time.

3. The Claimant requested from the Defendant to send a driver to relieve him

from duty but he was told that there were no drivers available. He drove

the truck back to the Defendant’s dispatch location at Endeavour Industrial

Estate, Chaguanas while in intense pain.

4. After returning the truck, the Claimant requested assistance to go to a

doctor but he was told there was no driver available. He used public

transportation and he returned home.

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5. About one month after the accident, the Claimant underwent a MRI and

the report indicated that he sustained injuries to various parts of his back.

He also underwent a number of physiotherapy sessions with Kamla

Ramdath-Cumming, Registered Physiotherapist/Certified Lymphedema

Therapist who recommended a further course of physiotherapy sessions1.

6. Between the date of the accident and 2016 the Claimant visited several

doctors who confirmed his injury to the back, cervical spine and left and

right shoulders.

7. On 27 February, 2016 the Claimant collected a package from the security

booth of his work place and he found a letter dated 26 February, 2016 and

a cheque for twenty-seven thousand dollars ($27,000.00) which he never

cashed. The Claimant was terminated from his employment on 29

February, 2016 and he has since then borne the burden of his medical

expenses.

8. Subsequently, in the same year, the Claimant had two pre-action letters

sent to Mr. Jarryd Rampersadsingh, Director of the Defendant.

9. The Claimant contended that the fall was caused by the negligence of the

Defendant and he seeks an order for damages, costs and interest.

10. It was not disputed by the Defendant that it terminated the Claimant’s

employment on the 29 February, 2016. The Defendant stated in the

interest of compromise and after a mutual decision was made to terminate

the Claimant, an ex gratia payment of $27000.00 was made to him.

1 See reports dated 13 October, 2014 and 14 and 31 January, 2015

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11. The Defendant’s Defence was both on liability and quantum. With respect

to liability, it denied that the Claimant was compelled to stand on the ledge

of the tray of the truck to do his job. It stated that the measurements of

the tray of the truck was 100 inches wide, 24 inches above the road and 5

inches inside and not 15 feet by 8 inches and 3.5 feet above the road as

pleaded by the Claimant.

12. The Defendant contended that the Claimant failed to utilize a practical

approach and reasonable judgment to unwrap the plastic which was

around the beverages and that any injury which he suffered was caused

wholly or in part by his own negligence. The Defendant stated that the

Claimant was provided with safety boots, and back straps and that the task

that the Claimant was required to perform was not of such a complex

nature that it required training and supervision.

13. With respect to quantum of the damages claimed, the Defendant denied

that the Claimant asked for a driver to relieve him after the fall and that he

was told there were no drivers available; and that he asked for assistance

to go to a doctor but was told there was no driver available.

14. The Defendant did not deny that the Claimant obtained a MRI report after

the accident or that he attended and received medical reports from three

doctors and a report from the Physiotherapist. The Defendant stated that

it paid for the Claimant’s medical visits, medical reports and physiotherapy

sessions until his employment ended on 29 February, 2016. However, it

disputed the contents on the said documents on the basis of hearsay

statements. The Defendant pleaded further that the Claimant had a pre-

existing condition as stated in MRI report dated 6 September, 2014.

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15. The Defendant stated that at the time the pre-action letter was issued, Mr.

Jarryd Rampersad ceased to be a Director and his employment with the

Defendant also ceased. The Defendant also stated that it had paid the sum

of $9322.00 to the Claimant as Workmen’s Compensation and deposited

the sum of $53,012.14 to the Registrar of the Supreme Court on 8 October,

2015 pursuant to Sections 9(2) and (3) of the Workmen’s Compensation

Act2.

THE ISSUES

16. The issues which are to be determined are:

(a) Did Defendant fail to provide a safe place of work for the

Claimant?

(b) Did the Claimant contribute to his injuries and if so, to what

degree?

(c) If the Defendant was responsible for the Claimant’s injury, what

quantum of damage should be awarded to the Claimant?

THE WITNESSES

17. At the trial the Claimant gave evidence on his behalf and he called three

other witness namely Ms. Gail Sayres, Mr. Richard Ramdeen and Mr.

Richard Agostini. The Defendant’s witnesses were Mr. Shawn Heera and

Ms. Shakti Bachoon.

DID DEFENDANT FAIL TO PROVIDE A SAFE PLACE OF WORK FOR THE

CLAIMANT?

18. A finding of negligence requires proof that the Defendant owes a duty of

care to the Claimant; the Defendant has breached that duty; and the

2 Chap. 88:05

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damage to the Claimant was attributable to the breach of the duty by the

Defendant3. There must be a causal connection between conduct and the

damage and the kind of damage suffered by the Claimant must not be so

unforeseeable as to be too remote4.

19. At common law an employer has a non-delegable duty (a) to provide a safe

place of work, including a safe means of access; (b) to provide competent

employees and supervision; (c) to provide and maintain proper plant and

machinery; and (d) to provide a safe system of work5. All the circumstances

relevant to the particular employee must be taken into consideration,

including any particular susceptibilities he may have6.

20. The duty to provide a safe place of work requires the employer to make

the place of work as safe as the exercise of reasonable care and skill would

permit7. Whilst an employer has a duty to take care to ensure that the

premises where his employees are required to work are reasonably safe,

in each case, the degree of care to be taken by the employer will vary

according to the circumstances8.

21. The duty to provide a safe system of work does not require perfection. It

is a duty to take reasonable steps to provide a reasonably safe system of

work with regard to the inherent dangers in the operation9. An employer's

duty is not that of an insurer. The employer does not undertake that there

will be no risk, merely that such risks as there are will be reduced so far as

3 Charlesworth & Percy on Negligence 12th Edition, Chap 1 para 1-19. 4 Clerk & Lindsell on Tort 19th Edition, Chap 8 para 8-16 5 Munkman on Employer’s Liability 16 Ed para 2.4B; Charles and Percy on Negligence 12 ed at

paragraphs 11-17 and Halsbury's Laws of England, Volume 52 (2014), paragraph 376 6 Halsbury's Laws of England, Volume 52 (2014), paragraph 376 7 Charlesworth and Percy on Negligence 12th edition para 11-18. 8 Wilson v Tyneside Window Cleaning Co. [1958] 2 QB 110, Cook v Square D. Ltd [1992] PIQR 33. 9 Charlesworth and Percy on Negligence 12th edition para 11-69

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reasonable. To the extent that this leaves an employee at risk, he will

accept the inherent risks that cannot be avoided by the exercise of such

reasonable care and skill on the part of his employers10.

22. The duty to take reasonable care will generally involve, as a starting point,

a duty to perform an adequate assessment of all of the risks to which

employees may be exposed during the course of employment, in order

then to determine appropriate precautions to be taken to avoid injury11 .

It is no defence where the Claimant was an experienced employee who

never complained about the safety of his workplace12.

