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THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
Claim No. CV2010-01117
Between
CRISTAL ROBERTS
First Claimant ISAIAH JABARI EMANUEL ROBERTS
(BY HIS NEXT OF KIN AND NEXT FRIEND RONALD ROBERTS)
Second Claimant
And
DR. SAMANTHA BHAGAN First Defendant
MEDCORP LIMITED
Second Defendant
Before the Honourable Mr. Justice R. Rahim
Appearances:
Dr. M. Powers Q.C. and Mr. L. Murphy instructed by Mr. R. Williams for the Claimant
Mr. J. Walker instructed by Ms. D. Thompson for the First Defendant
Mr. R. Martineau S.C. and Mr. I. Benjamin and Mr. S Wong instructed by Ms. A. Achong-Low for the Second Defendant
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Decision on application for an interim payment
1. Before the court is an application of the 17th June 2014 by the Second Claimant for
interim payment in the sum of $10,000,000.00 United States Dollars (USD), pursuant to
Parts 17.4 and 17.5 of the Civil Proceedings Rules 1998 (hereinafter referred to as ‘the
CPR’). This application subsists only against the First Defendant, the Second Claimant
having discontinued the application against the Second Defendant by way of notice of
the 4th December 2014. For several reasons, including that of other applications made
from time to time by the parties and in particular an application pursuant to Part 33 CPR
to lead expert evidence which was heard and determined, this application was only heard
in December 2014. In support of the application the Second Claimant swore to and filed
two affidavits, one of 17th June 2014 and the other of the 9th December 2014, both
sworn by Instructing Attorney at Law. The First Defendant swore to and filed one
affidavit of the 23rd June 2014. This affidavit was deposed to by Ms. Cherie Gopie,
Attorney-at-law. The Second Defendant swore to and filed two affidavits of Ms. A.
Achong-Low, of the 26th June 2014 and 11th December 2014 respectively.
Background
2. The First Claimant, Cristal Roberts, became a patient of the First Defendant, Dr.
Samantha Bhagan in April/ May 2006 when Mrs. Roberts was about 36 weeks and 2
days pregnant with her first child. Dr. Bhagan practiced out of the Good Health Medical
Centre. Mrs. Roberts’ pregnancy was previously managed by two other doctors who also
practiced out of Good Health. Dr. Bhagan saw and treated Mrs. Roberts from the
aforementioned date until the birth of the Second Claimant. It was agreed between the
parties that the delivery would take place at St. Clair Medical Centre. Medcorp Ltd, the
Second Defendant, is the owner of St. Clair Medical Centre.
3. On the 3rd of June 2006, Mrs. Roberts gave birth to her son, Isaiah Roberts, the Second
Claimant. Various complications arose as Mrs. Roberts went into labour, which resulted
in Dr. Bhagan ultimately deciding to use forceps to deliver Isaiah. Isaiah was born with
his umbilical cord wrapped around his neck. He was unresponsive at birth, and was
eventually resuscitated about ten minutes after delivery.
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4. Isaiah has been diagnosed with cerebral palsy along with other various disabilities. He
has undergone various procedures and methods of treatment throughout his childhood,
and continues to undergo them. While the Second Claimant has had some local
treatment, the parents of the Second Claimant take him almost exclusively to the United
States to be treated, and are in fact about to relocate there.
5. The claim was filed on the 24th March 2010 and an Order was made by consent of the
parties and with the approval of the court on the 21st of January 2013, in respect of
liability, consequent to which the court stayed proceedings pursuant to the terms set out
in a settlement agreement made among the parties. The Defendants by that order agreed
that they were liable for 90% of the damages that would be awarded to the Claimants.
The Defendants also made a voluntary interim payment to the Claimants.
6. Part 17.4 CPR outlines the general procedure for the application of interim payments,
and Part 17.5 identifies the conditions and matters that must be satisfied and considered
in granting or dismissing the application. Part 17.4(4) sets out that;
(4) The evidence must—
(a) state the claimant’s assessment of the amount of
damages or other monetary judgment that is likely to
be awarded;
(b) set out the grounds of the application;
(c) exhibit any documentary evidence relied on by the
claimant in support of the application;
7. So that the Second Claimant accordingly in this application, has set out the grounds of
the application, the likely award of damages and has attached an extensive number of
reports of expert evidence. The voluminous nature of the expert evidence in this case is
unique due to the nature of the injury that is cerebral palsy.
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Conditions to be satisfied- Part 17.5
Admission of liability
8. Part 17.5(1) authorises the court to make an order for interim payment once any one of
certain conditions outlined in the section are satisfied. The condition outlined in Part
17.5(1)(a) enables the court to make such an order if the defendant has admitted liability
to pay damages. In this case, as set out by the Second Claimant at paragraph 2 of his
Notice of Application, the Defendants have admitted liability to pay damages in the
amount of 90% of the claim. The court is therefore empowered to use its discretion to
determine whether an application for interim payment should be granted.
Insurance, means and resources of the Defendant
9. Part 17.5(2) prescribes that in a claim for personal injuries, the court may make an order
for interim payment only if the defendant is insured in relation to the claim, is a public
authority, or has means and resources that enable him to make the payment. It is the
Claimant’s evidence at paragraph six of the affidavit of the 17th June 2014, that the First
Defendant is insured. There is no evidence to the contrary emanating from the First
Defendant. Her affidavit filed in opposition is silent on the issue. The court is therefore
satisfied on the evidence that the First Defendant is insured.
10. The Claimant’s withdrawal of the application for interim payment against the Second
Defendant appeared to have been in response to the Second Defendant’s evidence that it
did not possess the means nor resources to make a “one off” payment of $10 million
USD. The Second Defendant has however made submissions and provided authorities
in relation to the application, having regard to the fact that the Second Defendant
(according to it), has an interest in the outcome of the application by way of Part
17.6(2)(c) which reads;
17.6(2) The court may in particular—
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(c) order a defendant to reimburse, either in whole or in
part, another defendant who has made an interim
payment.
11. However, it is the court’s view that the Second Defendant may be found liable to the
First Defendant by way of indemnity and/ or contribution in relation to the interim
payment ordered only in the case where the First Defendant has either made a claim
against the Second Defendant or that part of the claim as relates to the interim payment
has been discontinued. See Part 17.6(3) CPR. This is not here the case. There is no
potential liability on the Second Defendant in respect of an order for interim payment
made against the First Defendant according to Part 17 of the CPR.
12. However, be that as it may, it cannot be said that a Defendant who will ultimately be
responsible for the payment of damages either in whole or in part, should have no say in
relation to an application for an interim payment which involves a determination of the
court as to what amounts to a reasonable proportion of the likely amount of final
judgment. To deprive the Second Defendant of the opportunity to be heard on the
application in those circumstances would be unfair. This is particularly so in a case such
as this where the damages awarded are likely to be within the upper tier of the
substantial damages category. As a consequence the court will consider the evidence
filed and submissions made by the Second Defendant in determining this application.
Whether the application against two or more defendants satisfies the criteria of the court
13. Part 17.5(3)(a) CPR states that in a claim for damages for personal injuries, where there
are two or more defendants, the court must be satisfied that the claimant would obtain
judgment for substantial damages against at least one of the defendants, even if a
determination as to which defendant is liable has yet to be made. Further, Part
17.5(3)(b) CPR states that the court must be satisfied of the criteria set out in Part
17.5(2) in relation to each of the defendants (the defendant being insured in respect of
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the claim, being a public authority, or being a person with sufficient means and resources
to make the interim payment).
14. In relation to 17.5(3)(a), it is clear that the damages recoverable in this claim are likely to
be substantial. Counsel for the Claimant submitted that the value of the claim is likely to
be $40,036,830.28 US, less 10% pursuant to the Defendants’ contractual acceptance of
90% liability. Attorney for the First Defendant has also made submissions as relate to the
value of the claim. In that regard, the issue of the value of the claim shall be dealt with
later on in this decision. It is however, quite a reasonable proposition that by any view of
the evidence, that the damages in this case having regard to all the circumstances of the
case, are likely to be substantial. So that the criteria at 17.5(3)(a) has been fulfilled in the
court’s view.
