BEFORE THE HONOURABLE MADAM JUSTICE DEAN-ARMORER...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2010-02701

BETWEEN

PAUL HARRADAN Claimant

AND

YORKE STRUCTURES LIMITED Defendant

BEFORE THE HONOURABLE MADAM JUSTICE DEAN-ARMORER

APPEARANCES

Mr. Simon de la Bastide, Attorney-at-law for the Claimant

Mr. Mervyn Campbell, Attorney-at-law for the Defendant

JUDGMENT

Introduction

1. In June, 1986, the claimant had been an employee of the defendant. In the course

of his employment, the claimant suffered injury to his back and by these

proceedings, the claimant seeks damages for personal injuries arising out of an

alleged breach of his employer’s duty to provide a safe system of work. In the

course of this judgment, the Court considered the extent of the employer’s duty to

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provide instructions to employees as to safe techniques in the performance of their

work. The Court also considered what would be an appropriate quantum of

damages.

Procedural History

2. By his Claim Form and Statement of Case filed on the 29th

June, 2010, the claimant

sought damages for personal injuries arising out of an incident, which occurred at

the defendant’s compound.

3. A Statement of Defence was filed on the 18th

September, 2010, and amended

pursuant to an order of the Court on the 17th

December, 2010.

Evidence

4. At trial, the Court heard the evidence of two (2) witnesses on behalf of the

claimant: the claimant himself and Esequel Gallan. Mr. Eshwar Dulchan, who had

signed a witness statement, on behalf of the claimant, failed to appear at the trial.

His witness statement was accordingly struck out. The defendant relied on the

testimony of only one witness, Roger Fermin, Production Manager of the defendant

company.

Evidence of the Claimant

5. Mr. Harradan told the Court that he had worked at the defendant’s company as a

fabricator since the year 19731. The claimant also told the Court that the defendant

had been engaged in the business of structural engineering works and in particular

1 Para. 3 of the Witness Statement of the Claimant

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the design, fabrication, supply and creation of steel structures and other structural

components2.

6. The claimant stated that he was a fabricator/checker which was a more senior

position than steel fabricator. He set out his duties as being:

(i) Supervision of fabrication layouts on the shop floor and work bench.

(ii) Supervision during fabrication of the structural items on the shop

floor and work bench.

(iii) Registration of fabricated items.

(iv) Liaising with the Drawings Office when changes are to be made to

drawings…

(v) Inspection, reporting, supervision of correcting structural work when

same are not in accordance with workshop fabrications drawings…

(vi) To take directions and assignments from the Factory

supervisor/manager…3

7. The claimant related the events of the 29th

June, 2006, and stated that around 10:00

a.m. on that day, he was approached by “Chris”, who was the Atlantic LNG

Checker. Chris told the claimant that he had noticed an error in the fabrication of

one of the angle braces.

8. The claimant accompanied Chris to the relevant area of the factory, inspected the

brace and identified this flaw in it. The claimant was of the view that one of the

plates had been incorrectly positioned and had to be cut off and replaced.

2 Para. 2 of the Witness Statement of the Claimant

3 Para. 4 of the Witness Statement of Paul Harradan

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9. Mr. Harradan reported his findings to his supervisor, Mr. Roger Fermin, who

instructed the claimant to tell Eshwar Dulchan to undertake the repair work which

would involve cutting and welding. Mr. Fermin further instructed the claimant to

stay with Dulchan and to assist him.

10. The claimant complied and remained with Mr. Dulchan at the work bench. In his

witness statement, the claimant described the work bench as being made up of a

steel “I” beam with legs about two feet above the ground, the claimant stated that a

fabricated piece, when placed on top of a work bench, would usually be at the

height of the fabricator’s waist or just below.

