THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV 2011-03101

BETWEEN

Darryl Damian Abraham

Claimant

AND

The Attorney General of Trinidad and Tobago

Defendant

Before the Honourable Justice Ricky Rahim

Appearances:

Mr. K, McQuilkin and Mr. R. Freeman for the Claimant.

Ms. A. Alleyne and Mr. S. Julien for the Defendant.

2 | P a g e

Judgment

This claim is for damages for personal injury suffered by the Claimant as a result of two

incidents alleged to have occurred during the course of his employ on the 28th

August

2007 and on the 10th

June 2010.

Background

The Claim

The Claimant was born on the 25th

October 1980. According to the Claimant, he was at

the material times, employed as a Perifocal Operator with the Ministry of Health, Insect

Vector Control Division, Sangre Grande.

On 28th

August 2007 during the course of his employment, the Claimant was operating a

dynofogging machine at a client’s house at #5 Good Hope Street, Sangre Grande, when

he fell from a balcony which was without any railing and was five feet above ground (‘the

first incident’). As a result of this fall he suffered injury to his back. Consequently, his

doctors advised that he only perform light office duties and not field work as he had

previously done.

Notwithstanding doctors’ recommendation, the Claimant was sent out on the field at

Good Hope Extension Coal Mine, Sangre Grande on 10th

June 2010. While walking

along the muddy road from one client’s house to another, he slipped on a concrete slab

which was unsteady. As a result his pre-existing back injury was exacerbated (‘the second

incident’).

3 | P a g e

The Claimant avers that his injuries were sustained by reason of the negligence and/or

breach of statutory duty of the servants and/or agents of the State. The Claimant alleges

the following injuries as a result of both incidents and in support thereof, relies on the

medical reports of the Drs. Peter Kowlessar, Henry Bedaysie, Igbinoba Osagie and the

Radiology Report of Dr. Vijaya Rani Choppala:

Nerve Root irritation;

Nerve root compression;

Lumbosacral spasm with decreased range of movement;

Absent medial hamstring jerk

Decreased ankle reflex

Diminished sensation bilateral L5 dermatome

Weakness of right ankle dorsiflexion

Moderate spondylotic changes;

Osteophtic lipping L4-5

Mild diffuse annular disk bulge at L3-4;

Mild left neural foramina stenosis;

Nerve roots irritation at L3-4 and L4-5;

Diffuse annular disk bulge with focal disc protrusion at L4-5;

The Claimant alleges the following Particulars of Negligence and/or Breach of Statutory

duty in relation to the first incident, that the Defendant:

Failed to provide the Claimant with a safe system of work or equipment;

4 | P a g e

Failed to take protective measures reasonably required for the Claimant to

work safely on the balcony at a height five feet above the ground by way

of a temporary guard or rail;

Failed to provide the Claimant with personal protective equipment

reasonably required for his working safely on the balcony by way of a

safety harness;

Exposed the Claimant to risk of injury while he was working on the

balcony;

Failed to provide any or adequate supervision reasonably required for the

Claimant to work safely on the balcony by way of a supervisor or safety

officer;

Failed to warn the Claimant about the risk of his falling from the balcony

and thereby suffering injury;

Failed to carry out any adequate risk assessment before carrying out the

process of dynofogging of homes;

Failed to prevent the Claimant’s fall and resultant injury;

Caused the Claimant to fall and suffer injury.

The Claimant alleges the following Particulars of Negligence and/or Breach of Statutory

duty in relation to the second incident, that the Defendant:

Failed to provide the Claimant with a safe system of work or equipment;

Failed to restrict the Claimant to light office duties by reason of his pre-

existing back injury;

Exposed the Claimant to risk of further injury when carrying out duties in

the field;

Failed to take protective measures reasonably required for the Claimant’s

safe access to and from clients’ homes by way of temporary platform;

5 | P a g e

Failed to provide the Claimant with personal protective equipment

reasonably required for his safe access to and from clients’ homes by way

of safety water resistant non-skid boots;

Exposed the Claimant to risk of injury while he was walking from one

client’s house to another;

Failed to warn the Claimant about the risk of his slipping on the unsteady

terrain and thereby suffering injury;

Failed to prevent the Claimant’s slip and resultant injury or exacerbating

his pre-existing back injury;

Caused the Claimant to slip and suffer injury or exacerbating his pre-

existing back injury.

The Defence

The Defendant denies that the Claimant was a Perifocal Operator and avers that he was a

Perifocal Operator Trainee since 2003. According to the Defendant, the difference was

that the Perifocal Operator is a permanent employee while the Perifocal Operator Trainee

is a regular continuous employee.

In its Defence, the Defendant avers that on the 28th

August 2007 the Claimant did not

report to work, but that on the 27th

August 2007 the Claimant reported for duty and was

assigned to thermal fogging at Good Hope Street. On returning from the exercise, the

Claimant walked with a limp and indicated to Mr. Gerald Baptiste that he had skidded.

However, in closing submissions the Defendant indicated that it was not being denied

that the incident of 28th

August 2007 caused the Claimant’s injuries. However, the

Defendant’s case is that there was no breach its duty of care as it took all reasonable care

to provide a safe system of work and equipment for the Claimant.

6 | P a g e

Specifically, the Defendant alleges the following particulars of reasonable care in relation

to this incident:

The provision of equipment to the Claimant for the purpose of carrying

out the thermal fogging exercises;

The provision of sufficient training to the Claimant in the use of thermal

fogging machine in a thermal fogging exercise;

The provision of training and general instructions to the effect that the

thermal fog is to be applied around the house and that the machine should

simply be raised to allow the thermal fog to rise in instances where the

houses are high;

The provision and general instructions and/or the establishment of a

general practice that workers are to avoid situations in the field that appear

to be unsafe and to report same to the supervisor.

Further, it was denied that the Claimant’s doctor recommended that he be assigned to

light office duties. The Defendant avers that the Claimant requested that he be placed on

light office duties and that this request was denied for the reason that there were no light

duties for a perifocal worker. As such, the Claimant accepted the risk of continuing to

work as a perifocal worker. On the 10th

June 2010, the Claimant was thus dropped off

with other workers at Good Hope Street, Sangre Grande. When the Claimant was picked

up he complained to Mr. Anton Pierre, the Charge Hand Supervisor that he had fallen.