15. The First Defendant has however submitted that the application cannot succeed against
her as the evidence shows that one of the two Defendants is not a person whose means
and resources are such as to enable him to make the interim payment under CPR
17.5(2)(c). (See paragraph 15 of Achong-Low’s affidavit of 26th June 2014). Counsel for the
First Defendant relied on the authority of Schott Kem Ltd v Bentley and Others
[1991] 1 QB 61. In that case Neill LJ, after giving a general outline of the requirements
for making an interim payment application, observed at page 73 that an order for interim
payment cannot be made against one or other of two defendants on the ground that the
court is satisfied that the plaintiff will succeed against one or other of them. According
to the First Defendant, if the court is left unsatisfied as to the ability of either defendant
to pay pursuant to the order then the court cannot order that one defendant make an
interim payment only.
16. The Claimant responded to this submission by stating that the Defendants are not joined
by the hip but are jointly and severally liable. As such, the Claimant would be able to
pursue the matter against any one Defendant that meets the criteria.
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17. In the court’s view, there is a marked difference between being satisfied as to whether a
claimant will succeed against a particular defendant and being satisfied as to the ability of
either defendant to pay. They are entirely two different criteria. The criteria set out at
Part 17.5(3)(b) appears to be, that in case where there is more than one Defendant, the
criteria set out at Part 17.5(2)(c), (namely that the court must be satisfied that the
Defendant is a person whose means and resources are such as to enable him to make the
interim payment will), must be satisfied in relation to the particular defendant against
whom it is proposed to make the order. This is particularly so in this case since the
liability of each defendant is joint and several. In a case such as this, where the First
Defendant is severally liable to compensate the Second Claimant, the means and
resources of the Second Defendant bears no relevance to the application for an interim
payment. The court must however be satisfied that the First Defendant is a person
whose means and resources are such as to enable her to make the said payment.
18. Part 25.7 of the UK CPR reads as follows;
25.7
Interim payments—conditions to be satisfied and matters to be taken into
account.
(1) The court may only make an order for an interim payment where any of the following conditions
are satisfied—
(a) the defendant against whom the order is sought has admitted liability to pay damages or
some other sum of money to the claimant ;
(b) the claimant has obtained judgment against that defendant for damages to be assessed
or for a sum of money (other than costs) to be assessed ;
(c) it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a
substantial amount of money (other than costs) against the defendant from whom he is seeking an order
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for an interim payment whether or not that defendant is the only defendant or one of a number of
defendants to the claim ;
(d) the following conditions are satisfied—
(i) the claimant is seeking an order for possession of land (whether or not any
other order is also sought); and
(ii) the court is satisfied that, if the case went to trial, the defendant would be held
liable (even if the claim for possession fails) to pay the claimant a sum of money for the defendant's
occupation and use of the land while the claim for possession was pending; or
19. Thus in so far as the provisions of part 25.7(1)(a) to (d) of the UK rules are concerned, there
is marked similarity between those rules and our CPR. However, when treating with the
issue of multiple defendants, the UK rules are somewhat different to those found at part
17.5(3) of the TT CPR;
(e) in a claim in which there are two or more defendants and the order is sought against any one or
more of those defendants, the following conditions are satisfied—
(i) the court is satisfied that, if the claim went to trial, the claimant would obtain
judgment for a substantial amount of money (other than costs) against at least one of the defendants (but
the court cannot determine which); and
(ii) all the defendant's are either—
(a) a defendant that is insured in respect of the claim;
(b) a defendant whose liability will be met by an insurer under Section
151 of the Road Traffic Act 1988 or an insurer acting under the Motor Insurers Bureau Agreement or
the Motor Insurers Bureau where it is acting itself, or
(c) a defendant that is a public body .
Patently absent from the rule is the requirement that the court be satisfied that the
defendant is a person whose means and resources are such as to enable him to make the
interim payment as set out by 17.5(2)(c) of the TT CPR. So that the UK CPR makes it
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clear that the court must be satisfied that the defendant against whom the order is
sought to be made falls into the category of those set out at 25.7(1)(e)(ii), although the
rule uses the words “all the defendants are either”. In so doing, the UK rule appears to this
court to be acknowledging that the court ought not to be concerned with the ability of
any other defendant to pay (through the Insurer), but should be satisfied that the
particular defendant against whom the order is sought is insured. In this court’s view
however, the underlying principle in relation to the requirement for the defendant to be
insured is the same as the underlying principle set out in the TT CPR, namely that the
court be satisfied that an order is being made against a defendant who can pay whether
by his own means (TT) or through his insured (UK).
20. In Berry v Ashtead Plant Hire Co Ltd [2011] EWCA Civ 130, the Claimant was
employed by the first defendant, a haulage company. The employer was contracted to
deliver accommodation units to the site of an outdoor music festival, which was being
promoted and organised by the second defendant. The third defendant supplied the
accommodation units. The claimant later joined a fourth defendant, the health and safety
advisor and manager of the site for the second defendant. All defendants were insured
with the exception of the second defendant. The claimant was the driver of a lorry
mounted with a crane that was sent by the employer to deliver the units. While
unloading the units at the festival site, the claimant was electrocuted, as either the crane
or the unit made contact with a live power line that was overhead. The claimant’s brain
was severely damaged, he became immobile and unable to communicate, and was placed
in a residential neuro-rehabilitation centre due to a need for twenty-four hour care. As
the Claimant could not recall the incident, it was uncertain as to how the incident
occurred, resulting in a delay in the trial. The claimant by way of his litigation friend, his
wife, applied for an interim payment of $350,000.00 against the first, third and fourth
defendants to pay for the 24 hour care. The first defendant had already made an interim
payment to the claimant of $100,000.00.
Longmore LJ in delivering the decision of Their Lordships opined:
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[9] Mr. Oliver Campbell submitted that, on the face of it, the rule envisaged that, even if the court
were satisfied that one or other of two Defendants would be held liable, an interim payment could
only be obtained in a case where all the Defendants were insured. The fact that the application was
made against two Defendants who were themselves insured did not make any difference to that
position. That is certainly a possible construction of the rule but it is difficult to see any rational
basis for preventing an interim payment in those circumstances if the court is quite satisfied that one
or other of two Defendants against whom the application for interim payment is being made is
insured and will be held liable. The fact that there may be another Defendant who is not insured has
nothing to do with the matter.
(10) in a case where there is truly no doubt but that either Star Autos or Ashtead will be held to be
liable (which is a pre-condition of the rule in any event) it would be unreal to require a Claimant to
discontinue just because he had also sued an uninsured Defendant against whom he was not seeking
any order for interim payment.
21. However, it is significant that the Learned Judge went on to add that even under the relevant
provisions of the old RSC in the UK (provisions similar to TT CPR 17.5(2)(c)), the position
in relation to an application for interim payment was that the court need only be satisfied in
relation to the defendant who is before it on the application. His Lordship stated at
paragraph 13 as follows;
“[13] One is not supposed to refer to the old RSC for assistance on construction but it is at least of
interest to observe how the requirement for insurance was expressed, before there was any ability to obtain an
interim payment in a case of what I may call alternate liability. It was RSC Ord 29 r 11 and provided:
(1) If, on the hearing of an application under rule 10 in an action for damages, the court is satisfied
a) That the Defendant against whom the order is sought (in this paragraph referred to as
'the Respondent') has admitted liability for the Plaintiff's damages, or
b) That the Plaintiff has obtained judgment against the Respondent for damages to be
assessed; or
c) that, if the action proceeded to trial, the Plaintiff would obtain judgment for substantial
damages against the Respondent or, where there are two or more Defendants, against any of them,
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the court may, if it thinks fit and subject to paragraph (2), order the Respondent to make an interim
payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the
opinion of the court are likely to be recovered by the Plaintiff after taking into account any relevant
contributory negligence and any set-off, cross-claim or counter-claim on which the Respondent may be entitled
to rely.
(2) No order shall be made under paragraph (1), in an action for personal injuries if it appears to
the court that the Defendant is not a person falling within one of the following categories, namely –
a) a person who is insured in respect of the Plaintiff's claim or whose liability will be met by
an insurer under section 151 of the Road Traffic Act 1988 or an insurer concerned under the
Motor Insurers' Bureau agreement:
b) a public authority; or
c) a person whose means and resources are such as to enable him to make the interim
payment.”
Here it is clear that the requirement of insurance applies to the person against whom the application for
interim payment is being made. This has now been relaxed so as to require insurance to exist only in the case
of alternate liability but it is difficult to believe that the framers of the rule, while relaxing that requirement,
intended to refuse relief if it was the case that a Defendant, who was not being asked to make an interim
payment at all, happened to be uninsured.”