11. The claimant stated that Dulchan cut off the incorrectly positioned plate and then

called to the claimant indicating that he was ready to have the brace turned on its

other side. The claimant stated that he and Mr. Dulchan coordinated with each

other and turned the angle brace in a “flipping motion”

12. The claimant stated that he was wearing a harness type brace which he had

purchased with his own money and safety gloves, which had been provided by the

Company.

13. The claimant continued his narrative by stating that after turning the angle brace, he

bent over to make an inspection. It was then that he felt a sharp pain in his back

and was unable at first to straighten his back into an upright position.

14. The claimant complained to Mr. Fermin, who supplied him with a document which

would entitle him to receive medical attention from the company’s doctor, Dr.

David Ali.

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15. The claimant denied that the company had displayed any document entitled

“Lifting Basics Instructions”. The claimant also denied that the company provided

any lifting instructions by any supervisor.

16. The claimant distinguished between lifting and turning a brace. He stated that the

estimated weight of the brace was seventy-five pounds to ninety-five pounds (75

lbs - 95 lbs) and that he, the claimant, would not try to lift it on his own, but would

use the overhead crane lift.

17. The claimant stated that he had on numerous occasions turned over light weight

items, that is, those weighing less than one hundred pounds (100 lbs) and that in so

doing he would exercise his own judgment and that he had never been told by any

company supervisor that so doing would be dangerous.

18. The claimant set out the events that followed his injury, culminating in his

termination from his employment on the grounds of medical incapacity.

19. The claimant was cross-examined by learned attorney-at-law, Mr. Mervyn

Campbell. Under cross-examination, the claimant stated that he was aware of the

crane and the slinger and stated that he was required to use them to “load and off

load”, “to move and to turn”

20. The claimant explained that by the word “turn”, he meant the process whereby the

slinger ties the iron onto the chain and the operator of the crane lifts the iron. For

this exercise, according to the claimant, there was a need for one slinger and one

crane operator.

21. The claimant admitted that he could call on a crane operator and slinger when

turning the iron or taking it from one side to the next.

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22. Under cross-examination, the claimant admitted that it was not his job to do

turning. He stated that he was a fabricator/checker and in that capacity, he was

required to supervise fabrication, inspect it and to take directions from the

supervisor/manager. The claimant denied however that if something had to be

turned, the crane and slinger should be involved. The claimant volunteered that

where small items were involved workers supplied manual labour.

23. The claimant denied that the proper procedure required that he assign a worker to

do the turning. The claimant volunteered that if small items were involved, he

would do the turning himself and that he was accustomed to so doing. The

claimant admitted that as supervisor, he took it upon himself to act as a worker.

24. The claimant stated that he regarded seventy pounds to one hundred pounds (70 lbs

- 100 lbs) as light weight and at that weight he was prepared to turn it himself.

25. The claimant stated that he and Mr. Dulchan estimated that they could turn the

brace together. The claimant stated that if the item exceeds one hundred pounds

(100 lbs) they would have used the crane and that if it was less than one hundred

pounds (100 lbs), they would do it themselves. The claimant said that when lifting,

he would never attach anything less than one hundred pounds (100 lbs) to the crane.

Distinguishing between turning and lifting, the claimant stated that he would

engage the assistance of the crane, when lifting.

26. The claimant relied, as well, on the evidence of co-worker Esequel Gallan, who

testified that he had been an employee of the defendant company between 1991 and

2007. Referring to the document which was attached to the defence herein and

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which was entitled “Yorke Structures Limited Lifting Basic Techniques for Safe

Lifting…”, Mr. Gallan stated that he never saw this document.

27. Mr. Gallan denied that he ever received formal instructions with regard to lifting

loads, stating that he learnt lifting techniques “from older more experienced

workers…” on joining the Company.

28. Mr. Gallan stated that during this period of employment with the Company, there

were times when cranes were not functional, and that it was normal that small

pieces of metal fabrications would be turned manually by fabricators, checkers and

other workers. Mr. Gallan stated further that very few pieces of safety equipment

were provided by the defendant/company.