23. The Claimant pleaded that the Defendant was negligent since it failed to

do the following:

(i) Ensure that the work was at a height which was carried out in a

manner so far as is reasonably practicable, safe;

(ii) Provide the Claimant with adequate equipment for the safe

execution of his work by way of a cutting device to use on the

plastic wrapping thus exposing him to an unnecessary risk of

injury;

(iii) Provide or implement a safe system of work thus exposing him to

an unnecessary risk of exposure; and

(iv) Furnish the Claimant with comprehensible and relevant

information on the risks to his health and safety and the

preventative or protective measures identified by a risk

assessment, and/or provide adequate health and safety training.

10 Munkman on Employer's Liability 16th edition para 4.62 11 Charlesworth and Percy on Negligence 14th Ed. 12-25 12 Charlesworth and Percy on Negligence 14th Ed. 11-20

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24. The Claimant also pleaded that the defendant was negligent since it

permitted or required the Claimant to work on an inadequately sized

surface area at a height when it was unsafe to do so.

25. The Defendant stated that it was not negligent since the Claimant failed to

utilize a practical approach and his reasonable judgment to unwrap the

plastic which was around the beverages and that any injury which he

suffered was caused wholly or in part by his own negligence in that the

Claimant:

(i) Failed to utilize any sharp object to unwrap the plastic;

(ii) Failed to take any proper precaution for his own safety, having

regard to the ongoing work;

(iii) Acted without due care and attention in the circumstances by

tearing the wrapping using his hands and standing on the ledge of

the tray as pleaded by the Claimant;

(iv) Acted in a manner which was heedless to his own safety by

standing on the ledge of the tray;

(v) Failed to heed and/or act upon the wrapping giving away when

the Claimant was tearing the wrapping with his hands; and

(vi) Failed to have regard for his own safety in his management and/or

unwrapping of the product.

26. The onus was on the Claimant to prove that the Defendant was negligent

since it failed to take steps to protect him. The Claimant’s case was that

the Defendant failed to provide a safe system of work since (a) there was

no training of the Claimant for the job to be done; and (b) there was no risk

assessment of the job, namely: it caused the tray of the truck to be filled

to capacity which necessitated the Claimant to stand on a narrow ledge at

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a height to unpack the truck; and it failed to provide a device for the

Claimant to cut the plastic wrap which was used around the beverages.

Training of the Claimant

27. It was submitted by the Defendant that no training was required for the

task since it was not complex in nature and it required no supervision.

28. The task which the Claimant was involved in when he was injured was off

loading cases of beverages which were wrapped in plastic from the tray of

a truck which was filled to capacity. The unchallenged evidence of the

Claimant, his witness Mr. Richard Ramdeen and the Defendant’s witness

Mr. Shawn Heera was that there was no training with the drivers with

respect to the offloading process. In cross-examination, the Claimant

stated that he was doing the same job for about a year before the accident

and that although it was a task, which did not require supervision, it was

not a basic task.

29. In my opinion, there was no evidence advanced by the Claimant to

demonstrate that the off-loading of the beverages from the tray of the

truck was a complex or unusual task which required supervision or training.

As such I was not convinced that the Defendant’s failure to provide any

training for this task meant that it failed to provide a safe system of work.

Risk assessment of job to be done

30. There were two aspects of the Claimant’s job which he alleged the

Defendant did no risk assessment, namely: it caused the tray of the truck

to be filled to capacity which necessitated the Claimant standing on a

narrow ledge at a height to unpack the truck; and it failed to provide a

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device for the Claimant to cut the plastic wrap which was used around the

beverages.

Truck filled to capacity

31. The Claimant testified that on the day of the accident, he and two other

employees were making deliveries to customers. He was the driver and the

truck was filled with cases of drinks. They arrived at Reynold’s Wholesale

where he parked on the side of the road in front of Reynold’s Wholesale.

He exited the truck and went to the back where the enclosed tray was.

There were 4 sliding doors on each side of the tray. The latch of the sliding

door was accessible while he was standing on the road and so he opened

the second sliding door on the right side of the truck. He held onto the

sliding door and stepped onto a horizontal bar at the bottom of the tray

and climbed onto the ledge of the tray. He said that this was the only way

to access the beverages since the tray was filled to capacity so there was

little standing room. There were ten pallets of beverages in the tray and

the only available space to stand was on the ledge of the tray and he

estimated the available standing space to be 15 feet (approximate length

of the tray) by 8 inches and 3.5 feet above the road. In his witness

statement the Claimant stated that the photograph annexed to the

Defence did not show the part of the truck he accessed the beverages

from.

32. He stated in cross-examination that if he stood on the ground outside the

truck he would not have been able to touch the top cases of the beverages

since the bottom of the truck reached him close to his waist. He said that

he did not think that he should have started tearing the plastic from the

time he was standing on the ground since it was not practical because the

cases of the beverages were stacked higher than his head. He stated that

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he started tearing the plastic off the cases of beverages from the top since

if he had started at the bottom the beverages could have fallen on him due

to movement in transportation. He also testified that there was an initial

tear to the plastic and that it made more sense to pull the plastic up rather

than tearing apart. He stated that when he was standing on the ledge of

the tray of the truck he was facing the pallets with one foot ahead of him

with his back facing the outside. According to the Claimant, one foot was

inside on top the pallet and the other was on the ledge. He further testified

that any effort to stand sideways on the tray in executing the job would

have been dangerous.

33. The Claimant confirmed he was with 2 employees on the date of the

accident, Mr. Beckles and another person. He was handing Mr. Beckles the

beverages off the truck and the other employee was at the back of the

establishment packing the beverages. He agreed he did not bring any of

the employees as witnesses. He said that he never approached the third

employee to give a witness statement because he was not there at the

time the accident occurred and he did not know his name. He said he made

efforts to contact Mr. Beckles but could not find him.

34. The evidence to support the Claimant was from his brother Mr. Richard

Ramdeen who testified that he worked at the Defendant as a

driver/salesman from 2011 to 2014. He said he drove and assisted in

offloading trucks. He explained that the cases of the beverages were stored

in the enclosed tray of the truck. In order to access the cases of beverages

he went into the tray of the truck by holding unto the opened door at the

back of the truck and stepping unto a bar at the bottom of the truck and

climbing unto the ledge which was about 3.5 feet above the level of the

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road. He stated that the space in the tray to stand was about 7 inches, or

less than the size of his foot.

35. He explained that the beverages were in cases of 24 which were covered

in plastic and stacked on top of each other, with the top case about one

foot below the roof of the enclosed tray and the top case was about 7 feet

above the tray. He also explained that the beverages were on pallets and

they were packed from the front of the tray to the back of the tray. There

were about 70 to 80 cases of beverages on the pallets which were then

wrapped in plastic a few times. He stretched his arms up in order to reach

the top case. The tray was divided in half with a centre bar running the

length of the tray. There is no space for a person to fit between the two

halves. There were pallets of products on either side.