22. The court is of the opinion that the reasoning in Berry is sound and good law, even if
the Learned Judge’s comments on the RSC are considered to be obiter dicta. The
underlying intent of rule TT CPR 17.5(2)(c) is the same. It could not reasonably have
been the intention of the rule that an application for an interim payment be refused
simply because one of the defendants who is not before the court on the application
does not have the means and resources to make such payment. In this case this is
particularly applicable as the liability of the First Defendant is both joint and several. The
court therefore cannot agree with the submissions of the First Defendant in this regard
and finds that the application does not and cannot fail by virtue of the evidence of the
Second Defendant that it does not have the means or resources to make an interim
payment.
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Anticipated value of the claim
23. The First Defendant submitted that the value of the claim has been grossly overstated by
the Claimant; that there ought to be a forensic examination of the evidence of the
expenses so that the court could determine whether the expenses were reasonable. It is
submitted that so to do would be to conduct a mini trial, an exercise that the law does
not empower the judge to embark upon. Further, the First Defendant submits that in
any event, the assessment of damages are set to proceed in a few months time and it
would therefore be a waste of the court’s resources to embark on this exercise so close
to the assessment.
24. Attorneys for the Claimant submitted that they anticipate the value of the claim to be
$40,036,830.28 USD, less 10%. The anticipated quantum of damages put forward by the
Claimant was therefore calculated to be $35,000,000.00 USD. That what is reasonable
lies between two thirds and three quarters of the damages likely to be awarded. The
Claimant has annexed to his affidavit a chronology showing the amount of time that he
spent receiving care in the USA, and a schedule of past and future losses (“the
schedule”) calculated up to June 2014, which was in turn supported by expert evidence.
The Claimant proposes to rely on at least thirteen experts whose reports as to the health,
needs and expectations of the Claimant have been filed. These experts have displayed
specialty in and testified with reference to the following areas:
a. Actuarial science – disclosure on the discount rate and lump sum damages’
calculation
b. Economic issues- real average earnings (in the United States)
c. Nursing care- past, present and future care needs of the Claimant
d. Life care planning- physician recommended medical treatment and procedures
for the remaining duration of the Claimant’s life (primarily with reference to the
cerebral palsy diagnosis)
e. Life expectancy – computation of years expected to live as a result of damage
suffered
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f. Neurodevelopmental paediatrics- an overall condition and prognosis report (on
education, employment, independent living skills, medical needs, relationships,
capacity and life expectancy)
g. Paediatrics – an overall condition and prognosis report
h. Speech and language therapy- impact on language comprehension, expression
and communication
i. Assistive technology- use of technology to aid in education and communication
j. Physiotherapy- opinion on effective treatment and equipment to aid in
minimising physical disabilities
k. Occupational therapy- rehabilitation needs to aid in developing work and daily
living skills.
l. Educational psychology – a report on present educational capacity, education
goals, and future educational psychological needs
m. Accommodation – report on present living requirements and proposal for
optimum future living arrangements
n. Compensation and benefits assessment – report on measure of damages in
relation to impact on salary and employment
o. Architecture and construction – estimate of costs for specially outfitted residence
p. Psychiatry – psychological impact (on the First Claimant).
25. The schedule summarised the content and findings of the expert evidence as listed
above. With regards to the Second Claimant’s physical injuries, the schedule noted that
Isaiah was diagnosed with several physical impairments from birth, and has cerebral
palsy along with other physical, psychological and intellectual ailments. The schedule
showed the results of calculations of Isaiah’s past losses, and displayed a long list of past
expenses for care ($325,117.72 US), medical ($61,584.56 US), travel, transport, housing
and accommodation ($154,348.59 US), therapy, aids, aides and equipment ($61,223.72
US), miscellaneous expenditure ($31,244.83 US) and interest on the above ($125,143.79
US). The Claimant’s anticipated assessment of damages for past losses amounted in total
to $758,783.21 US.
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26. The schedule then set out Isaiah’s future losses, which consisted of expenses calculated
for future care and attention (A multiplier of 98.10 resulting in a claim for
$26,269,265.70 US), future medical care ($418,191.60 US), future loss of income
($4,107,711.73 US), appropriate accommodation (either $875,224.26 or $1,139,196.78 US
for constructing a suitable addition to an already purchased house in the USA, or
$2,637,506.28 US for continued rental of suitable property, the rental option being the
preferred choice of the Claimant) therapy, aids, aides and equipment ($577,102.06 US),
physiotherapy ($785,669.30 US), speech therapy ($743,006.11 US), occupational therapy
($2,954,709.90 US), specialist education and training ($403,222.07 US), financial and
investment advice (claimed providing full compensation for the Second Claimant) and
receivership costs (to be provided and evidenced in the formal Schedule). The Claimant
also claimed general damages in the sum of $275,000.00 US, and interest on said sum of
$106,662.33 US.
Whether the value of the claim is excessive
27. Counsel for the Defendants submitted that the Claimant’s submission of anticipated
damages far exceeded the actual value of the claim. Paragraph 11 of the affidavit of
Cherie Gopie, filed by the First Defendant, refers to the estimated claim value of
$35,000,000.00 US (keeping in mind the Defendants’ liability to 90% of the overall
claim) as being a “gross over-estimate”. Counsel further maintained in paragraph 12 that
the valuations relied upon by the Claimant were not agreed to by the Defendants, and
that accordingly the First Defendant would submit their own expert evidence in order to
challenge the values calculated in the Claimant’s schedule.
28. The Second Defendant also argued that the value of the claim put forward by the
Claimant was misleading. Achong Low at paragraph 21 of her second affidavit testified
that the Claimant claimed costs for which the Defendants should not be held liable.
These costs were outlined in the documentation providing evidence of special damages
in bundles marked “A” and submitted by the Claimant with the interim payment
application. Achong Low testified that these receipts and other such documentation
included bills for items irrelevant and unnecessary to the claim, such as:
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“…fast food meals, …donuts, basic toiletries and groceries that are not medically necessary, flights
between Trinidad and the USA for multiple family members, new furniture and household items…,
and expenses purportedly associated with this litigation such as “breakfast for experts”.
Counsel for the Second Defendant averred in paragraph 24 of their submissions that the
documentation provided by the Claimant did not sufficiently prove that the sums recorded
as being spent on the bills were truly spent on the Claimant’s behalf, in that they did not
meet the basic requirements of specific proof of damages. Counsel also submitted the case
of Shearman v Folland [1950] 2 KB 43, in which it was held that living expenses that are
incurred in the ordinary way of life cannot be claimed as damages, as such expenses would
have been incurred regardless of injury.
29. Counsel for the Claimant agreed that Shearman v Folland (supra) held the cost of
sustenance to be deducted to an extent. They submitted however that if the expenses
reasonably incurred because of treatment, in this case from the Second Claimant and his
family going to the USA for treatment, and their having meals there, such cost would be
recoverable. Counsel also submitted that the receipts for such payments were admissible
pursuant to the Evidence Act of Trinidad and Tobago, cap 7:02, s39 (admissibility of
certain records in civil proceedings).
30. The court agrees that several living expenses claimed by the Claimant appear at first to
be outside the realm of reasonable expenses that a court would ordinarily allow. A
proper determination of whether those expenses are allowable would involve cross-
examination in relation to each item, a luxury which cannot at this stage be afforded.
Further, as correctly set out by the Second Claimant, the issue in this case appears to be
whether the expenses incurred for care in the USA are reasonable expenses. This will of
course have to be considered in the context of whether the particular head of care is
available within this jurisdiction and at what cost. Some of the reports filed by the
Claimants demonstrate that in some cases adequate care appears to be unavailable
locally. The challenge for the court will be that of making a determination after cross-
examination and submissions, as to which of those claims should be allowed because
there simply is no suitable alternative in existence locally. In that regard, it may well be
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the case that as it stands on the application, the Claimant’s claim is excessive, but this is
not an issue that this court can determine at this stage without hearing the evidence
which is to be led on the part of all parties on each issue. This is a case in which almost
all of the expert evidence on the part of the Claimants is facing active challenge; so much
so that the Defendants have all proffered their own expert evidence on almost every
discipline in relation to the future care of the Second Defendant. It is in these highly
contentious circumstances that this court is being asked to determine what the likely
amount of the final judgment.
Interest
31. Counsel for the Second Defendant also claimed that the Claimants improperly calculated
interest from the time of birth, for which there is no evidence of expenses or losses so
incurred (see paragraph 25 of the Second Defendant’s submissions).