The Defendant avers in relation to this incident that reasonable care was taken to provide

a safe place and system of work for the Claimant in the following way:

The Claimant’s duties on 10th

June 2010 were not the same as the duties to

which he was previously assigned on 27th

August 2007. Since he was no

longer required to operate a thermal fogging machine. In June 2010, the

Claimant was assigned to inspect premise for breeding mosquitoes;

7 | P a g e

The Claimant was usually dropped off by a vehicle in the vicinity of the

houses to which he was assigned to inspect. He was required to carry a

haversack, average weight of approximately 5 to 6 lbs, containing abates

and granules. He was required to inspect around households, place

granules and/or abate in water, advise households as the condition of the

premises and make an entry on a house card;

The Claimant and other workers were always advised not to enter

premises that they deemed to be unsafe and/or to depart from premises

once they regarded same as being unsafe;

The practice was that the vehicle would drop off the Claimant and the

other workers at various points and would remain in the area to pick them

up;

The practice was that the Claimant and the other workers were not

required to work in the rain. In case of rain the Claimant and other

workers would find a safe place to shelter and wait for the vehicle to pick

them up.

The Defendant further claims that any injury sustained by the Claimant was as caused by

or contributed to by his own negligence by:

Failing to adhere to instructions and best practices of the Defendant’s servant

and/or agents with respect to thermal fogging, that is, that the thermal fog is to be

applied on the ground level around homes;

Failing to have any or any proper regard to his own safety with respect to

climbing onto a balcony with no rails in order to carry out the thermal fogging

exercise;

Failing to have any or any proper regard for his own safety with regard to walking

on wet, unsteady surfaces;

Failing to follow the advice of his doctor.

Issues

8 | P a g e

There is no dispute that a duty of care arose. Although there appears to be a discrepancy

on the pleaded case and the evidence of the Claimant on the date the first incident is

alleged to have occurred (27th

or 28th

August 2007), it does not appear that this is an area

of contention as the Defendant has admitted that the incident did in fact occur. Thus, the

issues for consideration by the court are:

Whether the Defendant was in breach of its duty of care to the Claimant in

relation to both incidents.

If the answer to (i) above is yes for either or both incidents, whether the Claimant

was contributorily negligent in either case.

What measure of damages, if any, is the Claimant entitled to?

The First Issue

The Law

An employer owes a duty to take reasonable care for the safety of its employees. An

employer does not undertake that there will be no risk, but that such risks as there are,

will be reduced so far as is reasonable. This duty is both a common law and statutory

duty. For the purpose of comparison only (the Claimant not having pleaded breaches of

the statute), statutorily, an employer’s duty encompasses all those at common law.

Section 6 of the Occupational Safety and Health Act Chap 88:08 (‘the Act’) provides

for the general duties owed to an employee by an employer. Section 6(2) specifies the

following:

“(2) Without prejudice to the generality of an employer’s duty under subsection (1),

the matters to which that duty extends include in particular—

(a) the provision and maintenance of plant and systems of work that are,

so far as is reasonably practicable, safe and without risks to health;

9 | P a g e

(b) arrangements for ensuring, so far as is reasonably practicable, safety

and absence of risks to health in connection with the use, handling,

storage and transport of equipment, machinery, articles and substances;

(c) the provision of adequate and suitable protective clothing or devices of

an approved standard to employees who in the course of employment are

likely to be exposed to the risk of head, eye, ear, hand or foot injury, injury

from air contaminant or any other bodily injury and the provision of

adequate instructions in the use of such protective clothing or devices;

(d) the provisions of such information, instruction, training and

supervision as is necessary to ensure, so far as is reasonably practicable,

the safety and health at work of his employees;

(e) so far as is reasonably practicable as regards any place of work under

the employer’s control, the maintenance of it in a condition that is safe and

without risks to health and the provision and maintenance of means of

access to and egress from it that are safe and without such risks;

(f) the provision and maintenance of a working environment for his

employees that is, so far as is reasonably practicable, safe, without risks

to health, and adequate as regards amenities and arrangements for their

welfare at work; and

(g) compliance with sections 7, 12, 37, 46, 75 and 76, Parts III and IX and

such other duties that may be imposed on him by this Act.”

An employee accepts the inherent risks that cannot be avoided by the exercise of such

reasonable care and skill on his employer's part. An employee who is aware that there are

special risks to him which may make injury inevitable may undertake to run those risks

without there being recourse to his employer should injury occur: Munkman: Employer’s

Liability at Common Law, Chapter 4 para 4.60. In Withers v Perry Chain Co

Ltd [1961] 1 WLR 1314, CA Devlin LJ explained:

10 | P a g e

“The relationship between employer and employee is not that of schoolmaster and

pupil … the employee is free to decide for herself what risks she will run … if the

common law were to be otherwise it would be oppressive to the employee by

limiting his ability to find work, rather than beneficial to him.”

In Withers (supra) an employee was specifically asked to do work which she knew would

expose her to cutting oil, when such exposure was likely to cause her extensive

dermatitis. The employer's precautions were reasonable so far as the general run of

employees was concerned. It was held that the employer had no duty in such a case to

refuse employment, and that when dermatitis arose the employee could not successfully

claim for it.

In Hatton v Sutherland [2002] 2 All ER 1 at para 34 Hale LJ in upholding Withers said:

“In principle the law should not be saying to an employer that it is his duty to sack

an employee who wants to go on working for him for the employee's own good”.

In that regard it also helpful to consider that the statute appears to affirm the general

principle established by the common law in that an employee is also statutorily bound to

refuse work in certain situations. Section 15 of the Ac sets out these circumstances as

being where:

(a) there is serious and imminent danger to himself or unusual circumstances

have arisen which are hazardous or injurious to his health or life;

(b) any machine, plant, device or thing he is to use or operate is likely to

endanger himself or another employee;

(c) the physical condition of the workplace or the part thereof in which he works

or is to work is likely to endanger himself;

11 | P a g e

(d) any machine, plant, device or thing he is to use or operate or the physical

condition of the workplace or part thereof in which he works or is to work is in

contravention of this Act or the Regulations made under it and such contravention

is likely to endanger himself or another employee.

Further, by section 10, the employee has a statutory duty to take reasonable care for his

safety and that of his coworkers:

(1) It shall be the duty of every employee while at work—

(a) to take reasonable care for the safety and health of himself and of

other persons who may be affected by his acts or omissions at work;

(b) as regards any duty or requirement imposed on his employer to co-

operate with him so far as necessary to ensure that that duty or

requirement is performed or complied with;

(c) to report to his employer, any contravention under this Act or any

Regulations made thereunder, the existence of which he knows;

(d) to use correctly the personal protection clothing or devices provided

for his use;

(e) to exercise the discretion under section 15 in a responsible manner;

and

(f) to ensure that he is not under the influence of an intoxicant to the extent

that he is in such a state as to endanger his own safety, health or welfare

at work or that of any other person.