36. According to Mr. Ramdeen he had to burst the plastic to remove it from

around the beverages which he did while standing on the ledge at the back

of the truck. He said that when he used his hands to burst the plastic he

stood on the ledge at the back of the truck and he started at the top and

pulled the plastic back using one hand and bracing with the other hand on

the case.

37. Mr. Ramdeen admitted in cross-examination that he did not fall off the tray

of the truck while he was removing the plastic from the cases of beverages

or that he communicated any complaint to the Defendant that he was

having trouble offloading the beverages.

38. The Defendant did not call any witness who was present at the time of the

accident. The Defendant’s witness on this issue was Mr. Shawn Heera who

testified he is the Regional Sales Manager at S.M. Jaleel & Co., the company

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that contracted with the Defendant to deliver the beverages. He stated

that the photograph annexed to the Defence13 showed the same type of

truck used at the time of the accident but it did not show the tray on which

the beverages were stacked.

39. Mr. Heera testified in cross-examination that he first became aware of the

accident in 2018. He stated that the driver’s job included assisting in

offloading the truck. He has offloaded a truck, including in 2014 around the

time of the accident. He agreed that in his witness statement he did not

address standing on the truck or where a driver/salesman would stand up

when offloading the beverages. According to Mr. Heera the beverages are

stacked in the tray of the truck and the person off-loading the truck is

required to stand on the edge of the truck which is about 4 or 5 inches. He

said that the person usually started offloading from the top and the top

case is sometimes above the person’s head. He clarified that the plastic

wrap had to be pulled off to access the cases of the beverages.

40. Mr. Heera also explained in cross-examination that the ledge of the truck

where one stands was approximately higher than the average person’s

waist. He agreed with Counsel that if someone stepped back, he would be

floating in air and he would not be able to put any weight on that leg. He

agreed that standing on the 5 inches of ledge carries a risk and there is the

possibility that someone can fall.

41. I have not made any adverse inference by the Claimant’s failure to call Mr.

Beckles as a witness since it is highly probable that the Claimant may have

lost contact with him and he did not have any contact information for him.

In any event, it appears that Mr. Beckles was an employee of the

13Bundle A page 147

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Defendant and it is more probable that the Defendant would have had the

contact information to call Mr. Beckles as a witness.

42. The evidence of all of the witnesses were that:

(a) The cases of the beverages were stacked about 7 feet high in the

tray of the truck;

(b) To access the beverages a person who was offloading had to stand

on a narrow ledge in the tray which was at a height of

approximately three feet above the ground;

(c) The standing space in the tray was very narrow so that if the

person stepped back he could fall off the tray unto the ground;

(d) To offload the beverages, the plastic wrapped around them had

to be removed;

(e) The beverages were removed from the top to bottom. To do so a

person had to stand in the tray of the truck and reach to the top

which was above his head.

43. In my opinion the filling of the tray of the truck to capacity with the

beverages resulted in the beverages being at a height which was above the

person’s head and with a narrow space for the person to stand. This

resulted in a real risk of danger to anyone who was off-loading the truck

and the risk of danger was increased since the person was also standing at

a height 3 feet above the ground. For these reasons I am not satisfied that

the Defendant undertook a proper risk assessment by filling the truck to

capacity with the beverages.

44. I now turn to the use of a sharp object to unwrap the plastic around the

cases of the beverages.

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The use of a sharp object

45. The Claimant testified that the cases of the beverages on the pallets were

wrapped together with plastic and that it was wrapped several times. In

order to remove a single case, the plastic had to be removed. To do so he

held unto the stack of beverages with his left hand and held the plastic

wrap with his right hand and he pulled the plastic to burst it. He said that

he needed to brace with his left hand because he would have to use some

force to burst the plastic. He testified that the plastic wrap was removed

incrementally at each row so the remaining cases were still secured. After

the top part of the plastic wrap was removed, he was able to pass all of the

cases on the top row and the row just beneath to his co-worker who was

standing below on the ground. He has used this method of unloading the

truck since he started working with the company. According to the

Claimant while he was bursting the plastic wrap to access the third row he

pulled the plastic and it gave way suddenly and he fell off the tray onto the

ground hitting his buttocks, hip, back and hands.

46. The Claimant’s evidence that he used his hands to tear away the plastic

covering was not challenged in cross-examination.

47. Mr. Ramdeen’s evidence was that in order to remove the plastic, he would

have to burst the plastic which is done while standing on the ledge of the

truck. Sometimes he burst the plastic with a knife, sometimes with his

hand. He borrowed a knife from one of the salesmen with him and he also

used his hands when the salesman had no knife. He admitted that the

Defendant never issued them with knives. Mr. Ramdeen stated in cross-

examination that sometimes the plastic was easy to rip and that he did so

without using a knife.

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48. In response to the Statement of Case which stated that the Claimant used

his hands to tear away plastic, Mr. Heera stated that it was standard

operating procedure to use bare hands when unwrapping the plastic from

around the stacks. He testified that knives and/or any sharp objects are

strictly prohibited and bare hands were more than sufficient for

unwrapping the stacks of beverages for delivery. He also stated that gloves

were also not required.

49. In cross-examination, he stated that it was not documented that using

hands when unwrapping the plastic is a standard operating procedure but

he said that everyone knew about the procedure. When referred to the

Defendant’s Defence which stated at paragraph 5 that the Claimant should

have used a sharp object to unwrap the plastic, he said that that was wrong

since they did not cut the plastic. He said the plastic was wrapped just one

or two times and not three or four times.

50. Although the Defendant pleaded that the Claimant failed to use a sharp

object to cut the plastic wrapped around the beverages, there was no

evidence that the Defendant provided such object to the Claimant. The

Claimant and his witness’ evidence was that none was provided. Indeed,

the Defence was contradicted by the Defendant’s own witness Mr. Heera

who testified that it was not standard operating procedure to use any

sharp objects such as knives to cut the plastic. In my opinion Mr. Heera’s

evidence supported the Claimant’s case that the Defendant failed to do a

proper risk assessment by failing to provide a sharp object to the Claimant

to cut the plastic wrapped around the beverages.

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DID THE CLAIMANT CONTRIBUTE TO HIS INJURIES AND IF SO, TO WHAT

DEGREE?

51. The Defendant’s Defence was that the Claimant contributed in whole or in

part to the injuries that he sustained. It was submitted on behalf of the

Defendant that the Claimant had at least a year’s worth of experience at a

very basic task i.e. offloading beverages off the back of the truck which

included climbing on the tray, tearing/ripping the plastic wrap from around

the beverages, lifting the beverages and handing them down to the other

employees, all without incident and that any injury sustained by the

Claimant would have been done so by his own negligence.

52. It was argued on behalf of the Claimant that the Defendant led no evidence

to show that the Claimant’s execution of his job was negligent nor was

there anything in his evidence to suggest that he acted without due care

and attention.