29. Mr. Gallan was cross-examined. He admitted that he was not present when the

incident occurred and could not say what took place.

30. Under cross-examination, Mr. Gallan told the Court that he was aware of the

slingers and the crane and stated that these together were the system employed to

move heavy loads consisting of fifteen to twenty feet (15 - 20 ft) of iron.

31. Mr. Gallan stated that in order to use the crane, a piece of iron should be eight

hundred or seven hundred pounds (800/700 lbs). He stated further that two men

could turn a five hundred pounds (500 lbs) piece of iron.

32. Roger Fermin, Assistant Production Manager testified on behalf of the Company.

This witness stated that he had been employed with the Company for eighteen (18)

years and that, as assistant production manager, he was required to oversee the

production process within the workshop area.

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33. Mr. Fermin stated that daily he would walk through the workshop and counsel

workers, exhorting them to be safe.

34. Mr. Fermin stated that in 2003, the Company issued a safety lifting techniques

flyer. The flyer was put onto a notice board in the workshop. The flyer was

annexed to the witness statement of Mr. Fermin and marked “RF1”.

35. Mr. Fermin told the Court that as a checker, Mr. Harradan was not required to lift

or turn pieces of steel. He stated further that there were four (4) overhead cranes in

the workshop. He referred, as well, to employees designated slingers whose

responsibility is to prepare steel for lifting and turning.

36. Mr. Fermin was cross-examined by learned attorney-at-law, Mr. de la Bastide.

Under cros-examination, Mr. Fermin admitted that the defendant had engaged the

services of a Quality and Safety Manager, Elizabeth Saunders since 2001. Mr.

Fermin admitted further that in 2002, Ms. Saunders discovered that workers were

experiencing injuries because they were using bad lifting techniques.

37. Mr. Fermin admitted that workers were allowed to lift light items like steel rods,

weighing twelve pounds (12 lbs). This witness admitted further that in 2002, some

of the workers suffered injuries as a result of lifting steel.

38. Mr. Fermin denied that it was up to the worker to determine whether or not he

should lift manually. This witness stated that it was left to the supervisor and that

in 2006, he was the only supervisor. Mr. Fermin however admitted that there were

occasions when the decision whether or not to lift would be left to the worker.

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39. Mr. Fermin admitted as well that fabricators lift or turn steel manually and agreed

that turning steel did not require that it be completely lifted off the table and turning

would not require picking up anything from the floor.

40. Mr. Fermin agreed that the flyer would not pertain to turning steel. He admitted

that Yorke, the defendant company, has no written procedures for turning steel on

the work bench or for assisting a worker in deciding whether or not the steel is too

heavy for manual lifting.

Law

41. The obligations of an employer to provide a safe system of work was considered in

General Cleaning Contractors Ltd v. Christmas4. In that case, the respondent, a

window-cleaner, was employed by the appellants, a firm of contractors, to clean the

windows of a club. While following the practice usually adopted by employees of

appellants, he was standing on the sill of one of the windows to clean the outside of

the window and was holding one sash of the window for support, the other sash

came down on his fingers, causing him to let go and fall to the ground, suffering

injury. The respondent was successful in his claim for damages. On appeal, it was

held that the employers were liable to him in respect of his injury.

42. In giving judgment in favour of the respondent, Lord Oaksey had this to say:

“it is the duty of an employer to give such general safety instructions as a

reasonably careful employer who has considered the problem presented by

the work would give to his workmen. It is, I think, well known to employers,

and there is evidence in this case that it was well known to the appellants,

4 [1953] AC 180

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that their workpeople are very frequently, if not habitually, careless about

the risks which their work may involve.

...employers should take reasonable care to lay down a reasonably safe

system of work. Employers are not exempted from this duty by the fact that

their men are experienced and might, if they were in the position of an

employer, be able to lay down a reasonably safe system of work themselves.