An employer must however take into account any special weakness or peculiarity of the

worker of which the employer knows or ought to know. Thus in Coxall v Goodyear

Great Britain Ltd [2003] ICR 152, Simon Brown LJ, while accepting that it all depended

on the circumstances, suggested that employers might remain liable for injury from falls

12 | P a g e

if, for instance, they retained as spidermen employees whom they knew to suffer

intermittently from vertigo or epileptic fits.

The onus is on the claimant to prove causation on a balance of probabilities: Bonnington

Castings v Wardlaw [1956] AC 613; see also Wilsher v Essex Area Health

Authority [1988] AC 1074 (per Lord Bridge at 1087); Gregg v Scott [2005] UKHL 2, per

Lord Nicholls.

In order to recover damages for negligence, a claimant must prove that but for the

defendant's wrongful conduct he would not have sustained the harm or loss in question.

He must establish at least this degree of causal connection between his damage and the

defendant's conduct before the defendant will be held responsible for the damage:

Munkman: Employer’s Liability at Common Law, Chapter 3 para 3.12.

Thus, the question that the court ought to answer is whether the risks intrinsic in the

position held by the Claimant were reduced by the Defendant so far as reasonable thereby

facilitating the determination of whether the Claimant has successfully proven breach of

duty of care on the part of the Defendant.

The Claimant’s Evidence

The sole evidence on behalf of the Claimant’s case was given by the Claimant himself.

He testified that although he was taught how to operate the dynofogging machine, he

never received any safety training as a Perifocal Operator trainee. Further, he denied that

there was ever a policy that the dynofogging machine should be raised to allow the fog to

rise where the houses were high.

13 | P a g e

Although the Claimant pleaded that he was a Perifocal Operator, he testified that he was

in fact a Perifocal Operator trainee. The Defendant averred that the Claimant was a

Perifocal Operator trainee. It was the Claimant’s evidence that as a Perifocal Operator

trainee, he is required to work alongside a Perifocal Operator and not on his own.

However, the Claimant gave evidence that when he began working as a Perifocal

Operator in 2002 he worked in Arima for two months and was then sent to Sangre

Grande where he only worked alongside a Perifocal Operator for six months.

Subsequently, he worked on his own for five years before the accident.

According to the Claimant, the usual practice when on field was that a co-worker would

walk ahead of and inform the occupants of the houses that they were spraying the area

while ensuring that the yard and the house was free from any imminent dangers. The

person in operation of the dynofogging machine would then enter the yard and spray

around and in the houses.

In relation to the first incident, the Claimant testified that he was in the company of Mr.

Rafael Francis. He entered the yard of a house after the indication that it was safe to do so

to spray using the dynofogging machine. He gave evidence that he walked up onto the

verandah of the house which was about five feet off the ground with no rails. He walked

around the verandah spraying and went around the house and it was while walking that

he slipped off and fell to the ground on his buttocks. It was as a result of this fall that the

Claimant alleges he suffered continuing pain even up to the time of the second incident.

In cross examination the Claimant testified that he could not see where he was placing his

foot because of the smoke from the dynofogging machine and the protective mask. He

explained that the mask always fogs up from sweat which hampered their ability to see.

The Claimant also gave evidence in cross examination that he was instructed that he

should walk around the houses with the machines and raise the nozzle. Further, he

admitted that he ought to be conscious of his own safety and assess the surroundings

before proceeding.

14 | P a g e

In relation to the second incident the Claimant testified that he visited Dr. Bedayise for

the injuries sustained from the first incident. The Claimant’s evidence was that based on

the report prepared by Dr. Bedayise and his conversation with the doctor, he formed the

view that he needed to have surgery on his back and that in the interim he should only

engage in light duties, as such he requested of his employer that he be placed on light

duties. By letter dated 25th

November 2009, his request for light duties was denied. The

reason given for the denial was that there were no light duties assignable to a Perifocal

Operator. By the same letter the Specialist Medical Officer indicated to the Claimant that

he needed to have “urgent surgery instead”.

The Claimant testified that he could not afford to have the surgery privately and as such

had to await a surgery date from the hospital. In the interim, since his sick leave had

come to an end, he returned to work. The Claimant admitted that he was taken off the

operation of the dynofogging machine but was still required to do field work and was

tasked with placing granules and abates at the homes of the clients. According to the

Claimant the granules and abates was carried in a bag strapped to his back and he

approximated it weighed 15 pounds. It was during such an assignment that the Claimant

alleges he exacerbated his injury when he slipped on the uneven terrain within a client’s

yard. Notwithstanding his evidence in chief that he slipped in the yard of a house, he

testified in cross examination that he slipped in the road and not the yard. According to

the Claimant, he did not fall but his legs spread apart and he felt instant pain shoot

through his back and legs.

The Defendant’s Evidence

Giving evidence for the Defendant were Gerald Baptiste, Newton Dookhantee, Anton

Pierre and Mark Dookeran.

15 | P a g e

Mr. Baptiste is a Perifocal Operator and worked with the Claimant at the material time.

Mr. Baptiste testified that he was assigned to go out with the thermal fogging team on the

day of the first incident. Mr. Baptiste gave evidence that although he did not see the

Claimant fall, the Claimant told him he fell after the incident and that he was in pain. Mr.

Baptiste then told Mr. Deonarine Singh that the Claimant needed to go to the hospital.

Mr. Baptiste testified that the house in which the Claimant fell did not have a railing but

that the policy for high houses was to simply raise the machine and let the smoke go up.

In cross examination, he testified that it was a policy that when the team goes to a house

to spray (interpreted by this court to mean thermal fogging), if there exists a balcony, no

worker is permitted to go onto the balcony to perform duties. Further, he gave evidence

that if the premises looked unsafe the workers would not be permitted to enter at all. In

cross examination Mr. Baptiste explained that the notifier (the person who goes ahead of

the worker operating the machine and informs the occupants of the house of the spraying)

does not assess the danger for the worker operating the machine, but that each worker

usually assesses the area himself.

Although Mr. Baptiste gave evidence that he returned to the house where the Claimant

fell to assess the area, it was borne out of evidence during cross examination that he did

not know the exact area of the premises where the incident occurred. Thus, although Mr.