53. In Ian Gonzales v. Scaffolding Manufacturers (Trinidad) Limited & ors14,

the Court set out a brief description on the law relating to contributory

negligence as:

“Contributory negligence means that there has been some act or

omission on the Claimant's part which has materially contributed

to the damage caused and is of such a nature that it may properly

be described as negligence. For these purposes, "negligence" is to

be taken in the sense of careless conduct rather than its technical

meaning involving breach of duty. It means the failure by a person

to use reasonable care for the safety of either himself or his

14 CV2009-03527

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property so that he becomes blameworthy in part as an author of

his own wrong15.”

54. In my opinion, the Defendant failed to demonstrate that there was some

act or omission on the part of the Claimant which caused his injury. The

Defendant’s own witness Mr. Heera corroborated the Claimant’s evidence

that the only practical process which could have been used by the Claimant

to offload the tray of the truck, which was filled to capacity, was to stand

on the narrow ledge of the tray of the truck; remove the top beverages

first and by pulling apart the plastic wrapping given the absence of a cutting

device and the standing room available to him. For these reasons I make

no finding of contribution on the part of the Claimant.

IT THE DEFENDANT WAS RESPONSIBLE FOR THE CLAIMANT’S INJURY,

WHAT QUANTUM OF DAMAGES SHOULD BE AWARDED TO THE

CLAIMANT?

55. The Claimant pleaded loss of special and general damages.

Special Damages

56. The Claimant pleaded special damages for:

Physiotherapy sessions with Kamla Ramdath-Cumming $3400.00

Visits with Dr. Anil Kumar $1350.00

Visit with Dr. Ramcharan $500.00

MRI at Alexandria MR Ltd $8200.00

TOTAL $13,450.00

15 Charlesworth & Percy on Negligence (10th Ed.) @ p.170

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57. Special damages must be particularized and pleaded and they must be

proved by evidence. The degree of proof varies depending on the

circumstances, the nature of the claim, the difficulty or ease with which

proper evidence of value might be obtained and the value of the item

involved16.

58. The sum of $13,450.00 for additional medical expenses which the Claimant

claimed he incurred was supported by receipts and the Defendant did not

challenge the said receipts. As such the sum of $13,450.00 is awarded as

special damages.

General Damages

59. In determining the award for general damages the Court is guided by the

principles in Cornilliac v St Louis 17 namely:

(i) The nature and extent of the injuries suffered;

(ii) The nature and gravity of the resulting physical disability;

(iii) The pain and suffering which had to be endured;

(iv) The loss of amenities suffered; and

(v) The extent to which the plaintiff’s pecuniary prospects have been

materially affected.

Nature and Extent of Injuries Suffered

60. The Claimant pleaded his particulars of injury as follows:

(i) Disc herniation, disc bulge, disc desiccation with various parts

of the back;

(ii) Loss of lumbar lordosis with moderate spondylotic changes;

(iii) End plate depressions and end plate changes;

16 CV 2007-02193 Raghunath Singh & Company Limited v. National Maintenance Training and Security Company Limited 17 (1966) 7 WIR 491

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(iv) Posterior annular tears at various levels;

(v) Narrowing of the spinal canal and bilateral neural foramina;

(vi) Mild inferior migration of disc and mild ligamentum flavum

hypertrophy;

(vii) Spinal stenosis and impingement of nerve roots;

(viii) Slouched posture with decreased lumbar spine extension and

difficulty attaining upright posture, with attempts to do so

exacerbating LBP;

(ix) Pulling sensations contralaterally upon side-bending with

central LBP on rotation;

(x) Increased LBP and referred symptoms on lumbar flexion, right

unilateral stance, knee to chest, right SLR, slump and right

quadrant testing;

(xi) Significant muscle tightness;

(xii) Basic function as well as ability to perform job specific skills

restricted by present symptoms;

(xiii) There was significant tenderness with painful, limited range of

motion;

(xiv) Neck pain which radiates down to upper extremities;

(xv) Assessed as 30% permanent partial disability;

(xvi) The Claimant is a Driver/Salesman by trade and can no longer

lift heavy objects or go on prolonged drives as required when

making deliveries.

61. It was submitted by Counsel for the Defendant that the various medical

reports which were annexed to the Claimant’s witness statement

contained hearsay information and that the Claimant did not produce the

doctors for cross-examination at the trial.

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62. In the agreed Bundle of Documents, the parties agreed to the authenticity

but not the contents of certain reports. The only medical report which the

parties agreed to both the authenticity and the contents was that of Dr.

Godfrey Araujo, Orthopaedic Consultant dated 31 October, 2017.

63. The Claimant filed a hearsay Notice on the 25 April, 2018 whereby the

contents of the following medical reports were admitted into evidence

namely: medical reports from Dr. Anil Kumar, consultant orthopaedic

surgeon dated the 4 November, 2014, 25 November, 2014, and 27 April,

2016; medical reports from Dr. Robert Ramcharan Consultant

Neurosurgery dated 20 May, 2015, 5 April, 2016 and 14 March, 2018; MRI

reports from St. Clair MRI Centre dated 6 September, 2014; MRI reports

for the left shoulder, right shoulder and cervical spine from Alexandra MRI

Limited all dated 15 March 2016; and reports from physiotherapist Kamla

Ramdath-Cumming dated 13 October, 2014, 14 January, 2015 and 31

January, 2015.

64. Therefore, it was left up to the Court to determine the weight to attach to

the aforesaid reports. In the absence of any medical evidence led by the

Defendant to challenge the findings of the aforesaid reports I attached

significant weight to them.

65. The first MRI Scan dated September, 2014 reported the following:

a. Loss of lumbar lordosis with moderate spondylotic changes. Small

end plate depressions and type I/II end plate changes are seen in

the contiguous end plates at L3-4 to L5-S1 levels.

b. Disc desiccation with decrease in disc height and posterior

annular tear at L3-4, L4-5 and L5-S1 levels.

Page 22 of 41

c. L3-4 level: There is diffuse disc bulge causing mild narrowing of

spinal canal and bilateral neural foramina.

d. Lumbar L4-L5 level posterior disc herniation, spinal stenosis and

impingement of bilateral L5 nerve impingement due to narrowing

of bilateral neural foramina and lumbar sacral;

e. L5-S1 posterior para-central disc herniation, spinal stenosis and

impingement of bilateral S1 nerve root.

66. Dr, Kumar in his report dated 25 November, 2014 stated that “disc

herniation may or may not progress as he gets older due to aging leading

to spondylosis and instability of the spina segment causing more

disability,”

67. Three years later Dr. Araujo’s report18 diagnosed the Claimant as having:

cervical disc disease, cervical muscle spasm, right rotator cuff tendinitis

and lumbar disc disease.” Dr. Araujo also reported mild degenerative

changes in the cervical spine, disc bulge at C4-C5, C5-C6 and C6-C7 causing

mild mass effect over the dural sac with mildly compromised neural

foramina bilaterally. In the right shoulder; minimal sub-coracoid bursal

fluid indicating bursitis. In the left shoulder; sub-coracoid bursitis, mass

effect over supraspinatus tendon and mild arthritis at the acromio-

calvicular joint. Dr. Araujo concluded that “Post traumatic disc bulges were

caused by the fall and his general cervical and lumbar spondylosis would

have been aggravated as well by the incident.”