Workmen are not in the position of employers. Their duties are not

performed in the calm atmosphere of a boardroom with the advice of

experts. They have to make their decisions on narrow window sills and

other places of danger and in circumstances in which the dangers are

obscured by repetition.”5

43. Lord Reid, in the same case emphasized that an employer who does all that is

reasonable to ensure the operation of a safety system, will have done what he is

bound to do6.

44. His Lordship noted however that ,the appellants in General Cleaning Contractors

Ltd:

“do not appear to have done anything as they thought they were entitled to

leave the taking of precautions to the discretion of each of their men. In this

5 Lord Oaksey in General Cleaning Contractors Ltd v. Christmas [1953] AC 180 at pages 189-190

6 Lord Reid in General Cleaning Contractors Ltd v. Christmas [1953] AC 180

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I think that they were at fault, and I think that this accident need not have

happened if the appellants had done as I hold they ought to have done.”7

45. In Stokes v. Guest, Keen and Nettlefold (Bolts and Nuts) Ltd8, Swanwick J. laid

out the overall test as

“the conduct of the reasonable and prudent employer, taking positive

thought for the safety of his workers in the light of what he knows or ought

to know.”9

46. The learned judge further stated:

“...where there is a recognised and general practice which has been

followed for a substantial period in similar circumstances without mishap,

he is entitled to follow it, unless in the light of common sense or newer

knowledge it is clearly bad; but, where there is developing knowledge, he

must keep reasonably abreast of it and not be too slow to apply it; and

where he has in fact greater than average knowledge of the risks, he may be

thereby obliged to take more than the average or standard precautions. He

must weigh up the risk in terms of the likelihood of injury occurring and the

potential consequences if it does; and he must balance against this the

probable effectiveness of the precautions that can be taken to meet it and the

expense and inconvenience they involve. If he is found to have fallen below

7 Lord Reid in General Cleaning Contractors Ltd v. Christmas [1953] AC 180 at pages 194

8 [1968] 1 WLR 1776

9 Per Swanwick J. in Stokes v. Guest, Keen and Nettleford (Bolts and Nuts) Ltd at page 1783

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the standard to be properly expected of a reasonable and prudent employer

in these respects, he is negligent.”10

Findings of Fact

47. The defendant, Yorke Structures Limited, is a company engaged in the business of

structural engineering works and in particular design, fabrications, supply and

erection of steel structures.

48. The claimant had been employed with the defendant company in the capacity of a

fabricator since 1973. For most of his tenure with the defendant company, the

claimant worked as a fabricator checker. Included in his duties were:

The inspection, reporting, supervision of corrective structural work when

same are not in accordance with workshop fabrications drawings.

Taking directions and assignments from the factory supervisor/manager,

who was Mr. Fermin.

49. On the 29th

June, 2006, the claimant, in his capacity as checker received a

complaint from the Atlantic LNG checker, who stated that he had noticed an error

in the fabrication on one of the angle braces.

50. The claimant verified that there was an error and reported same to the supervisor,

Mr. Roger Fermin. Mr. Fermin instructed the claimant to have Mr. Eshwar

Dulchan undertake the repair work. He further instructed the claimant to stay with

Mr. Dulchan and to assist him in checking on the repair work.

10

Ibid

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51. The claimant complied with Mr. Fermin’s directions. When Mr. Dulchan had

completed the exercise of cutting off the incorrectly positioned plate, the two (2)

workers coordinated their movement and turned the angle brace in a flipping

motion. The claimant then bent over to inspect the work and immediately felt sharp

back pains. He was referred to the company’s doctor. Eventually, the claimant

underwent surgery and never fully recovered. By a letter dated the 8th

February,

2008, signed by Laura Cozier, Director of Corporate Success, with effect from the

29th

February, 2008, the claimant’s employment was terminated on the grounds of

medical incapacity. At that date, the claimant would have been fifty-six (56) years

of age with nine (9) years remaining before the age of compulsory retirement.