Baptiste testified that when he got back to the house to do his inspection he did not

observe the walkway to be slippery or the balcony to be high, this has to be taken in the

context of his previous answer. It stands to reason that if he had not observed the area

where the Claimant fell then he could not say whether the said area was wet or whether

the balcony was high. In this regard he subsequently admitted that he was not aware of

what would have caused the Claimant to slip. The evidence of this witness in so far as it

purports to contradict the evidence of the Claimant is of no value to the court and the

court shall attach no weigh to it.

Mr. Dookhantee is a Health Control Officer II at the Guaico Field Station, Guaico,

Sangre Grande and held that position at the time of the first incident. He does not directly

16 | P a g e

supervise the Claimant but gave evidence of, inter alia, the procedure for thermal

fogging.

Mr. Dookhantee testified that the workers on the thermal fogging team are instructed to

work around the houses and are prohibited from going into the houses. Further, the

workers are instructed to lift the machine so that the smoke would get into tall houses.

Accordingly, Mr. Dookhantee gave evidence that the Claimant ought not to have been on

a balcony five feet above ground.

Mr. Pierre is a Charge Hand Supervisor with the Ministry of Health Insect Vector Control

Division and directly supervises Perifocal Operators on the field. He was the Claimant’s

supervisor at the time of the second incident. He was not however the supervisor at the

time of the first incident.

Mr. Pierre’s evidence was that on the 10th

June 2010 the Ministry vehicle dropped the

Claimant and other workers off at Good Hope Street around 8:15 a.m. He observed that

the weather was cloudy. In cross examination, Mr. Pierre explained that he was not with

the Claimant when he fell but was with other workers in the area. When rain started

falling, he began picking up the workers. Mr. Pierre testified that this was approximately

10:25 a.m. When the Claimant came into the vehicle, he informed him that he inspected a

yard and fell. In cross examination, Mr. Pierre testified that he did not take the Claimant

to the hospital upon the complaint being made nor did he investigate the area the fall is

alleged to have happened.

Mr. Pierre gave evidence that the haversack (bag which the Perifocal Operator carried

with granules and abates) in fact weighed approximately 3 to 5 pounds. This contradicts

the evidence given by the Claimant that it weighed approximately 15 pounds. In this

regard the court notes that the person who actually carries the haversack on a daily basis

is the Perifocal Operator and there is no evidence that the Charge Hand Supervisor carries

a similar haversack. It is therefore reasonable to conclude that in those circumstances a

17 | P a g e

more accurate approximation of the weight of the bag is to be had from the evidence of

the Perifocal Operator and the court so finds.

Mr. Dookeran was an Acting Public Health Inspector II attached to the Insect Vector

Control Division, Guaico Field Station. He explained in cross examination that he was

indirectly responsible for the thermal fogging team as there would usually be an

immediate supervisor for the team. In his evidence, Mr. Dookeran testified that the

difference between a Perifocal Operator and a Perifocal Operator trainee is that the

former is a permanent employee and the latter has the status of a regular continuous

employee. According to him, the Claimant was a Perifocal Operator trainee since 2003.

For the purpose of this claim, this distinction is in the court's view irrelevant.

Mr. Dookeran testified that the procedure for thermal fogging is such that the fog is

applied around the building and not inside the building. He clarified in cross-examination

that once the worker is on the verandah he is considered to be inside of the house. He

explained that it was so because the flames from the thermal fogging machine can easily

ignite curtains within buildings and cause damage to homes. Further, he testified that a

fall of the nature described by the Claimant would result in the person falling being burnt

by the machine. During cross examination, Mr. Dookeran gave evidence that prior to

entering the system when persons are selected as Perifocal Operators a training session is

conducted by Public Health Inspectors. In relation to the use of the dynofogging machine

the Health Control Officer II usually does in-house training with the Perifocal Operators.

Mr. Dookeran’s evidence was that because the Claimant’s job did not require working at

heights, no safety harness was provided. Further, since the home was a private residence,

the Ministry could not put up guard rails on the property nor could they construct safety

mechanisms.

Mr. Dookeran testified in cross examination that if an incident occurs on site, the

immediate supervisor on site (Charge Hand) is suppose to report it to his immediate

supervisors, the Health Control Officer 11 who would have made his remarks on the

18 | P a g e

report, forward it to the Health Control Officer 111 who would then make his remarks

and forward it to him. He would in turn make his remarks and forward it to the Public

Health Inspector 111 who is based at the Head Office at St. Joseph. However, in relation

to the first incident Mr. Dookeran was informed by the Health Control Officer 11 that he

had made an oral report to the Health Control Officer 111. Thus in cross-examination,

Mr. Dookeran stated that the proper reporting procedure was not followed.

Submissions

Defendant’s Submissions

The Defendant did not deny that there is a non-delegable duty to ensure that a safe system

of work and equipment were provided to the Claimant. However the Defendant submitted

that there is no absolute obligation upon employers to devise a system for their

employees which will be free of risk. Accordingly, the only duty is to take reasonable

steps to provide a system which will be reasonably safe, having regard to the dangers that

are necessarily inherent in the operation.

In this regard, the Defendant submitted that the evidence of Gerald Baptise, Mark

Dookeran and Newton Dookhantee supported its case that the necessary equipment for

the carrying out of thermal fogging (dynofogging) exercises and sufficient training were

provided to the Claimant in the use of a thermal fog machine in a thermal fogging

exercise. Further, that the evidence shows that the Claimant was given general

instructions to the effect that the thermal fog is to be applied around the house and that

the machine should simply be raised to allow the thermal fog to rise in instances where

the houses are high. Finally, the Defendant argued that the known general practice is that

workers should avoid situations in the field that appear to be dangerous.

The Defendant therefore submitted that it was not foreseeable that the Claimant would be

carrying out spraying on a five-foot balcony and as a result the Defendant did not breach

its duty of care to the Claimant in this regard. The Defendant also argued in the

19 | P a g e

alternative that the operator is allowed to make judgment calls while in the field, as to

whether he would proceed with a certain job. It was submitted that it is natural and

reasonable to leave this decision to the operator since it is not a complicated process and

the act of spraying takes place at different homes on a daily basis. As such the operator

will be called upon to make frequent on-the-spot decisions as to the best way to proceed

with the exercise, and sometimes, whether to proceed at all. The Defendant concluded

therefore that in this case, the decision was best left to the operator and the Defendant in

so doing satisfied his duty of care to the Claimant.

With respect to the second incident the Defendant submitted that it advised the Claimant

that there were no light duties for his post and instructed the Claimant to have the surgery

urgently. Notwithstanding this representation the Claimant voluntarily returned to work.

It was therefore submitted that the Defendant discharged its duty to the Claimant when it

sought to do all that it could to provide less onerous working conditions for the Claimant,

since there was none there was nothing further that could have been done for the

Claimant.