Claims for future loss
32. It was further submitted on behalf of the Second Defendant that no claims should be
made for future loss. Counsel relied on at paragraphs 43 and 45 of the case Cobham
Hire Services Limited v Benjamin Eeles (By His Mother and Litigation Friend
Julie Eeles) [2009] EWCA Civ 204 wherein Lady Justice Smith gave a commentary on
the appropriateness of future loss in interim payment applications. Lady Justice Smith
opined that in order for judges to begin the process of assessing the interim payment,
they must first remove heads of future loss as those would be best dealt with by
periodical payment orders, which would allow the court to account for the change in the
value of money, circumstances and the like in the future (see paragraph 5).
33. The Second Claimant submitted in response to this however that the periodical payment
orders are not provided for in the legislation of this jurisdiction.
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34. Lady Justice Smith further opined in Cobham that the assessment would be best
calculated solely with special damages to date and damages for pain, suffering, loss of
amenity, with appropriate interest, though accommodation is in practice now included.
35. At paragraph 45, Lady Justice Smith observed that future loss can be included in a
court’s assessment of likely final damages when the judge can be confident that a “larger
capital sum than that covered by general and special damages, interest and accommodation costs alone”
would be awarded at the final assessment.
36. This court is of the view, that the future loss is likely to be substantial, having regard to
the age of the Second Defendant, his life expectancy, the nature of the injury, the
availability of care locally, or non-availability of care locally and that the damages to be
awarded for future loss will certainly exceed the sum covered by general and special
damages, interest and other reasonable associated costs. The weight of the claim for
damages in a case such as this lies in the future and this is a factor that this court must
consider should there be a determination of the likely damages to be awarded on final
determination.
37. In relation to the distinction which the Learned Queens Counsel makes between the
Trinidad case and the UK case in that regard, namely, that there does not exist a
provision for periodical payments in this jurisdiction, the court is agrees that the
distinction may account for the difference in the approach of the two courts, suffice it to
say that the test to be applied in this jurisdiction in relation to an application for an
interim payment remains clear. Future loss is an integral part of any claim for personal
injury where applicable and so must be considered unless either statute or common law
dictates otherwise, which is not here the case.
Discount rates and multipliers
38. The First Defendant took issue with the Claimant’s use of the discount rate from Simon
v Helmot [2012] UKPC 5, which produced large multipliers from negative discount
rates. The First Defendant argued that Helmot applied to another jurisdiction, and that
the discount rate used in this case is dramatically different to the conventional discount
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rate used in Trinidad. The First Defendant accordingly relied upon comparative law
expert evidence to provide the court with not only the traditional discount rate used in
Trinidad, but other methods that could and should be used to calculate the discount rate
instead of the method submitted by the Claimant. The witness for the First Defendant
further stated that even if the Helmot methodology were to be accepted by the courts,
their expert evidence produced significantly higher discount rates, which in turn led to
significantly lower multipliers in contradiction to the multiplier calculated by the
Claimant.
39. The First Defendant filed a counter-schedule on the 7th October 2014, which submitted
that the court should use the lesser rate between Trinidad and the USA, that the
Claimant’s needs for Occupational and speech therapy would end in 5 or 6 years, that
the maximum multipliers to be used are 16.88 for USA and 19.27 for Trinidad and that
the Kacy Turner multiplier and “community living” option should be used as they were
the less expensive options.
40. Counsel for the Claimant maintained however that the assessment is based on the option
most likely to be used by the Claimant, once it is deemed reasonable, and not on which
is the least expensive option. The court agrees with this reasoning and would add that
what is reasonable is to be reckoned with regard to which exists in this jurisdiction.
Further, for the court to take the extra ordinary step of refusing to apply the discount
rate which applies to this jurisdiction would require full argument and justification. This
is an issue which cannot be decided by this court at this stage of the proceedings.
41. In relation to the future losses of the Claimant, Achong Low in her second affidavit
made reference in paragraph 23 to a schedule that she prepared and annexed to her
affidavit, outlining the expert evidence that the Second Defendant intended to rely on,
with their recommended costs for services. Achong Low in paragraphs 24 to 27 then
detailed her use of the conventional multiplier-multiplicand method and various discount
rates to calculate what the Second Defendant would posit as a reasonable value of the
claim. Achong Low testified that a multiplier of 15 would result in the total award for
future costs being approximately $5,668,500.00 TT, and a multiplier of 20 (usually the
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highest multiplier awarded in the jurisdiction) being approximately $7,558,000.00 TT.
Achong Low further calculated that the award with a 4% discount rate would total
$9,200,000.00 TT, and a 3% discount rate would total $10,700,000.00 TT. It is on the
basis of the expert evidence and these calculations that Achong Low thus testified and
counsel for the Secondary Defendant argued against the Claimant’s application for
interim payment, stating that it amounted to far more than a reasonable proportion of
the likely final judgment to be made by the court.
42. Counsel for the Second Defendant also noted that the unconventional multipliers were
not pleaded in the re-amended statement of case of the Second Claimant. Counsel also
submitted that in keeping with the “conservative approach” of assessing damages, which
will be discussed at greater length below, the court should accordingly prefer the more
conventional multiplier.
43. Counsel for the Claimant submitted at the interim application hearing that the issue of
whether the conventional or actuarial multiplier should be used should and could not be
determined before the trial in light of the detailed and complex factual and legal
evidence, as well as considerations for whether awards for future losses should be made,
whether UK principles could be followed alongside local jurisprudence, and whether
such issue is one of policy or law. This court agrees entirely with this submission. It is
not the duty of this court to decide such an issue at this stage as the issue is yet to be
fully argued.
44. Counsel for the Claimant submitted that should the court choose the actuarial multiplier,
the court would then have to consider two issues. The issues themselves would have to
be determined at trial. The judge should however still consider the two, outlined as
follows:
a. The lifetime expectancy of the Claimant. The figure is based on expert evidence
from the Claimant, (the court noticing that the life expectancy of the Claimant is
nearly 8 years shorter in Trinidad than it is in the US) and
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b. The appropriate level of the investment risk carried by a Claimant when a lump
sum is awarded. Inflation and interest must be considered in settling upon a
discount rate. The Claimant submitted that the Defendants would support the
riskier option, but the Claimant maintained that the Defendants should be the
one to bear any risk, should it be so necessary.
45. The Claimant submitted that the court must nonetheless “take a view” so as to
determine a sum that the Claimant would recover at the final assessment. Counsel stated
that the court should still do the best it can with what it has. The court would have to
make its deliberations on the basis of the current evidence before it, including those still
in dispute between parties, with no cross-examination. The court also agrees with one
aspect of this submission, bearing in mind the present state of the claim, namely that the
court must do the best with what it has at that stage. That however, is not to say that the
court must take a view in relation to the multiplier which ought to be applied on final
assessment. In that regard the court notes that there remains outstanding, at the date of
writing, the weighty issue as to whether, the amendments to the claim, which were
permitted by this court, will eventually form part of the case. These amendments are of
much weight as they relate to the ability of the Second Defendant to defence the case for
care in the USA, in the context of that which is reasonable by reference to local care.
Further, some of the issues yet to be determined by this court on a full hearing are as
follows.
Relocation/ Accommodation
46. The First Defendant challenged the Second Claimant’s estimate of damages submitting
that it was unreasonable and inappropriate for the Claimant to pursue his claim on the
basis of the relocation of the family to the USA. The First Defendant averred that the
sole reason for the Claimant’s relocation was to receive care and treatment in the USA,
pointing out that the Claimant’s entire family was born in and are citizens of Trinidad.
Of course, a determination in relation to this issue is at the end of the day dependant on
the reasonableness of care in the USA if equal care is available in this jurisdiction. The
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other factors to be considered in the interest of the Second Defendant will be the impact
if any of frequent travel to the USA for care should the court find that care for certain
matters in the USA is reasonable while others are not. In such a case, it may well mean
that serious consideration ought to be given to a move to the USA having regard to the
impact on the health of the Second Claimant and the proportion of care reasonably
available in Trinidad and Tobago as opposed to the USA. But these are matters which
require in-depth expert evidence and mature consideration. In short these are matters for
a trial on damages which this application is not.
Treatment/ therapy
47. There remains strong contention between the parties as regards the quantity of
treatments and therapies listed within the schedule of the Claimants. Opposing parties
argue that the treatments and therapies are unreasonable and unnecessary. In this regard
the parties have sought to lead their own expert witnesses. The First Defendant relies on
the expert report of Neil Thomas, Consultant Neurologist, who stated that in his
professional opinion the amount of external therapy sessions, x-rays and scanning listed
in the Claimant’s schedule was unnecessary, that the value of some therapies was
questionable, and that the value of the US conductive education was no greater than that
of the traditional therapy treatments available for more cost effective prices in Trinidad.