52. The Court heard evidence as to safety measures employed by the defendant. In

2001, the defendant engaged, Elizabeth Saunders, Quality and Safety Manager.

Mr. Fermin admitted that in 2002, Ms. Saunders discovered that workers were

experiencing injuries because of bad lifting techniques. Thereafter, from the year

2003, Ms. Saunders took the initiative to use safe lifting procedures in the

company. However, prior to 2003, there had been no safety procedures in the

Company.

53. In the year 2003, the Company issued a flyer to guide employees as to the proper

methods for safe lifting. A dispute of fact arose as to whether the flyer had in fact

been affixed to a Notice Board of the Company’s office. For the purpose of this

claim however, the Court is prepared to accept the testimony of the defendant, that

the flyer had in fact been published.

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54. The flyer consisted of two (2) pages and four (4) paragraphs. It bore the following

heading:

“Yorke Structure Limited

Lifting Basics

Techniques for Safe Lifting”

The content of the flyer clearly related to the lifting heavy objects and this was

borne out by the drawings which illustrated good and bad techniques.

55. The issue therefore arose as to whether the Company issued any guidance for the

safe turning of heavy materials. It was clear from the evidence, and I find as a

matter of fact, that there were no safety procedures to guide employees as to the

proper techniques for turning materials.

56. It was also clear and undisputed on the evidence that on the day in question, the

claimant had been engaged in turning an angle brace of weight between seventy-

five pounds to one hundred pounds (75 lbs - 100 lbs). The angle brace had been

resting on a workbench which was approximately two feet (2 ft.) above ground

level. Mr. Dulchan and the claimant coordinated their action and flipped the angle

brace. The flipping motion, coordinated between two (2) workers involved both

lifting and turning the angle brace. I am satisfied that the guidelines which were

exhibited in these proceedings did not address the proper techniques for safe

turning.

57. The defendants alleged that the claimant had been acting out of the scope of his

employment. I respectfully agree with learned counsel, Mr. de la Bastide that this

allegation had not been pleaded in the Statement of Defence which had been filed

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in December, 2010. Nevertheless, I am prepared to assume that it had been properly

pleaded, since no application had been made at the appropriate time to strike the

relevant portions of Mr. Fermin’s Witness Statement.

58. I therefore proceed to consider whether the Claimant had been acting outside of the

scope of his employment. In this regard, Mr. Fermin’s answers under cross-

examination were extremely useful. Mr. Fermin under cross-examination admitted

that in 2006, it might have been necessary for a fabricator engaged in working on a

piece of steel to turn the items manually.

59. Mr. Fermin also admitted that there were no procedures available to guide a worker

in determining whether or not a piece of steel was too heavy to lift manually or

whether a worker ought to elicit the assistance of a slinger. He stated that workers

were required to seek the guidance of a supervisor but that he was the only

supervisor.

60. In my view, the claimant has succeeded in establishing on a balance of probabilities

that on the date of the incident, it had been part of his function to turn pieces of

steel, on which he was working and that at the time when the claimant was injured

he had been acting properly within the scope of his employment.

61. It is, in my view, also established on a balance of probabilities that the defendant

company had no guidelines in the safe method of turning heavy objects. No

guidelines had been issued to assist their employees in determining whether they

could turn an object manually or whether they should seek mechanical assistance of

the overhead crane and slinger. According to the evidence of the claimant, he was

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left to rely on his own discretion, deciding to utilize the crane and slinger when the

object exceeded one hundred pounds (100 lbs) in weight.

62. In my view, the lack of safety guidelines was further compounded by a system

which required the employee to have recourse to a single supervisor for guidance as

to whether an item could be turned manually. It was clear from the evidence, that

the very supervisor, Mr. Fermin, would reprimand the worker for delay in getting

the job done with the result that the employee would be more inclined to incur the

risk of turning the item manually to expedite the completion of the task at hand.