The Defendant also in its submissions raised the issue of causation in relation to the

second incident, that is to say, whether the injury sustained after the second incident was

as a result of the acts of the Defendant. The Defendant also accepts that if it was

reasonable to foresee some injury, however slight, to the Claimant owing to some

peculiar susceptibility (eggshell principle), then the Defendant is answerable for the full

extent. However, it was contended that the rule applies only when the claimant’s pre-

existing hypersensitivity is triggered into inflicting the injury complained of, or an

existing injury is aggravated by the defendant’s act (Clerk and Linsdell at paragraph 2 –

158 to159).

The Defendant argued that the Claimant’s pleaded case that the injuries suffered by the

Claimant were as a result of the second incident of July 2010 is not supported by his

evidence. The Defendant noted that the Claimant relied on the reports of Dr. Igbino

20 | P a g e

Osagie dated 18th

June 2011, Dr Bedaysie dated 29th

January 2010 and MRI reports dated

17th

May 2011 and 13th

June 2009. It was the Defendant’s contention that the report of

Dr. Bedaysie dated 29th

January 2010 refers to a visit by the Claimant in November 2009

and both dates pre-date the July 2010 incident. Further, none of the aforementioned MRI

reports have been presented to the court in the Claimant’s evidence. The Defendant also

noted that the Claimant exhibited a report from Dr. Rani with respect to an MRI done on

3rd

March 2011 (DA 9). However, the Defendant stated that this MRI was done after the

Claimant’s surgery in relation to the injury sustained from the first incident and, as such

does not aid the court in determining whether the injuries pleaded with respect to the

second incident were actually suffered by the Claimant as a result of that incident. In the

circumstances the Defendant submitted that the Claimant has not discharged his duty of

proving that he suffered the injuries pleaded in relation to the second incident.

Claimant’s Submissions

The Claimant submitted, in relation to the first incident, that the evidence of the

Defendant failed to establish that there was any training and or general instructions issued

to the Claimant and failed to establish that it was not reasonably foreseeable that the

Claimant would have fallen from a five foot high balcony.

Further, it was submitted in relation to the second incident that the Defendant’s assertion

that it discharged its duty to the Claimant is untenable and unsupported by the

documentary and/or viva voce evidence of the Defendant.

The Claimant contended that the Defendant knew and ought to have known that the

Claimant was injured and in need of “urgent” medical attention and notwithstanding this

the Claimant was assigned to continued duties in the field exposing him to the risk of

further injury. The Claimant also argued that no efforts were made by the Ministry of

21 | P a g e

Health to expedite the Claimant’s surgery at a Public Hospital. As such the Claimant

submitted that the Defendant failed in its duty of care to the Claimant when they rejected

his request for light duties and placed him in the field.

The Claimant contended that the Defendant’s evidence disclosed the following:

No one could identify any training which was conducted with the Claimant on

the use of the dynofogging machine; the words used by Mr. Dookhantee were

“probably” and “guess”

That the notifier who accompanies the Claimant is responsible only for

ensuring that occupants exit their houses and take safety precautions he is not

responsible for checking those premises for dangers to the dynofogger;

No one inspected either premises on 28th

August 2007 or 10th

June 2010 to

determine whether it was safe for the Claimant to enter;

There was no warning or instructions given to the Claimant before he entered

either premises that either he should not or that there was a danger created on

either premises that he should avoid; in fact quite the contrary the Claimant

was given the go ahead by the notifier to enter the premises on 28th

August

2007;

There was no supervision conducted by the Claimant’s employers during the

performance of his duties. In fact on both occasions the supervisors were

elsewhere;

Although the Claimant and his colleagues perform their work at the premises

of third parties no one at the Ministry of Health is responsible for checking for

any dangers on those premises.

According to the Claimant, the employer’s duty of care usually falls under four heads: the

provision by the employer of a safe and competent staff, safe and adequate equipment,

22 | P a g e

plant and machinery, safe place of work and a safe system of work: Clerk and Lindsell

on Torts 20th edition paragraph 13:07.

The Claimant submitted that a safe system of work describes (i) the organization of the

work; (ii) the way in which it is intended the work shall be carried out; (iii) the giving of

adequate instructions (especially in the case of inexperienced workers); (iv) the sequence

of events; (v) the taking of precautions for the safety of workers and at what stages; (vi)

the number of persons required to do the job; (vii) the part to be taken by each of the

various persons employed; and (viii) the moment at which they shall perform their

respective tasks. It was also argued that it may include such matters as the physical layout

of the job, the sequence in which the work is to be carried out, the provision in proper

cases of warnings and notices, and the issue of special instructions (General Cleaning

Contractors Ltd v Christmas [1953] AC 180). Thus it was submitted that the Defendant’s

submission that it was reasonable for the Ministry to leave to the decision to the Claimant

whether to enter particular premises is inconsistent with the Christmas case in that

leaving the decision to the employee cannot exculpate the employer.

The Claimant submitted thus that the Defendant would be liable to the Claimant if:

They failed to inaugurate the Claimant and maintain a safe system of work;

they failed to take precautions for the safety of the Claimant in that they failed

to issue and/or provide the necessary safety instructions to the Claimant;

Failed to provide the Claimant with warnings and/or notices and issue special

instructions;

Left the decision to the Claimant to exercise the necessary pre-caution without

adequate instructions.

The Claimant argues that none of the Defendant’s witnesses indicate with any specificity

when the instructions or warnings were given to the Claimant that he should spray the

thermal fog only into the air or that he should not have walked unto the verandah. Further

23 | P a g e

that none of the Defendant’s witness could attest to any training session conducted by the

Defendant in which those general instructions and/or warnings were given to the

Claimant. The Claimant noted that while Mr. Dookeran testified in cross examination that

there was a Perifocal manual given to all Perifocal Operators, no booklet or manual

containing any instructions or warnings to the Claimant were presented in evidence. In

those circumstances the Claimant concluded that the evidence of the Defendant

demonstrated that the Defendant failed in its duty to provide a safe system of work.