Again this is an issue which can only be determined at trial.
Value and necessity for care from the mother
48. The cost of a caregiver is also a source of contention. At paragraph 13 of the first
Achong Low affidavit the First Defendant argues that it was not reasonable for the First
Claimant to leave her job in order to take care of the Second Claimant, her son. Counsel
for the Second Defendant stated at paragraph 22 of their submissions that should
compensation for a caregiver be calculated, it should be based on, at most, a commercial
rate, which according to the witness statements of caregivers Indra Singh and Sharon
Thavenot average from $3000TT to $4000 TT per month. The resolution of this issue is
similarly inextricably linked with the issue as to what aspects of care and treatment in the
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USA are reasonable and whether a move to the USA is therefore reasonable. It is in that
context that the caretaker’s cost will have to be assessed.
Reasonable proportion of final judgment
49. Part 17.5(4) of the CPR stipulates that the interim payment must be a reasonable
proportion of the likely amount of the final judgment. The Second Claimant seeks
$10,000,000.00 US which counsel submits would not be more than a reasonable
proportion in relation to the anticipated quantum of damages, which has been estimated
by the Claimant to be $35,000,000.00 US.
50. The First Defendant, submits in reply that the quantum of damages for the final
judgment will be far lower than the sum anticipated by the Claimant, so that the value of
the interim payment applied for by the Claimant is consequently far greater than a
reasonable proportion of the final judgment and could even exceed the total value of the
eventual judgment. The Second Defendant also submits that on order for the sum of
$10,000,000.00 US could create “a significant risk” of overpayment.
51. However, in what one could argue amounts to an exceptional occasion of agreement
between the parties in this case, all parties appear to agree that a reasonable proportion
lies somewhere between 2/3 (60%) and 70% of the final assessment. The First Claimant
has suggested 60% and it appears that the Second Defendant has accepted the dicta of
the Hon. Mr. Justice Langley at paragraphs 18 to 20 in the case of Spillman v Bradfield
Riding Centre [2007] EWHC 89 QB (relied on by the Second Claimant), that 70% is a
reasonable proportion.
The standard of proof
52. Counsel for the Second Defendant at paragraph 9 of his submissions submitted that in
respect of an interim payment, the standard of proof lies at the “higher end” of the civil
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standard, and relied on the observations of the Learned Chief Justice Archie at page 44,
lines 9-13 of the case of Caryn Sobers v Pricesmart Trinidad Limited and Another
[26th March 2012] Civ App No. 55 of 2012.
53. Counsel for the Claimant submitted in reply that in the HM Revenue and Customs v
The GKN Group[2012] EWCA Civ 57, (GKN case), the court reinforced that the
standard of proof in interim payment proceedings, child care proceedings, and any other
civil proceeding is the same civil standard of a balance of probabilities. The court
acknowledged that since the ruling in Re H & Others (Minors) [1996] 1 AC 563, it has
been properly established that there is only one civil standard of proof, which is to be
strictly adhered to so as to diminish uncertainty and confusion as to what burden is
placed upon the parties.
54. The court is of the view that these cases adequately set out the applicable standard. In
the Sobers case, it is not that the Learned Chief Justice was saying that a higher standard
is applicable to applications for interim payments. It is clear that His Lordship was saying
that the same civil standard was applicable. In any event, the facts of the Sobers case are
easily disguisable from the present case as in that case the court was concerned with
standard to be applied by the court in determining whether it is satisfied that the
Claimant would succeed at trial. No such issue arises here as both Defendants have
admitted liability.
Obligation to show need under Part 23.13 CPR (Minors)
55. Counsel for both Defendants submitted that no evidence was produced by the Second
Claimant to demonstrate the manner in which the payment is to benefit the minor and
thereby also establish that there is a need for funds. The Second Defendant claimed that
the application for interim payment did not satisfy the conditions under Part 23.13 CPR,
which governs the control of money recovered or paid into court for the benefit of a
minor. Part 23.13 is intended to protect the minor from risks of misuse and abuse of
funds that ought to be applied to his benefit.
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56. The Second Defendant also submitted that when an interim payment application is made
in reference to a minor, it is confined to sums needed for his/ her expense and
maintenance. The authority relied on was RSC Order 80, the predecessor to CPR Part
23. Counsel for the Defendants therefore submitted that as the Claimant refused to shed
light on the intended use of the interim payment.
57. The Second Claimant submitted in response that Part 23.13 only becomes applicable
when an interim payment is ordered, as the provision does not carry any effect until
“money is recovered”. As such, it is only a relevant consideration when the payment is
actually ordered. Counsel then reminded the court that when the settlement agreement
was made, the Claimants acquiesced willingly to the directions that the court gave in
relation to transfer of monies by bank account and the like.
58. To put it quite simply, the court agrees with the submissions of the Second Claimant in
that regard as it makes good sense. Should an order for interim payment in fact be made,
the court would then hear from the parties before suitable orders in relation to the
manner in which the money is held and invested for the benefit of the minor are made.
Those orders may in fact be guided by several considerations one of which may be the
quantum awarded and the immediate needs of the minor along with suitable investments
instruments available. Those are issues which can be subsequently treated with and do
not derogate from the court’s decision as to whether or not an interim payment should
be made.
Common law obligation to disclose need
59. Counsel for the Claimant maintained throughout that there was no legal obligation on
their part to state the needs and/ or reasons of the Claimant in making the application.
As Lady Justice Smith said at paragraph 44 of Cobham Hire Services Limited v
Benjamin Eeles (By His Mother and Litigation Friend Julie Eeles) [2009] EWCA
Civ 204,
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“… the judge need have no regard as to what the claimant intends to do with the money. If he is of full
age and capacity, he may spend it as he will; if not, expenditure will be controlled by the Court of
Protection.”
60. The Defendants relied on the case of Stringman (A Minor) v McArdle [1994] 1 WLR
1653 in support of their submission that the court should be presented with sufficient
evidence as to the Claimant’s intentions with the interim payment should they be
awarded with it. Counsel for the Claimant submits however that the case in fact serves to
bolster the argument of the Claimant. In so submitting, Learned Queens Counsel
identified the statement of Stuart-Smith LJ at page 1657, paragraph “F”, wherein His
Lordship stated:
“It should be noted that the plaintiff does not have to demonstrate any particular need over and above
the general need that a plantiff has to be paid his or her damages as soon as reasonably may be done.”
61. In this regard the court observes that Butler-Sloss LJ makes the observation at page
1656, paragraph C that:
“To object on the ground that the money is to be applied for the wrong purpose or is to be applied for too
extravagant a purpose seems to me to go outside what one would expect the normal objections of counsel
for the defendant to make.”
62. The Defendants also relied on the authority of Tinsley v Sarkar [2004] EWCA Civ 1098
in support of their argument that the expenditure planned by the Claimant for the
interim payment is a relevant consideration that must be shared with the court. Counsel
for the Claimant replied that the facts in Tinsley enabled such details to be relevant in
that instance, as the outcome of the plans set for the payment (an experiment) could
have had the outcome of causing the defendant to be made further liable and indebted
to the Claimant. In that instance, without the facts, the defendant may have been
prejudiced in the final assessment. The court agrees that this case is distinguishable on
that basis and is therefore of no assistance to the Defendants in that regard.
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63. In the present application, the Claimant submits that in any event, the Defendants know
what the Second Claimant has been doing and proposes to do, in light of the Ricardo
Williams affidavit swearing to various medical treatments and courses that have been
undergone and are set to undergo. As such, they submit that there is no prejudice to the
Defendants in detail being withheld from them, nor is there a need for them to be made
aware of such detail. The Claimants further state that they will provide the information if
so desired and requested by the court, without prejudice to the submission of the Second
Claimant that there remains no obligation upon him to do so.
64. This court is of the view that in the ordinary course of events, a court ought not to be
concerned with any particular need on the part of the Claimant in making an order for
interim payment and that there is no reason in principle that the court should be so
concerned merely because the Claimant is a minor. In the words of Butler-Sloss LJ in
Stringman at page 1656, paragraph C:
“To object on the ground that the money is to be applied for the wrong purpose or is to be applied for too
extravagant a purpose seems to me to go outside what one would expect the normal objections of counsel
for the defendant to make.”
65. That which the court must be concerned is the duty to ensure that funds recovered for
the benefit of minors are in fact so used. It is however not a criteria to be considered by
the court whether by way of common law or otherwise in determining whether an order
should be made for an interim payment. In other words, whether an interim payment
should be paid is not dependant upon whether money is immediately needed but rather
upon an entitlement once all the criteria have been met and the discretion of the court
has been properly exercised.