68. In essence the Claimant was diagnosed with lumber spondylosis with L4-

L5 and L5-SI degenerate discs’ disease as well as cervical spondylosis with

C5-C6 and C6-C7 degenerate disc disease.

18 Trial Bundle B at page 145

Page 23 of 41

Nature and gravity of the resulting physical disability

69. Dr. Kumar assessed the Claimant’s permanent partial disability on the 27

April, 2016 at 30%. In October 2017 Dr. Araujo stated in his medical report

that:

“Mr. Bissoon is severely limited in his effort tolerance for sitting and

as such in addition to his inability to lift loads of any weight as the

pain engendered by simple activities like sweeping means that he

would only be suitable for a very light posting that did not require

any of those activities and which would allow him breaks to stretch

his back or to lie down if the pain became severe. I cannot give more

guidance than that to his possible employment scope as there are

very few jobs (if any) which would entertain these parameters.”

70. The Claimant testified that he felt pain during his physiotherapy sessions

and medical appointments. He stated that bending, sitting or standing or

periods greater than 15 minutes caused him pain and discomfort. He has

not been able to lift heavy objects or go on prolonged drives. He has great

difficulty in playing with and caring for his grandchildren and doing

household chores. He can now sit for 20 minutes but standing or walking

for more than 15 minutes is painful and uncomfortable and he feels pain if

he lifts light loads. He continues to feel the effects of his injuries today. He

cannot perform any jobs that require prolonged sitting, standing or

walking or the lifting of loads. He needs frequent rest. In cross-examination

the Claimant stated that the physiotherapy assisted in relieving his pain

but he stopped in June, 2016.

Pain and suffering which had to be endured

71. The Claimant pleaded pain to his thighs, needles to calf at rest with

increased symptoms on bending and sitting for periods greater than 10

Page 24 of 41

minutes, standing, walking and attempting lifting and decreased

symptoms when lying. At the time of the fall the Claimant experienced

excruciating pain and is still to this date suffering from the effect of the

injury sustained.

72. Pain is subjective and it will depend on all the circumstances of the case.

The Claimant testified that he felt excruciating pain when he fell. He said

that he called a supervisor to send a driver for the truck but since there

was no replacement driver, he drove the truck from D’Abadie to Endeavour

while in intense pain. Thereafter, he used public transport to take him

home to Cunupia because no transportation was provided by the

Defendant. During the course of his medical treatment two epidural

injections were administered to him for the pain in 2014 and 2015. He also

testified that he feels pain and discomfort in his neck, shoulders, muscle

tightness, pain in his arms, thigh, hip and back up to the date of the trial.

73. During cross-examination, the Claimant stated that he stopped attending

doctors because he ran out of finances and that he was still taking

medication for his pain. He also admitted that he stopped the

physiotherapy in 2016.

Loss of amenities suffered

74. The Claimant testified that he has great difficulty in playing with and caring

for his grandchildren and doing household chores.

Extent to which his pecuniary prospects have been affected

75. The Claimant testified that at the date of the accident his monthly salary

was $4,329.48 and that he was terminated from his employment on 26

February, 2016. He said that prior to his injury he sold fruits at the Port of

Page 25 of 41

Spain Central Market on Saturdays and Sundays from 2010 and his monthly

profits was an average of $2,000.00 but after his injury he has not been

able to work in the market.

Analysis of the evidence

76. In analysing the evidence, I have considered the following factors in

arriving at an award of damages for the injuries sustained by the Claimant:

(a) The Claimant was diagnosed by Dr, Kumar in November, 2014

with having tenderness over the lower lumbar spine with painful

limited range of motion of the lumber spine. He was referred to

physiotherapy and given 2 epidural injections for pain. Dr. Robert

Ramcharan, Consultant in neurosurgery in April, 2016

recommended physiotherapy for his neck and lower back. I have

noted that although in May 2015 Dr. Ramcharan had

recommended surgery if the pain continued, in April, 2016 no

such recommendation was made which caused me to conclude

that there was no significant deterioration to cause a

recommendation for surgery.

(b) Dr. Kumar’s assessment of 30% permanent partial disability for

the Claimant as a whole body assessment was not helpful in

assessing damages since as Kangaloo JA said in Persad v

Seepersad19 “an explanation of the effect of injuries on a

person’s earning capacity in words as opposed to figures would

be greater use to the Courts in their assessment of damages at

common law.”

(c) I accept that the Claimant suffered pain in the region of his lower

back and shoulders buttocks when he fell and that his pain

continued to the extent that he was given epidural injections

19 Civil Appeal No 136 and 137 of 2000

Page 26 of 41

during the course of his treatment to ease the pain. However, if

the Claimant was in the extent of pain which he alleged he would

have continued to attend physiotherapy, since he said that it

assisted him with alleviating his pain, even from a public health

institution but there was no evidence that he made any such

enquiries. Further, there was no evidence on the type of

medication he was still using to alleviate his pain. I was of the

opinion that the Claimant’s pain was not as unbearable as he

made it out to be.

(d) There was no evidence that the Claimant’s life expectancy has

been affected. The impact of the injury on the Claimant’s daily

activities was difficulty in sitting for long periods i.e. greater than

20 minutes, playing with his grandchildren, lifting objects and

doing household chores. I have attached significant weight to the

inability to do these activities since they were critical in the

Claimant performing his job and his assisting at home. I have

concluded that the Claimant’s loss of amenities was significant.

77. In determining the award of general damages, other similar cases are also

guidelines for the possible range of an award of damages20. The Claimant

submitted that the Court should consider the awards made in the local

cases of Choon v Industrial Plant Services Ltd21 and Evans Moreau v Port

Authority of Trinidad and Tobago22 . The Defendant submitted the more

appropriate awards are in Lennard Garcia v PLIPDECO Ltd23; Gillian

Roxanne Isaac v Shaun Solomon and anor24; Marcel Benjamin v Lennox

20 Aziz Ahamad v Raghubar (1967) 12 WIR 352 21 CV 2006-00574 22 CV 2006-03958 23 CV 2010-03061 24 CV 2007-04400

Page 27 of 41

Petroleum Services25; Ramesh Sam v Tropical Power Limited26 and Dexter

Sobers v the Attorney General of Trinidad and Tobago27.

78. The authorities referred to by both the Claimant and the Defendant were

all considered in the most recent authorities of Lennard Garcia, Darryl

Abraham and Marcel Benjamin. In my opinion, these cases are relevant in

considering an award for general damages in the instant matter.