In addressing the Defendant’s contention that that the Claimant was not required to

perform his job in the manner that he did, in that he was not required to ascend the

balcony of the premises while dynofogging, the Claimant relied on the case of Tajo

Beharry v BWIA International Airways Limited Civil Appeal No 27 of 2003. In

Beharry (supra) the Court of Appeal allowed the appeal and in so doing Mendonca JA

expounded at para 29:

“To argue that the Respondent is not liable because the Appellant was not

required to be where he was at the time he was injured is in the circumstances not

factually correct. It is also a technical argument and one that is not sound in

law…the fact of the matter is that the Respondent should have had in their

contemplation that flight engineers including those from a crew going off duty

might go under the aircraft in the execution of their duties. The Respondent ought

therefore to have such persons in their contemplation and ought to have

reasonably foreseen that its conduct could expose such persons to personal

injury”

And at para 32:

24 | P a g e

“…it seems to me that the standard of care required of the Respondent would

have been no less than to warn the Appellant that the C hydraulic system is about

to be pressurized. On the evidence the only possible conclusion is that he was not

warned.”

The facts of the case was that the Appellant had been a flight engineer or third Pilot who

sustained an injury to his eye when he came off the aircraft after it landed in St. Lucia

and went under the aircraft in the vicinity of the hydraulic bay and a stream of jet fluid

went straight into his right eye.

In applying the decision to the present case, the Claimant argued that the Defendant

ought reasonably to have foreseen that the Claimant in the performance of his duty would

get as close as possible to the houses that he was dynofogging and that he could be

standing on a verandah to so do.

The Claimant further argued that the standard of care required of the employer must also

allow for the fact that employees may be inadvertent or become heedless of the risks

particularly where they are encountered on a regular basis. It was argued that this

involves taking reasonable steps, not only to instruct employees of safety procedures, but

also to ensure that the procedure is followed. The Claimant contended that there was no

evidence from the Defendant that the Claimant received the requisite safety training or

supervision to ensure that the procedures were followed. The Claimant concluded that

even if the court finds that the Claimant in the performance of his duty inadvertently

failed to notice the risk associated with stepping onto the verandah while dynofogging,

the Defendant is not absolved from liability as the fact of prescribing a safe system of

work does not sufficiently discharge an employer’s duty. It ought to also be accompanied

by steps reasonably to ensure it is followed, such as, for example, inspection and

supervision: Charlesworth and Percy on Negligence at paragraph 11-76.

Findings

25 | P a g e

The First Incident

The sole area of contention is whether the Defendant discharged its duty to the Claimant.

The Claimant says the Defendant did not do all that was reasonable, while the Defendant

says it did.

The court is of the view that the Defendant was required to provide adequate information,

instruction, training and supervision as is necessary to ensure the safe fulfillment of the

job by the Claimant. Thus, the Defendant would have discharged its burden if on the

evidence it is found that there had been training and instructions on the use of the

machine and adequate supervision.

The bulk of the Defendant’s evidence was that training on the use of the dynofogging

machine is provided to all Perifocal Operators, that all Perifocal Operators are instructed

to stay on the outside of houses and that the machine should simply be raised to allow the

thermal fog to rise in instances where the houses are high.

While the Claimant denies that he received safety training as a Perifocal Operator trainee,

he specifically stated in his evidence that he did receive training on how to use the

dynofogging machine and further that he worked alongside a Perifocal Operator for six

months when he began working as a Perifocal Operator trainee.

It would be obtuse to say that one received training on the use of a machine but that such

training did not include safety training on its use. What is more, in cross examination the

Claimant testified that he did go on a two day training course on how to operate the

machine, how to use the machine and how to clean the machine when the job is

completed. Further, the Claimant testified that he received a basic training on the field of

how spraying of the houses is done. The Claimant’s submission thus that no or inadequate

training and/or general instructions were issued to the Claimant appears to this court in

26 | P a g e

light of the overwhelming evidence to the contrary including that emanating from the

evidence of the Claimant himself to be unfounded. This court therefore accepts that there

was adequate training not only in the use of the machine but also with regard to the

procedure to be adopted when visiting premises.

Further, while the Defendant’s evidence of the existence of a Perifocal Operator manual,

(a copy of which had been provided to the Claimant) would have been bolstered by the

production of such a manual, the court is not of the view that the absence of such a

manual in evidence is fatal to the Defendant’s case as the viva voce evidence is more than

satisfactory.

Additionally the court is of the opinion that the case of Beharry (supra), can be

distinguished from the present case. Unlike in the Beharry case the Defendant is not

saying that they did not have a duty to warn the Claimant against working at heights

because of unforeseeability. They allege that the job by its very nature came with certain

dangers (curtains catching afire, damage to property because of flames from the machine,

potential burning of the carrier of the machine and the general weight of the machine) so

that they did warn, instruct and train on its use. According to the Defendant it is because

of the Claimant's failure to apply his training and to heed the warning given that the

incident occurred. As a consequence the Defendant is not liable. The Defendant argued

that since working at heights did not come within the system of work of any operator, the

danger of injury was not reasonably foreseeable and as such no further duty was owed.

The circumstances and arguments in the instant case are clearly distinguishable from that

of Beharry in these circumstances.

The court however agrees with the Claimant’s submission that the fact of prescribing a

safe system of work does not sufficiently discharge an employer’s duty, unless it is also

accompanied by steps reasonably to ensure it is followed, such as, for example,

inspection and supervision.

27 | P a g e

The evidence of Mr. Baptiste was that on the day of the first incident, he and Mr.

Deonarine Singh were both in charge of the workers dispatched to spray in the Good

Hope Street Area. He gave evidence in cross examination that on that day he and Mr.

Singh had two teams of workers, where he was in charge of three men and Mr. Singh was

in charge of the other three. Mr. Baptiste explained that he, Jerry Francis, and the

Claimant were assigned to Good Hope Street. Prior to the incident Mr. Baptiste said he

had gone over to Neil Street to check on the other workers when on returning he was

informed that the Claimant had “skidded” and was in pain.

Mr. Dookeran gave evidence that the Claimant’s supervisor was in ‘close proximity’ to

the fogging but does not name the supervisor on that day. Further, although Mr.

Dookhantee testified that the Claimant’s supervisor is Mr. Pierre, it was Mr. Pierre’s

evidence that he had not been the Claimant’s supervisor on the day of the first incident,

but the day of the second incident.

Thus the only witness for the Defendant giving evidence before the court acknowledging

any supervisory role was Mr. Baptiste, who, although he claims to be in a supervisory

position, was also a Perifocal Operator at the time of the incident. The court notes that in

the evidence of Mr. Dookhantee he stated that the Claimant’s supervisor is a Charge

hand.