63. The defendant contended at paragraph 8 of the Amended Defence that the

claimant’s injury was caused wholly or in part, by his own negligence. In this

regard, the defendant cited three (3) particulars, that is to say:

The claimant’s failure to observe safety lifting techniques.

Rendering assistance to Eshwar Dulchan without observing safety

measures.

Failing to engage the assistance of one of the overhead cranes11

.

The defendant contended further that the claimant was a qualified fabricator with

more than forty (40) years experience.

64. In my view, the evidence adduced before the Court failed altogether to support a

finding of contributory negligence on the part of the claimant.

65. As to the claimant’s failure to observe lifting techniques, it was my view that the

activity in which the claimant had been engaged did not require lifting but turning.

An examination of the flyer containing lifting techniques demonstrates proper

11

Paragraph 8 of the Defence

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lifting of heavy objects from a lower to a higher level. The claimant, at the material

time was not however engaged in lifting but in turning, which would require partial

lifting of an object and engaging in a coordinated movement with a co-worker to

achieve a one hundred and eighty degree (180o) rotation of the object.

66. The defendant also contended that the claimant failed to engage or to seek the

assistance of the overhead cranes provided for the purpose of turning objects.

67. The defendant’s evidence in respect of this allegation established that there were

indeed overhead cranes which were operated by slingers. There were however no

guidelines, as to the circumstances in which an employee ought to engage the

assistance of the crane and slinger. Under cross-examination, Mr. Fermin

volunteered that such guidance would be provided by the supervisor and that in

2006, he was the only supervisor. Mr. Fermin also testified that fabricators often

turned items on their own.

68. It also emerged, in the course of the cross-examination of the claimant, that the

claimant had devised a policy of his own of not engaging the assistance of the crane

and slinger if the item weighted less than one hundred pounds (100 lbs).

69. In my view, the claimant, as with other employees, was compelled to devise

techniques of his own as none was provided by the employer. The evidence

suggests that the only available guideline was a mandate to seek the guidance of a

single supervisor.

70. In my view, the claimant, as with other employees would have been confronted

with a choice of delaying the progress of their task while awaiting the guidance of

the supervisor or taking the risk of turning the items manually and hoping for the

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best. The claimant also took steps to protect himself by procuring a back brace for

himself and devising for himself a system of turning objects manually if they

weighed less than one hundred pounds (100 lbs).

71. It is therefore my view that the claimant was doing his best in very strained

circumstances and could not be faulted whatsoever for having contributed to his

injury by negligence.

72. It is therefore my view that the defendant failed to provide a safe system of work

as set out in General Cleaning Contractors Ltd v. Christmas [1953] A.C. 180.

Lord Oaksey observed, in that authority, that workpeople are frequently if not

habitually careless about the risks which their work may involve. They do not

make decisions in the calm atmosphere of a boardroom, but on narrow window sills

or, in the instant case, in the heated atmosphere of a fabrication workroom. It is for

this reason that the employer must take the lead and prescribe instructions for the

safe execution of the work. In the instant case, the defendant failed to take

precautions for the safety of workers and failed to provide adequate instructions for

the safe methods of executing the tasks assigned to the employees.

Damages

73. I turn now to consider the quantum of damages due to the claimant.

74. Following the incident, the claimant underwent medical treatment, details of which

may be gleaned from his witness statement. The claimant visited the office of Dr.

David Ali on several occasions between June and September, 2006. After

consultations with the claimant, Dr. Ali referred the claimant to Dr. David Toby an

Orthopedic Surgeon who recommended that the claimant undergo a lumbar disc

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excision at the St. Clair Medical Centre. On the 23rd

of October, 2006, the claimant

underwent the surgery and was hospitalized for three (3) days.

75. After his discharge from the St. Clair Medical Centre, the claimant claimed that he

experienced progressively more intense pain and also observed fluid emanating

from around the area of the surgical incision.12

76. The claimant sought medical advice from one Dr. Martha Frederick-Franklin who

referred the claimant back to the St. Clair Medical Centre. On or about the 31st of

October, 2006, the claimant was admitted to the St. Clair Medical Centre where he

was given further treatment. The claimant was discharged from the St. Clair

Medical Centre on the 4th

of November, 2006.