79. Lennard Garcia was a decision in September, 2013. In Lennard Garcia, the

Plaintiff was a 60-year-old retired Terminal Worker who slipped and fell on

oil spilled onto the floor at the Defendant workplace thereby sustaining

soft tissue injuries to the lower back, right shoulder and right knee;

persistent right-sided sciatica and degenerative spinal stenosis at L4-5 and

L5-S1 levels.

80. Dr. Gentle testified that the Plaintiff was diagnosed with lumbar

spondylosis that “this was pre-existing and may have been aggravated by

his fall. He stated further that spondylosis occurs with aging in every human

being and/or is consistent with degenerative changes.” The medical report

pointed to challenges by the Plaintiff with walking, sitting and standing but

not to the extent to which this has impacted on his enjoyment of

recreational activities or his family life. This lack of evidence was taken to

mean that any loss of amenities sustained by the Claimant was either non-

existent or insignificant. Master Alexander awarded general damages in

the sum of $56,000.00 (being 70% of $80,000.00) with interest at a rate of

9% per annum from 21st July 2010 to 19th September, 2013. This award

updated to January, 2015 is $88,730.77.

25 CV 2011-02393 26 CV 2008-03126 27 CV 2008-04393

Page 28 of 41

81. Darryl Abraham was delivered one week after Lennard Garcia. In Darryl

Abraham the claimant’s injuries were nerve root irritation, nerve root

compression, lumbosacral spasm with decreased range of movement,

absent hamstring jerk, decreased ankle reflex, diminished sensation

bilateral L5 dermatome, weakness of right ankle dorsiflexion, moderate

spondylotic changes, osteophtic lipping L4-5, mild diffuse annular disk

bulge at L3-4, mild left neural foramina stenosis, nerve roots irritation L3-

4 and L4-5, diffuse annular disk bulge with focal disc protrusions at L4-5.

82. The court considered that the claimant had injuries to more than one disc

and that there were additional injuries to the ankle resulting in a wider

gamete of injury. The court awarded $130,000.00 (before deductions for

contributory negligence) in September, 2013. This sum adjusted to present

is $156,086.47.

83. Marcel Benjamin’s award was given in April, 2014. In that case, the Plaintiff

claimed damages for personal injuries and consequential loss arising from

an accident on 9 February, 2009 when he was struck by an “elevator horn.”

A medical report said that the findings continued to be consistent with

cervical and lumbar nerve root irritation secondary to neck and low back

strain on spondylosis. Surgery for anterior cervical fusion and Plating and

Lumbar Laminectomy with L4/5 and L5/S1 Discectomies are advised.

Permanent Partial Disability of 60% was assessed. The Court awarded

$90,000.00 for general damages for pain and suffering and loss of

amenities on the 17 April, 2014.

84. In my opinion, the injuries in Lennard Garcia and Darryl Abraham were

more severe than the injuries suffered by the Claimant in the instant case.

In my opinion the Claimant’s injuries are more in line with the injuries in

Page 29 of 41

Marcel Benjamin where in 2014 the Court awarded $90,000.00. Given

that this award is being made almost 5 years after Marcel Benjamin in my

opinion, an appropriate award for the Claimant’s general damages is

$100,000.00.

Cost of future care

85. The Claimant pleaded the sum of $10,000.00 for the costs of future care.

In the medical report by Dr. Ramcharan dated 14 March, 2018, Dr.

Ramcharan recommended that the Claimant continue physiotherapy for

an indefinite amount of time. He suggested that epidural steroid injections

would assist in relieving acute pain. He did not recommend surgery at that

time since he was of the view that further MRI scans of the cervical and

lumbar spine to assess any change in the Claimant’s condition should be

done.

86. The Claimant testified that he paid the sum of $200.00 for each therapy

session with Ms. Kamla Ramdath-Cummings. Given that the Claimant has

only pleaded a sum for 50 sessions of physiotherapy I am minded to make

this award since Dr. Ramcharan’s recommendation was for an indefinite

period.

87. In the closing submissions, Counsel for the Claimant submitted that the

Court also award sums for repeat MRI scans in the sum of $12,000.00 to

further assess changes to the Claimant and the costs for two epidural

injections in the sum of $19,000.00. I have decided not to make any order

for those awards since this was never part of the pleaded case for the

Defendant to meet and to do so now would be unfair to the Defendant.

Page 30 of 41

Loss of future earnings

88. The Claimant pleaded the sum of $415,630.08 as future loss of earnings as

a Driver/Salesman from 29 February, 2016 at $4329.48/month; multiplier

8 and future loss of earnings in the sum of $288,000.00 from market

vendor work from 18 July 2014 at $2000/month; multiplier 12.

89. Mc Gregor on Damages28 at paragraph 3-005 referred to the learning by

Lord Goddard in British Transport Commission v Gourley29 who stated

that:

“In an action for personal injuries the damages are always divided

into two main parts. First there is what is referred to as special

damages, which has to be specially pleaded and proved. This

consist of out-of-pocket expenses and loss of earnings incurred

down to the date of trial, and is generally capable of substantially

exact calculation. Secondly, there is general damage which the law

implies and is not specially pleaded. This includes compensation for

pain and suffering and the like, and, if the injuries suffered are such

as to lead to continuing or permanent disability, compensation for

loss of earning power in the future.”

90. The Claimant did not separate his pleading for loss of earnings into past

loss of earnings for the period of injury until trial as special damages.

Instead, he made the fundamental flaw of lumping the entire claim for his

loss of earnings i.e. past and future into one claim as loss of future

earnings.

28 20th ed 29 [1956] AC 185 at 206

Page 31 of 41

91. It was submitted on behalf of the Claimant that although the pleading for

loss of future earnings was inelegant the Defendant was put on notice that

this was the case it had to meet.

92. In my opinion, this was not an inelegant pleading but it was deficient since

different requirements in law apply to a personal injuries claim for special

damages (i.e. past loss of earnings) and general damages (i.e. future loss

of earnings). In particular, the past loss of earnings must be specially

pleaded and proved and the future loss of earnings the

multiplier/multiplicand or lump sum rule apply.

93. Therefore, the failure to plead the past loss of earnings as special damages

means that this aspect of the claim must fail. As a consequence, in

determining the loss of future earnings I will only consider the period of

loss from the trial and not pre- trial.

94. In Munroe Thomas30 Kangaloo JA drew a distinction between loss of future

earnings and loss of earning capacity. An award for loss of earning capacity

as stated by Browne LJ in Moeliker v A Reyrolle and Co. Ltd31 only arises

where the claimant is employed at the date of the trial but there is a

substantial or real risk that he may lose this employment at some future

time and may as a result of the injury be at a disadvantage in getting

another job or an equally well paid job.

95. In the instant case, the Claimant’s evidence was that he was not employed

at the date of the hearing of the trial. In the circumstances, since the first

condition in Moeliker has not been satisfied I will now consider if an award

for loss of future earnings can be made.