So that there is no evidence of a direct supervisor performing any supervisory duties on

that day. This is quite an unacceptable state of affairs on the Defendant's case. The clear

inference is that there was no such supervisor present. Having regard to the nature and

inherent danger involved in the operation of the defogging machine the presence of a

supervisor on the scene at the time of the fogging to ensure compliance with all safety

processes in the operation of the machine was integral. It is the evidence that at times the

operator's vision is impaired by the frosting up of his goggles because of sweat and that a

28 | P a g e

fall with the machine may lead to burns being sustained by the operator. Yet the

Defendant failed to provide a supervisor or any other employee who would accompany

the operator in real time while he fogs to ensure that his passage is safe and does not

present a danger to him. This state of affairs is in the court's view wholly unacceptable

and falls short of a safe system of work. Additionally, in these circumstances the court is

also of the view that the Defendant failed to provide adequate supervision to the Claimant

to ensure that tasks were performed in the manner instructed.

Further, the court also finds that the Claimant did not go out onto a balcony as alleged. It

is the evidence of the Claimant that he went unto a verandah which was about five feet

off the ground. A verandah is quite different to a balcony. The Oxford English dictionary

describes a verandah as being a roofed structure with an open front along the outside of a

house level with the ground floor. A balcony however is described as an enclosed

platform projecting from the outside of a building. The court is of the view that the

Claimant has proven that he in fact slipped and fell from a verandah as the evidence is

that the house was a one storey house and that accessing the verandah on the side of the

house was the only way to get close enough for the thermal fogging to achieve its

purpose of going into the house. In those circumstances it is foreseeable that a Perifocal

Operator would have to proceed unto the verandah in order to perform his duties.

The Defendant was therefore in breach of its duty in relation to the first incident.

The Second Incident

Quite simply, the Claimant’s evidence was insufficient to show that the injury alleged to

have been sustained by the second incident were sustained as a result of the acts of the

Defendant.

What is more, the Claimant’s submission that the Defendant did not discharge its duty to

the Claimant in relation to this incident is unacceptable for the following reasons:

29 | P a g e

The Claimant submitted that the Defendant knew and ought to have

known that the Claimant was injured and in need of “urgent” medical

attention and notwithstanding this the Claimant was assigned to

continued duties in the field exposing him to the risk of further injury.

The fact that the Claimant’s duties changed following the first incident,

from operating the dynofogging machine to carrying the obviously

significantly lighter sack filled with granules and abates, is evidence of

the Defendant’s attempt to change the complexion of the job to take

into account the Claimant’s circumstance. Thus the court is of the view

that reasonable steps so far as possible were taken by the Defendant.

This is particularly so in light of the fact that no light duties existed for

the class of work the Claimant was employed for. The placing of

granules and abates appears on the evidence to in fact be lighter work

than what the Claimant had been accustomed to.

An employee accepts the inherent risks that cannot be avoided by the

exercise of such reasonable care and skill on his employer's part. The

Claimant was free to decide for himself what risks he will run

particularly in light of his previous injury. It is not an employer’s duty

to dismiss an employee who wants to go on working for him for the

employee's own good.

The Claimant has an obligation, both at common law and statutorily, to

take reasonable care for his own safety. He is free to refuse to work if

there is serious and imminent danger to himself or unusual

circumstances have arisen which are hazardous or injurious to his

health or life (see sections 10 and 15 of the Act above). Neither of

which appeared to have been the case here in any event.

The Claimant argued that no efforts were made by the Ministry of

Health to expedite the Claimant’s surgery at a Public Hospital. This is

30 | P a g e

certainly not a duty of an employer and the Claimant has no basis for

alleging such a duty.

The court finds therefore that the Defendant was not in breach of its duty to the Claimant

in relation to the second incident.

The Second Issue

Contributory negligence means some act or omission by the injured person which

constituted a fault, in that it was a blameworthy failure to take reasonable care for his or

her own safety and which has materially contributed to the damage caused: Munkman:

Employer’s Liability at Common Law, Chapter 6, para 6.10.

Assessment of the injured person's share in the responsibility is undertaken first through

consideration of his or her relative blameworthiness and then of the causative potency of

the relevant act/omission: Munkman: Employer’s Liability at Common Law, Chapter 6,

para 6.12; Stapley v Gypsum Mines Ltd [1953] AC 663 at 682, per Lord Reid.

In light of the court’s findings that the Claimant was instructed and trained on the safe use

of the machine, and considering that the Claimant failed to operate the machine in the

manner instructed, the court is of the view that the Claimant bears some culpability for

the injuries incurred.

The court considers the evidence of the Claimant himself that that he could not see where

he was placing his foot because of the smoke from the dynofogging machine and the

protective mask. Further, the Claimant gave evidence that it was a usual occurrence that

the mask would fogs up from sweat and that this hampered his ability to see.

31 | P a g e

It is obvious to the court that this prior knowledge of the vision impairment from both the

fog from the machine and sweat through the safety mask would have made it unsafe to

proceed unto a verandah to perform the thermal fogging task.

The contributing influence in the injuries sustained by the Claimant was therefore

substantial. In apportioning liability the court considered the above as well as the fact that

the Claimant had been working as a Perifocal Operator for some five years prior to the

incident and ought to have been more responsible considering his experience. The court

will therefore apportion liability 70% liability to the Defendant, and 30% to the Claimant.

The Third Issue

General Damages

The principles for assessing the measure of damages for personal injury are contained in

the case of Cornilliac v St. Louis (1965) 7 W.I.R 491. Wooding C.J in this case set out

the principles in assessing damages in personal injury cases for non-pecuniary loss as

follows:

(a) The nature and extent of the injuries sustained;

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

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

(d) Loss of amenities; and

(e) The extent to which pecuniary prospects were affected.

Each head will now be considered.

The nature and extent of the injuries sustained

The Claimant’s injuries were as followed:

Nerve Root irritation;

32 | P a g e

Nerve root compression;

Lumbosacral spasm with decreased range of movement;

Absent medial hamstring jerk

Decreased ankle reflex

Diminished sensation bilateral L5 dermatome

Weakness of right ankle dorsiflexion

Moderate spondylotic changes;

Osteophtic lipping L4-5

Mild diffuse annular disk bulge at L3-4;

Mild left neural foramina stenosis;

Nerve roots irritation at L3-4 and L4-5;

Diffuse annular disk bulge with focal disc protrusion at L4-5;

The nature and gravity of the resulting physical disability

The Claimant's evidence is that after the first incident he continued to experience pain in

his back and had to seek repeated sick leave from work. The Claimant was also required

surgical intervention from the injuries.

The pain and suffering endured

The Claimant's evidence is that from the moment he fell after the first incident he

experienced pain his back which continued. Painkillers did little to ease the pain. The

Claimant gave evidence that he continues to experience pain even now and is still taking

painkillers to assist in alleviating the pain.