77. On or about the 9th

of November, 2006 the claimant became very sick again. He

was unable to walk. He experienced excruciating pain and had to be lifted by

others. The claimant was rushed to the Eric Williams Medical Sciences Complex

and began experiencing seizures. He also lost consciousness. The claimant was

transferred to the Seventh Day Adventist Hospital and was under the care of Dr.

Toby and Dr. Spann a Neurosurgeon. The claimant was diagnosed with brain and

spinal cord infection. On the 12th

of November, 2006, the claimant underwent

further surgery to treat this infection.

78. After the surgery and treatment at the Seventh Day Adventist Hospital, four (4)

days later, the Claimant was transferred to the St. Clair Medical Centre for further

treatment. The claimant spent nine (9) days at the St. Clair Medical Centre and was

discharged on the 25th

of November, 2006. Subsequent to his discharge, the

claimant experienced debilitating pain and severe muscle spasms. The claimant’s

12

See Para 23 of the Witness Statement of Paul Harradan filed herein on the 13th

of January 2012.

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gait and balance were also affected. It became necessary for him to seek the

services of physiotherapist, Dr. Billy Mohess at the Physical Therapy Associates

Limited (Ltd).

79. On the 29th

of February, 2008, the claimant’s employment was terminated by the

Defendant Company on the grounds of medical incapacity. This was as a result of

report dated 29th

of May, 2007 by Dr. Toby to the defendant Company, indicating

that the claimant would be unable to return to his former job which requires

bending and lifting.

80. The following were among the cases cited by counsel for the claimant in support of

their claim for damages:

1) Wayne Wills v. Unilever Caribbean Limited13

, The claimant in this

case sustained injuries while working as a porter in the defendant’s

company. General damages were assessed by the Master in the sum of

seventy-five thousand dollars ($75,000.00) with interest at a rate of

twelve percent (12%) per annum. On appeal14

, the appellant challenged

the Master’s award of general damages, loss of future earnings and

future medical expenses.

2) Justice of Appeal Bereaux varied the awards of both special and general

damages assessed by the Master. Particularly, the award for general

damages was varied as follows:

“General Damages

13

HCA CV2007-04748 14

See Civil Appeal No.56 of 2009

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(1) Loss of future earnings in the sum of $751,464.58

($779,212.80 minus $27,748.22 being the workmen’s

compensation awarded to the appellant (no interest is payable

on this sum)

(2) $200,000.00 for pain and suffering as a result of the injury

with interest at 12% per annum from the 17th

December, 2007 to

30th

January 2009 .”15

3) Andre Marchong v. Trinidad and Tobago Electricity Commission16

the claimant, while at work, fell from a swivel chair and sustained

injury and was diagnosed as suffering from lumbar spasm and soft

tissue injury. Consequently, further tests revealed a narrowing of the

lateral recess at the L4-L5 with possible impingement of the traversing

L5 nerve root and disc degeneration at the L5-Slevel. Jones J. (as she

then was) found that the claimant was entitled to general damages in the

sum of sixty thousand dollars ($60,000.00) for pain and suffering and

loss of amenities as a result of the injury.

4) Gerard Jadoobirsingh v. Bristow Caribbean Limited Lewis Suarez17

,

the claimant suffered from soft tissue injury which consisted of mild

protrusions at four (4) locations on his spine. The claimant also suffered

from post-traumatic stress disorder. This court awarded general

damages in the sum of eighty thousand dollars ($80,000.00).