30 Civ Appeal 25 of 2007 31[1977] 1 WLR 132

Page 32 of 41

96. An award for loss of future earnings can be made if the Claimant

demonstrates that there is a continuing loss of earnings which is

attributable to the accident32. Where there are evidential uncertainties

which prevent a court from using the multiplier/multiplicand method to

assess damages for loss of future earnings the courts have disregarded this

conventional approach and arrived at a lump sum figure to compensate

the Claimant for the future loss of earnings (Blamire v South Cumbria

Health Authority)33.

97. In order to prove loss of future earnings the Claimant has to show that the

injury was of such a nature that it rendered him incapable of performing

his duties as a truck driver and from selling produce at the central market,

or any other form of work whatsoever. If it rendered him incapable of

performing as a truck driver or selling produce at the central market but it

did not prevent him from doing other work, it was necessary to show that

he took steps to mitigate the loss. In discharging this onus, the medical

evidence as to the nature of the injury and the residual effect that the

injury may have had on the Claimant’s ability to work is critical34.

98. In the medical report of Dr. Araujo which was agreed upon by both parties,

Dr. Araujo indicated that:

“Mr. Bissoon is severely limited in his effort tolerance for sitting

and as such in addition to his inability to lift loads of any weight as

the pain engendered by simple activities like sweeping means that

he would only be suitable for a very light posting that did not

require any of those activities and which would allow him breaks

to stretch his back or to lie down if the pain became severe. I cannot

32 Civ Appeal 25/2007 Munroe Thomas v Malachi Forde and ors. 33 (1993)P.I.Q.R.Q1,C.A 34 CV A 110/2001 Seudath Parahoo v SM Jaleel & Co Ltd, Hamel-Smith JA at para. 8

Page 33 of 41

give more guidance than that to his possible employment scope as

there are very few jobs (if any) which would entertain these

parameters.”

99. No evidence was led by the Defendant to challenge this finding. There was

also no evidence by the Defendant of alternative jobs which the Claimant

could have done or performed given Dr. Araujo’s medical assessment. In

those circumstances I am of the opinion that there was little the Claimant

could do in mitigating his loss since there was no evidence of any

alternative jobs which he could have done given his medical condition.

Driver/Salesman

100. It was not in dispute that: the Defendant terminated the Claimant on the

29 February, 2016; his monthly income as a truck driver was $4,329.48 and

at the time of the trial the Claimant was 52 years 10 months old.

101. Counsel for the Claimant submitted that a fair multiplicand is the sum of

$51,953.76 ($4329.48 x 12). It was submitted also that the Claimant’s

yearly income was less than $72,000.00 per annum which is exempted

from paying income taxes. As such the 25% deduction on account of taxes,

holidays and other life contingencies are not applicable.

102. Counsel for the Defendant argued that if the Court is minded to grant an

award for loss of future earnings, the multiplicand should be the sum of

$38,965.32 since the Claimant’s monthly salary was $4329.48 with a

deduction of 25% for taxes and life’s contingencies. Counsel for the

Defendant also submitted that based on the learning in the Court of Appeal

decision of PTSC V Nerahoo Sookhoo35 the Claimant was paid Workmen’s

Compensation in the sum of $9,322.00 and the sum of $53,012.14 has

35 Civ Appeal No 21 of 1993

Page 34 of 41

been deposited with the Registrar of the Supreme Court as such the said

sums should be deducted in the award for future loss of earnings.

103. According to Mc Gregor on Damages36 the starting point in the calculation

of the multiplicand has long been the amount earned by the Claimant

before the injury. From this is deducted the amount the Claimant is

capable of earning in the future; if the injury has brought total incapacity,

then nothing falls to be deducted. Then a deduction is made for national

insurance contributions and income tax.

104. There was no evidence that the total annual income of the Claimant was

exempt or will be exempt from taxation in the future. In any event this is

not the only factor which the Court must consider in reducing the

multiplicand. In my opinion a 25% reduction of the annual income of the

Claimant at the time of the accident is a fair multiplicand since it takes into

account national insurance deductions and other statutory deductions. I

therefore set the multiplicand at $38,965.32.

105. I now turn to the multiplier. According to Mc Gregor on Damages at

paragraph 40-102 the starting point in the calculation of the multiplier is

the number of years that it is anticipated the Claimant’s disability will last

and the calculation falls to be made as from the date of the trial. In addition

to the discount because the award is by way of a lump sum, it is common

practice for the Courts to make a further discount on account of the

general contingencies of life; or as they are called the vicissitudes of life. It

is said that the multiplier must suffer some reduction to cater for the

possibility that the Claimant will die earlier than expected, the possibility

that he will meet with some accident that will keep him out of work for a

lengthy period or even result in his premature retirement, the possibility

36 20th ed at paragraph s 40-075 and 40-076

Page 35 of 41

that he may lose his job and become temporarily or even permanently

unemployed and the like.

106. With respect to the multiplier, Counsel for the Claimant submitted that at

the date of the trial the Claimant was 52 years 10 months, therefore an

appropriate multiplier is 6.

107. Counsel for the Defendant submitted a multiplier of 4 on the basis at the

time of the trial the Claimant was approximately 53 years and he may have

worked until the normal age of retirement of 60 years.

108. There was no evidence of the retirement age for a truck driver but it was

not disputed by the parties that it was reasonable to use 60 years as the

retirement age. In Dyial Latchman v Balgobin Sons & Bandsawmilling

Company Limited37, the Court applied a multiplier of 3 for the Claimant

who was a 50 year old cable man at the time of the assessment of

damages. In Dave Leon Moore v Dexter Lewis and the Ag of Trinidad and

Tobago38 the Claimant, was 52 years at the time of the trial and a multiplier

of 6 was applied and in Gerard Antrobus v Port Authority of Trinidad and

Tobago39 the Claimant, was 51 years at the time of the trial and a multiplier

of 2 was applied. In Marcel Benjamin v Lennox Petroleum Services

Limited40 the Claimant was 52 years at the time of the trial and a multiplier

of 2.5 was applied.

109. In the instant case the Claimant was approximately 53 years old at the time

of the trial and all things being equal he had 7 more years to work as a

truck driver. In my opinion a reasonable multiplier is 5.

37 CV 2007-02060 38 CV 2009-00988 39 CV2009-00726 40 CV 2011-02393

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110. Therefore, I award the sum of $194,826.60 (i.e. $38,965.32x5) as the

Claimant’s loss of future earnings as truck driver.

Market Vendor

111. I now turn to the claim for loss of future earnings as a market vendor. The

Claimant testified that he sold fruits in the Port of Spain Central Market on

Saturdays and Sundays. Before working for the Defendant, he sold

wholesale during the week and retail on the weekend. He purchased

watermelon from Richard Agostini. He was supposed to supply Gail Sayres

with citrus on the week of the accident. Earlier in the month his brother,

Richard Ramdeen provided transport for him to the Central Market. He

earned an average of $2000.00 monthly, sometimes more and he has not

worked at the market since his injury.