Status of the Claimant’s schedule of past and future losses
66. The First Defendant submitted that the Claimant’s schedule had no status as a document
in the claim. Paragraphs 8 and 9 of the Cherie Gopie affidavit averred that the Second
Claimant did not have the permission of the court to file the draft schedule as the time
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for the filing of pleadings had expired when the schedule was filed. It was claimed in the
Cherie Gopie affidavit that the Claimant’s schedule bore little similarity to the re-
amended schedule of losses filed by the Claimants beforehand. As such, only the re-
amended schedule could be validly used as evidence. The Cherie Gopie affidavit further
stated at paragraph 9 that the Claimant had “already been refused permission to file an
earlier draft of this document… at a previous hearing”.
67. The Second Defendant submitted that that the Claimant’s schedule of loss was served
without any filed application for permission to use same, that schedule itself is not
properly pleaded; it is averred, but merely annexed to the affidavit of Ricardo Williams,
attorney for the Claimant. Paragraph 17 of the second Achong Low affidavit further
supports this submission, reiterating that various documents used in the schedule have
yet to be proven, that the evidence was inadequate, and in some places not even pleaded.
68. In relation to these issues, the court notes that having regard to the approach which will
be adopted in relation to the instant application later in this decision, these matters are of
little relevance to the outcome of the application.
The Discretion
69. How then is the court to approach an application for interim payment in a case of this
unique nature and circumstances of severe personal injury to a new-born, where the
expert evidence is voluminous and highly contentious, where the parties seldom agree on
material aspects of the case and the determination of the likely award is dependant on
the resolution of the very issues which form the bone of contention between the parties.
Should a court find that in those circumstances, the quantum of damages likely to be
recovered on final assessment cannot be ascertained and therefore dismiss the
application. This is the approach advocated by the First Defendant. But would such a
pedantic approach be fair. Fair not only to the parties but fair in the context of the role
and function of the administration of justice. In the exercise of the discretion, there are
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several factors which the court must consider. Of priority among those considerations is
the mandate of the court to have regard to the overriding objective when exercising any
discretion under the CPR. The mandate of the court is to treat with the exercise of that
discretion in a manner which is just having regard to the factors set out in Part 1.1(2)
CPR.
Mini-trial
70. Counsel for the Second Defendant submitted that on hearing the application for an
interim payment, the court will have to hear and consider several issues which will be
tantamount to the court conducting a mini-trial to assess a suitable interim payment.
Such a mini-trial would seem almost inevitable; the Defendants both argue, in light of
the fact that the issues to be dealt with are highly complicated and technical in nature,
both in relation to legal and factual claim.
71. In so submitting, the Second Defendant relied on the case of Trebor Basset Holdings
Limited and Others v ADT Fire and Security Plc [2012] EWHC 3365 (TCC). In
relying on the dicta of the very authority, Counsel for the Claimants submitted that the
Honourable Mr. Justice Coulson had in fact stated at paragraph 8 that while mini-trials
are:
“not desirable… the court should not decline to entertain an application merely because the parties have
chosen to put in a good deal of material; that is almost inevitable in high value or complex… cases”.
72. Further, Mr. Justice Coulson at paragraph 10 relied on the dicta of Aikens LJ at
paragraph 38 of the GKN case wherein he distinguished that which applies at an
application for interim payment from that of trial. Aikens LJ was of the opinion that for
an application, the judge is considering what would happen if he were to go to trial, with
the material presented to him from the parties. With a trial, the judge would have heard
all submissions and evidence and would have to decide facts of law and fact, and would
then make a finding on the matter. He then ended by saying:
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“the court must be satisfied… that the claimant would in fact succeed on his claim and that he
would in fact obtain a substantial amount of money.”
73. The dicta of Justice Coulson finds much fertile ground with this court. The fact that
there are material issues yet to be decided ought not to prevent the court from making
an order for an interim payment where the criteria set out in part 17 are met. In
particular, in this case there has been an unequivocal admission of liability and the
circumstances of the tort make it abundantly clear that damages are likely to be
substantial. Additionally, the court finds that this is a fitting case to exercise its discretion
to order an interim payment and could find no justiciable basis so not to do.
Delay
74. The Second Defendant submitted that an order made for interim payment would at this
stage only be inconvenient to all parties involved as this could “substantially delay” the
hearing for the assessment. (See paragraph 19(b) of the first Achong Low affidavit). This is a
rather unattractive argument in the court’s view. This application was filed since the 17th
June 2014, but has been delayed in large measure due to other issues which have arisen
in this case and which in the view of all parties had to be resolved prior to the
determination of the application. The parties in this case have had major disputes on
almost every issue since the entry of the consent order on liability so much so that it has
affected the timeline set out for the hearing of other applications from time to time. The
fact that the hearing of the assessment is set for July 2015, ought in the context of the
factual history of proceedings of this case to bear no relevance to the application for an
interim payment and should not affect the trial date which is some four months away.
The Conservative approach
30
75. The Defendants submitted that the court should adopt a conservative approach should
the court be inclined to make an order pursuant to the application. In so doing, the First
Defendant relied on Cobham (supra). Cobham concerned the determination of an
application for interim payment in a serious personal injury claim, with periodical
payment orders more likely than not being part of the structure of the final assessment
of damages. The claimant had already received interim payments, the latest application
being for funds to purchase and alter a suitable home for the applicant. Lady Justice
Smith began by her decision by reference to the proviso of the UK CPR 25.7(4), (the
equivalent to this in the CPR of Trinidad and Tobago being Part 17.5(4)). The Learned
Judge opined that the rule allowed for the making a conservative estimate of the likely
final award. At paragraph 3 of the decision Smith J outlined what was required for a
judge to make a conservative decision;
“… he would need both sides’ schedules of loss, in so far as they could be provided at that stage. He
would have to make a broad assessment of the merits of each side’s contention and would err on the side
of caution. He would order an interim payment which allowed a comfortable margin (or headroom) in
case his preliminary estimate turned out to be too generous.”
Further, at paragraph 34;
“…we ought to make a conservative estimate so that where there is a significant difference between the
parties, it is safer to rely on the defendant’s contention.”
At paragraph 43;
“A reasonable proportion may well be a high proportion, provided that the assessment has been
conservative”.
76. The conservative approach as proposed by Smith J, by its very nature suggests that the
court should be able to come to a reasonably certain conclusion of the final damages, so
that payment of an “irreducible minimum” can be ordered without venturing into areas
of lengthy and intricate legal and factual dispute. It must also be that on material issues
where there exists wide disparity between the parties, the approached must be one
measured by a conservative estimate which in turn ought by reason to be calculated by
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reference not to the highest award suggested by any party as a starting point, but by that
which appears to be on the lower end of the spectrum. Such an approach in this court’s
view is the cautious approach which ensures that the award anticipated is not too
generous and allows for a comfortable margin in case it is. The circumstances of this
case are apt for the application of the conservative approach when determining the sum
likely to be awarded as damages. There is contention in respect of almost all heads of
claim and the expert evidence is challenged on almost every front. Further, there remains
an outstanding but material issue as to whether care in the USA is reasonable having
regard to all the factors including whether or not the same care is available in Trinidad
and Tobago. These are matters which go to the root of the final assessment of damages
but they are matters which this court must set aside in treating with the present
application. In the court’s view, this is the only way in which this court can make an
order that is fair to all parties at this stage and ensures that all parties are on equal
footing. In these circumstances the court must adopt an approach which ensures that is
broad enough to avoid the possibility of estimating an award which turns to be above
that which is finally made. The court will therefore exercise its discretion to make an
interim payment having adopted and applied the conservative approach to the
determination of the likely award of damages.
77. It must necessarily mean that the court must also apply the principles that govern the
determination of the multiplier in this jurisdiction. The calculation of the multiplier in
this jurisdiction involves far less complexity, but more so, the multipliers used in
Trinidad and Tobago appear to be more conservative than those used in the USA. In any
event, it is for the Second Claimant to demonstrate to this court, good reason for the
court to deviate from that which is the accepted law in this territory when calculating
multipliers. This is yet to be done in full arguments upon hearing expert evidence in that
regard.