15

Per Justice of Appeal Bereaux in the case of Civil Appeal No.56 of 2009 Wayne Wills v. Unilever

Caribbean Limited at page 25 16

CV2008-04045 17

CV2005-00784

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5) Carolyn Fleming v. The Attorney General of Trinidad and Tobago18

the claimant sustained injuries while sitting on a chair at work which

collapsed beneath her. The claimant suffered injuries on both upper and

lower back radiating towards her legs, L4/5 S1 nerve impairment and

permanent impairment of twenty-five percent (25 %). The Court

awarded general damages in the sum of eighty thousand dollars

($80,000.00) with interest at a rate of nine percent (9%) per annum.

81. Through the Medical Report of Dr. Toby, admitted through a hearsay notice filed

on the 13th

January, 2012, the claimant has proved on a balance of probabilities that

he suffered permanent partial disability of thirty percent (30%). The Report of

Chiropractor, Dr. Billy Mohess, was also annexed to a hearsay notice filed on the

13th

January, 2012. There was no counter notice.

82. I respectfully agree with learned counsel, Mr. de la Bastide that the Report of Dr.

Toby demonstrates that the claimant suffered a herniated disc and was required to

undergo lumber disc excision with a partial permanent disability of thirty percent

(30%).

83. Having considered all the factors listed in Cornilliac v. St. Louis19

, and having

regard to the authorities relied on by the claimant, I am of the view that an

appropriate award for general damages would be eighty thousand dollars

($80,000.00).

84. In my view, the claimant has successfully proved the following items of special

damages:

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(a) Medication.

(b) Medical bills.

(c) Medical services.

(d) Acqua theraphy.

Totaling twenty-eight thousand dollars ($28,000.00).

85. The claimant suffered loss of earnings, in these amounts:

Between July, 2006 and the date of the institution of these proceedings,

July, 2010. One hundred and forty-one thousand, three hundred and

nineteen dollars and twenty-one cents ($141,319.21).

Between July, 2010 and the date of trial, March, 2014. One hundred and

ninety-one thousand, nine hundred and eighty-four dollars and sixty-four

cents ($191,984.64).

86. In respect of future loss of earnings, the Court relied on the learning set out in

Gerard Jadoobirsingh v. Bristow Caribbean20

. The claimant, at the date of his

termination would have been sixty (60) years old, with four (4) years remaining

before the age of compulsory retirement at sixty-five (65) years. In my view an

appropriate multiplier was two (2). This figure took account the vicissitudes of life.

The Court used a multiplicand of forty-seven thousand, nine hundred and ninety-six

dollars and sixteen cents ($47,996.16) which represented the claimant’s annual

income at the time of the incident. Using these figures the sum representing the

future loss of earning would be ninety-five thousand, nine hundred and ninety-two

dollars and thirty-two cents ($95,992.32)

From this sum should be deducted the sum already paid to the claimant by the

defendant, as an award of Workmen’s Compensation. Learned counsel on both

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sides agreed that this sum was forty-three thousand, nine hundred and seventy-

five dollars and forty-nine cents ($43,975.49).

Orders

87. There be judgment for the claimant.

88. The defendant to pay to the claimant damages as follows:

(i) General Damages in the sum of eighty thousand dollars ($80,000.00)

(ii) Special Damages in the sum of twenty-eight thousand dollars ($28,000.00)

(iii) Loss of Earning in the sum of one hundred and forty-one thousand, three

hundred and nineteen dollars and twenty-one cents ($141,319.21) and the

sum of one hundred and ninety-one thousand, nine hundred and eight-four

dollars and sixty four cents ($191,984.64)

(iv) Future Loss of Earnings in sum of ninety-five thousand, nine hundred and

ninety-two dollars and thirty-two cents ($95,992.32)

(v) The sum of forty-three thousand, nine hundred and seventy-five dollars

and forty-nine cents ($43,975.49) should be deducted as loss of earnings.

(vi) Costs to be determined by the Registrar of the Supreme Court.

Dated this 26th

day of June, 2015.

M. Dean-Armorer

Judge

BEFORE THE HONOURABLE MADAM JUSTICE DEAN-ARMORER...

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