112. In cross-examination, the Claimant admitted that from 2013 he had about

8 wholesale customers. He did not have a ledger or record of his sales

because he sold his products directly to customers at the market. He

testified that Ms. Sayres purchased almost all year from him, but not

necessarily the same amount every time. He admitted that orders were

not in writing and that as a market vendor he did not pay income tax or fill

out any income tax returns. He agreed that there was no documentation

to determine how much he earned at the market.

113. Richard Agostini testified that he is a wholesale and retail vendor of fruits

who has been selling for 15 years at the Port of Spain Central Market. He

testified that on weekends he makes on average profit of $3500.00 on

retail sales. He said that he sold fruits to the Claimant at wholesale prices

and he has known the Claimant to be selling at the Port of Spain Central

Market for the past 10 years.

Page 37 of 41

114. He confirmed in cross-examination that he had a business relationship with

the Claimant. He said that he either called or met the Claimant to place an

order, but that there was nothing in writing. He indicated that at the

market the vendors did not provide receipts. He also stated that the

Claimant had a truck and a bus and the Claimant sold his produce out of a

tent at the market.

115. Gaily Sayres testified that she is a retail vendor of fruits and she has been

selling same for 20 years at Independence Square, Port of Spain. She

testified that on a weekend she makes on average, retail profits of

$4000.00. She has been purchasing citrus from the Claimant for about 10

to 15 years in the Central Market Port of Spain. She spent about $2000.00

per weekend purchasing citrus from the Claimant. She made an order from

the Claimant for the supply of fruits to be collected on 19 July, 2014 but he

was not there.

116. She confirmed in cross-examination that she has been buying fruits from

the Claimant for about 10-15 years. She indicated that no receipts were

provided to show her purchases from the Claimant and she did not have

any documentation to prove what was stated in her witness statement.

She said the Claimant sold his fruits from a white tent and a white van.

117. Counsel for the Claimant submitted that the Claimant ought to be

compensated for loss of future earnings as a market vendor. Counsel

argued that the Claimant’s monthly income as a market vendor was

approximately $2000.00. Therefore, a reasonable multiplicand is

$24,000.00. Counsel submitted that since there is no fixed age of

retirement for a market vendor an appropriate multiplier is 9.

Page 38 of 41

118. With respect to the Claimant’s claim for loss of future earnings as a market

vendor, Counsel for the Defendant argued that even if the Court was to

accept that the Claimant was a market vendor, he should not be

compensated under this head since he has not provided any evidence that

that he made the income he alleged.

119. I accept that the Claimant was a market vendor on the weekends since this

aspect of his evidence was unchallenged and was corroborated by his 2

witnesses Ms. Gail Sayres and Mr. Richard Agostini.

120. My challenge was accepting the Claimant’s evidence that he earned

approximately $2,000.00 per month in profit in the absence of any type of

corroborating evidence. He did not call any of his children whom he said

assisted him as witnesses to corroborate this sum. As a market vendor it

would have been highly unusual to have receipts, ledges or any type of

written records of the volume of his sales. It is also very probable that

since the nature of his business was in cash, his profits of $2000.00 per

month was also in cash which he would have put back into his business or

used to fund his family expenses. In this regard, it was most probable that

he did not deposit this sum into his bank account so bank records and

income tax returns would not have assisted.

121. The evidence from Ms. Sayres that she purchased fruits from the Claimant

each weekend in the sum of $2000.00 did not mean that this was his profit.

Also Mr. Agositini’s evidence that he earned retail profits of $3,500.00 on

weekend sales did not assist the Claimant since there was no evidence that

the Claimant’s sales were the same volume as Mr. Agostini’s.

Page 39 of 41

122. For these reasons, although I have been persuaded that the Claimant was

a market vendor on the weekends before the accident, in the absence of

any corroboration I am unable to accept that his monthly profit was

$2,000.00. In my opinion, there is a danger in only accepting this self-

serving evidence of the Claimant in circumstances where he could have

brought his children who assisted him in the market to give evidence to

support his claim. Based on this evidential deficiency I am unable to make

any award for the loss of earnings as a market vendor.

INTEREST

123. The award of interest on damages is discretionary pursuant to section 25

of the Supreme Court of Judicature Act41. The Court of Appeal in The

Attorney General of Trinidad and Tobago v. Fitzroy Brown et al42 reduced

interest awarded for false imprisonment, where allegations of assault were

made, at the rate which is payable on money in court placed on a short

term investment account. As such, bearing in mind that monies are placed

in the Unit Trust account and since this was not a case where the

commercial lending rates was applicable the Court of Appeal reduced the

interest awarded from 9% to 2.5% per annum.

CONCLUSION

124. The Claimant has failed to prove that off-loading the beverages from the

tray was a complex task which required supervision or training. He

therefore failed to prove that the Defendant did not provide a safe place

of work due to a lack of training. The Claimant has however successfully

proven that the Defendant failed to undertake a proper risk assessment by

having the truck filled to capacity with the beverages and by failing to

41 Chapter 4:01 42 CA 251 of 2012

Page 40 of 41

provide a sharp object to the Claimant to cut the plastic wrapped around

the beverages. For these reasons I have found that the Defendant was

negligent and liable for the Claimant’s injury.

125. I make no finding of contributory negligence on the part of the Claimant

since the Defendant failed to prove that the Claimant’s action contributed

to his injuries.

126. I have awarded the sum of $13,450.00 special damages since the claim was

supported by receipts and the Defendant did not challenge the said

receipts.

127. I award the sum of $100,000.00 as general damages and the sum of

$10,000.00 as the cost of future care. I have awarded the sum of

$194,826.60 as loss of future earnings as a driver/salesman. The sums of

$9,322.00 and $53,012.14 as Workmen’s Compensation are to be

deducted from the award for loss of future earnings as a driver/salesman.

No award is made for loss of future earnings as a market vendor since I was

of the view that the Claimant’s evidence that his net monthly income of

$2,000.00 was self-serving and not corroborated by any of his witnesses.

ORDER

128. Judgment for the Claimant.

129. The Defendant to pay the Claimant the following:

(a) Special damages in the sum of $ 13,450.00. Interest on the special

damages at the rate of 2.5% per annum from the date of the

accident i.e. 18 July 2014 to the date of judgment.

(b) General damages in the sum of $100,000.00. Interest on general

damages in the sum of 2.5% per annum from the date of service

of the Claim Form i.e. 27 September 2016 to the date of judgment.

Page 41 of 41

(c) Cost of future care in the sum of $10,000.00.

(d) Loss of future earnings as a driver/salesman in the sum of

$194,826.60 (less the sum as Workmen’s Compensation of

$9,322.00 and $53,012.14).

(e) Prescribed costs in the sum of $53,327.66.

………………………………..…………

Margaret Y Mohammed

Judge