The likely award of damages
78. The Second Defendant is at the mercy of others to care for him for the rest of his life. At no
time during his lifetime will he be able to perform the simplest of tasks which those who do
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not suffer such a debilitating condition perform on a daily basis. It is not only that he will be
unable so to do but it is the case that he would never have done so having been visited with
this injury from birth. The considerations in arriving at compensation for his loss are to be
found in the well-known authority of Cornilliac v St. Louis 7 WIR 491. They are:
(a) the nature and extent of the injuries sustained;
(b) the nature and gravity of the resulting physical disability;
(c) the pain and suffering endured;
(d) the loss of amenities suffered;
(e) the effect of pecuniary prospects.
79. The Second Claimant has been diagnosed with Hypoxic ischemic encepghalopathy, left
middle cerebral artery infarction, right local seizures (resolved), spastic triplegic Cerebral
palsy, right hemiplegia, spasticity in right extremities, bilateral hip dysplasia (resolved), status
post right sided Dega osteotomy and bilateral femoral varus derotational osteotomies
(04/03/12); status post bilateral removal of hardware, right foot Z-lengthening of posterior
tibial tendon/flexor halluces longus/flexor digorum longus/ Achilles tendon, right plantar
fascial release, right subtalar and tibiotalar joint closed reduction with percutaneous pinning,
and left sided gastrocnemius-soleus release (04/30/13), bilateral hamstring tightness,
developmental delay (motor and speech), and chronic constipation. He endures symptoms
related to spasticity in three extremities, is delayed in his development and requires
specialised care. He is limited in age appropriate activities of daily living as well as
communication skills. Experts have recommended a lifetime of extensive medical treatment.
80. The Second Claimant requires accommodation that is specifically adapted to his unique
needs. He also requires continuous physiotherapy, occupational therapy, speech therapy,
specialist education and training and the aid of technology if he is to have an existence which
in any event is less than that which is had by the average individual. His opportunities for
employment as an adult have been greatly diminished to say the least. The ability to function
as a child in relation to playtime has been diminished in so far as soft play areas are required
in order to reduce the risk of further injury.
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81. In the case of Mark Soodeen et al v AG TT 2010 HC 247, Justice Rajnauth Lee (as she
then was), considered several cases which are of assistance to this court and have so been
considered. The Learned Judge considered the cases of Keron Christopher v Clarence
Rampersad and Another HCA S. 1063 of 1996 (the judgment of Kangaloo J. on the 16th
July, 2001), Octon Bernard v Orr and Another HCA 3278 of 1999 (the judgment of Smith
J. on the 22nd November, 2002) and Tiffany Singh v Attorney General of Trinidad and
Tobago HCA 3260 of 2001 (the decision of Master Margaret Mohammed made on the 26th
March, 2012).
82. In Soodeen, Mark, a 16 year old boy became severely mentally handicapped from lead
poisoning, to the point where he was rendered unable to ever take care of himself and in
need of special 24 hour care. He was awarded the sum of $2,500,000.00 for pain and
suffering and loss of amenities in July 2012. In Keron Christoper, the plaintiff was a
healthy, active fifteen (15) year old secondary school student who was knocked down. He
became a quadriplegic and lost all sensation below his nipples. As stated by Rajnauth Lee J at
page 16 of her judgment,
“…..he was at the mercy of others to care for him for the rest of his life. He was awarded $890,000.00 for
pain, suffering and loss of amenities. In Octon Bernard, the plaintiff was eleven (11) years of age when he
was involved in a vehicular accident. He suffered a serious brain injury with bilateral cerebral dysfunction and
irritability in the right parietal lobe. He was at best able to lead a semi-independent life with loss of cognitive
skills. The award for pain, suffering and loss of amenities was $500,000.00. In Tiffany Singh, Master
Mohammed awarded the sum of $500,000.00 for general damages in respect of a 13 year old who was
injured at hospital, the injuries resulting in her being a slow learner.”
General Damages
83. The court considers that although there appears to be no direct evidence of pain and
suffering, it can be reasonably inferred that the disability will result in some level of pain and
suffering in relation the performance of the Second Defendant of ordinary everyday
personal tasks. Therefore, having regard to all of the circumstances, including the physical
disability, the loss of amenities, comparable awards, the age of the Second Claimant at the
date of injury, namely from birth, the sum anticipated for general damages by the Second
Claimant namely, $275,000.00 USD (1,732,500.00 TT approximately on a conversion rate of
34
6.35TT to 1 USD), the court is of the view that general damages for pain and suffering is
likely to be in the region of $2,000,000.00 as a conservative estimate. The court notes that
neither the First nor Second Defendants have supplied the court with what they consider to
be the sum anticipated for general damages.
Special Damages
84. The Claimants have claimed the total sum of $633,639.42 USD ($4,023,610.32 TT). Of this
sum, the sum of $325,117.72 USD (TT $2,064,497.52) has been claimed for home care. The
Second Defendant says that this figure is quite unreasonable and the cost of home care lies
in the range of TT$3,000.00 to $4,000.00 per month. The balance claimed is for past medical
treatment, travel, transport, housing, accommodation, therapy aids and equipment and
miscellaneous expenses. The miscellaneous expenses amount to $31,244.83 USD (TT
$198,404.67). The Defendants have mounted a vociferous challenge to many of the
miscellaneous expenses and the sum claimed for home care provided by the First Claimant.
Applying the conservative approach, it appears to the court that home care in the region of
$5,000.00 per month is a reasonable figure. In that regard, considering the fact that the
Second Claimant will be 9 years old at the date of the final award and factoring in a discount
on home care the court estimates that the sum of $500,000.00 TT is a reasonable sum likely
to be awarded for home care. On the conservative scale, therefore, the court estimates that
the sum likely to be awarded for past losses including care to be the sum of $1,500,000.00
TT.
Future Losses
85. The parties have all agreed that the Court should adopt the multiplier/multiplicand
approach. However the multiplier to be used is a source of much contention in the manner
demonstrated elsewhere in this decision. As stated before, in the absence of full arguments,
on the issue, the conservative approach would be to calculate the multiplier in the
conventional manner used in this jurisdiction. Future losses refers to all loss which is
somewhat measurable from the date of trial and includes cost of future care, loss of future
earnings, loss of earning capacity and loss of earnings during the loss years. In relation to a
child who is injured from birth, the estimate of loss of future earnings is elusive due to the
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variables which may beset the individual during his lifetime. As stated by my brother
Rajkumar J in Lee Poy v Securiserve Ltd & Anor CV 2008-01892 at paragraph 21;
“The award is not susceptible to precise mathematical calculation but constitutes a Court’s best effort at
projecting from the evidence into the future and estimating as best as it can what the Deceased’s prospects
would have been. It is a process, however, that is necessarily uncertain. Those uncertainties for example
include: (i) the possibility that the Deceased (in this case the Second Claimant) may have fallen ill or
may have passed away, well before he came to the end of his working life. (ii) The possibility that the
Deceased (Second Claimant) may have been unemployed. These are just a subset of possibilities that are
encompassed in the uncertainties inherent in predicting the future.”
Multiplier
86. In Peter Seepersad v Theophilus Persad and Anor. (2004) 64 WIR 378, Their Lordships of
the Privy Council in determining the appeal of the appellant who had been injured by a vehicle
which fell some 25 feet from a bridge commonly called a flyover unto the vehicle in which he
was travelling, thereby causing him severe injuries to his back and resulting in incapacity opined
that that a multiplier should be fixed which would give proper compensation to the victim,
taking into account interest rates in Trinidad and Tobago, and making some allowance for the
contingencies of life. In that case a purchase of 16 years was allowed.
87. Additionally, the Second Claimant who has been injured from birth, stands in a different
position from those who are injured during the later years as he may be more susceptible to
the contingencies of life. In that regard, it is difficult to predict. Further the court also takes
judicial notice that the current discount rate on Treasury bills in Trinidad and Tobago is five
and one half (5 ½ ) per cent as at the 2nd March, 2015. Having regard to the discount rate in
effect as at July 2012 as set out by Rajnauth Lee J in Soodeen it appears that this fluctuating
but mostly stable rate has increased by .5 % over the last two years and thirty three months
and is unlikely to fluctuate considerably in the next few months. However, the issue of the
applicable discount rate is one which is yet to be decided having regard to the expert
evidence being relied on. The court therefore shall not factor in the discount rate at this
stage. The Second Claimant has claimed the sum of $4,107,711.73 USD for future loss of
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income on the basis of expert evidence which sets out the results of a survey done on
relation to the salaries. However it appears that this head of damages has not been pleaded.
88. The court must also consider the life expectancy of the Second Claimant. It appears on the
expert evidence of all parties that the life expectancy of the Second Claimant is somewhere
between 51 and 55 years as of 2012 and 2013 respectively. The court considers that a
conservative estimate of the life expectancy of the Second Claimant would therefore be 53
years.
89. Taking into account current interest rates in Trinidad and Tobago therefore, and making
some allowance for the vicissitudes of life, and in an attempt to fix a multiplier which would
give proper compensation to the Second Defendant having regard also to the uniqueness of
this particular case, this court is of the view that a multiplier of 20 years’ purchase would
most likely be allowed on the conservative approach. In so finding the court is acutely aware
that a multiplier of 20 in this jurisdiction is somewhat on the high end of the scale of
conventional multipliers, but that being said, this case is an exceptional one having regard to
the nature of the injuries and to the fact that injury would have taken place at birth, so that
in the context of these circumstances, a multiplier of 20 is in the court’s view, a reasonable
one.
Multiplicand
90. The Second Defendant has quite helpfully set out in their written submissions, a schedule of
the cost of future care as obtained from the experts upon which they rely. This schedule is
hereto annexed as “A”. According to the Second Defendant at paragraph 24 of the Achong
Low affidavit, an application of the lower sums for future care as set out in the schedule,
deferring to the experts where a higher frequency was mentioned than that set out by the
experts of the Second Defendant, and using a life expectancy of 54 years, calculating one
year as 48 weeks to allow for illness, holidays and vacations has resulted in an anticipated
multiplicand of TT $377,900.00. The Second Claimant has advocated an entirely different
approach to the multiplier/multiplicand calculation as set out hereinabove. So that the
Second Claimant has not set out what it considers to be the likely multiplicand when using
the conventional method of calculation. Neither has the First Defendant set out any such
calculation. In those circumstances the court ought to use that which has been set out by the
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Second Defendant when applying the conservative approach as a starting point. In so doing
the court is mindful of the fact that a full forensic examination is yet to be conducted in
relation to the evidence on all heads of damage and that issues which touch and concern the
cost of care in Trinidad and Tobago are yet to be decided. However, as Learned Queens
Counsel has urged, those issues notwithstanding the court must treat with the application as
best as it can with what it has. In those circumstances the court shall use the multiplicand
suggested by the Second Defendant which appears to have been calculated on a reasonable
basis and will adjust same by the addition of a sum of $50,000.00 for unforeseen visits and
other contingencies. In so doing the court finds that the rounded off sum of $430,000.00 is a
reasonable multiplicand.
91. Applying the multiplier of 20, the sum likely to be awarded in relation to future losses is
likely to be $8,600,000.00.
92. Therefore when tallied, the award, for General and Special damages and Future Loss which
is likely to be made, based on the conservative approach, will be in the region of at least
$12,100,000.00. Interest on General and Special damages from the date of filing of the claim
on the 24th March 2010 to the date of judgment by consent on liability on the 21st January
2013 (which is to be ascertained upon full argument on assessment, if any), may also be
awarded but does not here form part of the court’s consideration. The liability of the
Defendants have been agreed in the amount of 90%, which amounts to $10,890,000.00 The
parties have agreed that a reasonable proportion lies in the vicinity of 60% to 70% of the
final likely award. In keeping with Spillman the court would order an interim payment of 70%
which would, subject to what is set out below, amount to the sum of $7,623,000.00.
The previous voluntary interim payment
93. The Defendants submitted that the court should consider that the Claimants have already
received a substantial voluntary interim payment, the last payment of which ended about a
year and three months ago. It was suggested that this gap is not a long period of time in
light of the quantity paid. The Second Defendant submitted that the voluntary payment was
substantial and therefore a sufficiently reasonable proportion of the final assessment of
damages, despite the Claimant’s refusal to disclose the precise sum to the court.
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94. The Second Defendant further submitted that the amount of a previous payment, as well as
the fact that one was made, is relevant, and cited the case of Fryer v London Transport
Executive (4th December 1982) The Times (CA). In this case, the applicant adduced
evidence of the existence and amount of previous interim payments that were made. It was
held that such relevant information was not prohibited, as the considerations for the
making of an interim payment application differed from the considerations applied in
assessing damages at a trial. The court agrees with the general reasoning set out in that case.
The court also notes that the case was brought under the old English RSC 29.15 which set
out that the fact that a defendant has made an interim payment shall not be disclosed to the
trial judge until “all questions of liability and the amount of money to be awarded have been agreed unless
the defendant agrees”. There is no such prohibition contained in CPR 17 TT as relates to
interim payments and for good reason. In this jurisdiction, in the usual course of events, the
very judge who ultimately presides over the trial conducts case management. In those
circumstances a rule, which prohibits disclosure of an interim payment, would simply be
otiose.
95. Learned Queens Counsel for the Second Claimant submitted in response that he had no
issue with disclosure of the fact of the voluntary interim payment to the court so as to aid
the court in making its determination of an interim payment, but asked the court to note
that it was the Defendants who refused to disclose the terms of the Tomlin order
agreement when counsel for the Claimants sought to get an agreement from them to do so.
96. Be that as it may, the Second Claimant also submitted that Part 36.5(3) CPR, under which
the settlement terms were created, was to prevent any of the parties to the agreement from
disclosing the sum of the voluntary interim payment to the court. The Second Claimant
submitted that the Defendants were actually in breach of this provision in their inclusion of
the sum of the voluntary payment in the Cherie Gopie affidavit at paragraph 15. The
Second Claimant further submitted that the affidavit erroneously quoted a higher voluntary
interim payment of $1,050,000.00 USD instead of that which was actually paid, namely
$1,000,000.00 USD. Counsel for the Claimant further stated that the size of the interim
payment had to be kept private so as to ensure the receipt of the Defendants’ voluntary
admission of 90% liability in the matter.
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97. Counsel for the Second Claimant then invited the court to rule on the issue of whether
information such as payment into court pursuant to a Part 36 offer would be prohibited
from being disclosed to the court, at an interim payment application hearing.
98. Part 36.5(3) reads as follows:
The fact that an offer has been made under this Part or any payment into court in support of the offer
shall not be communicated to the court until all questions of liability and the amount of money to be
awarded have been decided.
36.5(4) reads:
Paragraph (3) does not apply—
a) to an offer which has been accepted;
99. This issue is readily resolved by recourse to the ordinary meaning of the words set out
above. Should there have been an offer in respect of liability or quantum, then the fact of
that offer ought not to have been disclosed to the court prior to the offer being made.
Where however, the offer is accepted, this fact can be brought to the court’s attention there
no longer being an issue between the parties in that regard. In this case, there appears to
have been acceptance of the offer in relation to liability only. There is no evidence before
the court of an offer in relation to quantum of damages. There is evidence of an interim
payment having been accepted and paid. The disclosure has been in relation to a voluntary
interim payment for a minor and not an offer of a final sum in relation to damages. So there
has been no such offer. It appears to the court that the agreement to make an interim
payment cannot be equated with an offer to settle the issue of a final award of damages
under 36.5(3) CPR and so the information as to the interim payment made can be
disclosed to the court as it does not fall within the purview of that rule.
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100. Therefore it is the finding of the court that neither Part 17 nor Part 36 prevents the
disclosure of the voluntary interim payment to the court in this case. In any event, both
parties appear to have no difficulty with the disclosure at this stage. Further, the issue of
whether disclosure has taken place in contravention of the agreement set out in the Tomlin
order is an issue that arises in contract between the parties and is an issue the resolution of
which is not necessary for the determination of this application.
101. The court must therefore account for the previous voluntary interim payment in
determining its final order on the instant application having regard to the total likely award
to be made on assessment. Should this not be done, there is a risk that the interim
payments in total will exceed that of the damages to be awarded on final judgment. In this
way the order of the court is well within the irreducible minimum. The quantum of the
voluntary interim payment was the sum of $1,000,000.00 USD. When converted based on
an exchange rate of 1 USD to 6.37 TT (as of 3rd March 2015), the voluntary payment
amounts to $6,370,000.00 TT. When this sum is set off against the interim payment that the
court would have ordered had it not been for the voluntary payment, the sum payable as an
interim payment amounts to $1,253,000.00. Rounded off for variation in the exchange rate
between the date of the voluntary interim payment and the current rate, the court would
order an interim payment $1,260,000.00.
102. Finally, the court will invite submissions as to the manner in which the interim payment
is to be made for the benefit of the minor pursuant to Part 23 CPR. The court will also
invite submissions on the issue of costs of this application.
Dated this 5th day of March 2015.
Ricky Rahim
Judge
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