33 | P a g e

The loss of amenities suffered

The Claimant claims he also can no longer sit or stand for long periods, lift heavy objects

or play basketball which he had previously played competitively and casually.

The extent to which the Plaintiff’s pecuniary prospects have been materially affected

The Claimant’s future pecuniary prospects have not been materially affected. He has

returned to work and was not assessed to have any permanent partial disability.

In submitting the sum which ought to be granted, the Defendant submitted the following

cases:

Dipnarine v. Attorney General CV 2008 – 3944 Master Mohammed

February 2012

The Claimant suffered lumbosacral spasms with decreased range of movements,

absent ankle and knee reflex, diminished sensation bilateral S1 dematomes,

weakness of both ankle dorsiflexion, L5/S1 radiculopathy and spondylolysthesis,

lower back pains radiating to the left knee, neurological deficit. He underwent

corrective surgery with the insertion of two pedicle screws in L5 and two screws

in sacrum plus two connecting rods. The claimant has been unable to do any

strenuous activity due to the screws in his back. He experienced loss of libido,

inability to stand, sit or walk for long periods of time and inability to engage n

sports and exercise. He was assessed with a permanent partial disability of 50%

and has been unable to return to his job as a police constable or to work in similar

environments. He endured varying degree of pain from the date of the injury to

the date of the trial. He wore a back brace to help ease the pain. He was awarded

a sum of $200,000 for pain and suffering and loss of amenity.

34 | P a g e

Rampersad v. T&TEC HCA S-923 – 1999

The Claimant suffered cervical spondylosis greater at C3/4 and lumber

spondylosis at L4/5 less L5; disc degeneration; post traumatic syndrome and scalp

neuralgia; low back and neck strain on spondyoisis and erectile dysfunction.

Immediately following the incident the Claimant suffered dizziness and

occasional blackouts. He also suffered from daily headaches and lower back pain

radiating to the right posterior thigh with numbness and neck pain. He underwent

lumber laminectomy and disectomy. There was initial improvement post surgery

but he remained with residual pain in the lower right extremity plus dizziness. He

was diagnosed with a permanent partial disability of 50%. The Claimant’s

injuries resulted in restriction of his physical and social activities since he can

only walk, sit or stand for short periods, slouches when he walks and need the aid

of a cane. Before the accident the Claimant participated in marathons, enjoyed

dances, swimming, going to the beach but is now unable to do his. His sex life

also deteriorated. Award for pain and suffering and loss of amenities was

$155,000

Antrobus v. Port Authority of Trinidad and Tobago CV 2009 – 726 Master

Mohammed September 2012

The Claimant suffered lumbar disc protrusions, foraminal compromise, diffuse

disc bulges LW/3, L3/4 and L4/5, L5/S1 diffused disc bulge with small posterior

right para central protrusion and facetal hypertrophy causing compromise of

bilateral foramina, mild effusion in both facet joints, small extradural juxta facetal

synovial cysts on left side and persistent low back and leg pains. The Claimant

underwent lumbar laminectomy surgery. The medical evidence is that the

Claimant would suffer a gradual worsening of the condition. The Claimant

suffered pain in his lower back and legs at the time of the accident and shortly

thereafter. The Claimant presented no evidence of engaging in sports or having

35 | P a g e

participated in social activities and it did not appear that the injury had any

significant adverse impact on the Claimant’s lifestyle. The Claimant was declared

medically unfit as a result of his injuries. The Claimant was awarded damages

for pain and suffering and loss of amenities of $90,000.00

The Defendant noted that therefore that the Claimant’s situation is much less grave than

the cases sited, further that there is no permanent partial disability and the Claimant has

returned to work. The court notes in addition to this that in the medical report of Dr.

Osagie dated 18th

June 2011, the doctor projected one year for recuperation. In the

circumstances, the Defendant submitted that the sum of $40,000 would be adequate

compensation.

While the Claimant agreed with the cases submitted by the Defendant, the Claimant

submitted that the sum suggested as adequate compensation did not represent an

appropriate award in light of the cases. The Claimant highlighted the following cases:

Evans Moreau v Port Authority CV 2006-03958 - the Claimant sustained

the following injuries during the course of his employment with the

Defendant;

Pain in the neck;

Radicular symptoms in both arms;

Cervical spondylosis;

Cord and nerve compression of G4/5 and C5/6;

Back pains;

Weakness in both arms;

Difficulty in climbing stairs;

Inability to stand and/or sit for short periods.

The court awarded the Claimant $200,000.00 in general damages.

36 | P a g e

Munroe Thomas v Malachai Forde, RBTT Bank Limited and NEW

(West Indies) Insurance Limited Civil Appeal No 25 of 2007. - the

Claimant sustained soft tissue injuries to his buttocks, two fractured ribs and

an L4/5, L5/S1 radiculopathy. The latter injury was diagnosed three years

after the accident and surgical intervention was performed by Dr. Bedaysie

who assessed the Claimant with a 50% permanent partial disability. The

Honourable Master Sobion accepted that the injury was caused by the

accident and after assessing the authorities awarded the Claimant the sum of

$100,000.00 in general damages. The judgment was delivered in September

2008. Further on 6th

April 2011 the Court of Appeal in a unanimous decision

affirmed leaving undisturbed the Honourable Master’s award of general

damages.

Wayne Wills v Unilever H.C.4748/2007 - the Claimant sustained a disc

herniation (in the same region of the spine as Mr. Ali). He underwent surgical

intervention and his prognosis was that he could no longer engage in his

physically demanding employment. After assessing the authorities Master

Sobion awarded the Claimant $75,000.00 in general damages.

Andre Marchong -v- The Trinidad and Tobago Electricity Commission &

Galt and Littlepage Ltd. H.C.A. CV 2008 - 04045, - the Claimant sustained a

soft tissue injury and lumbar spasm which resulted in some narrowing of the

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

root and early disc desiccation at the L5/S1 level after the chair on which he

was sitting collapsed. The Claimant complained of continuous back pain.

Justice Jones after considering the medical evidence and the authorities

awarded the Claimant, $60,000.00 for pain and suffering and loss of amenity.

Dexter Sobers v Attorney General of Trinidad and Tobago CV 2008-

04393 - the Claimant was involved in a vehicular accident and suffered the

following injuries;

37 | P a g e

Loss of lumbar lordosis (loss of the curvature of the spine);

Disc dessication and annular tear in the L4/5 and L5/S1 levels;

Diffuse disc bulge with no neural compression;

Diffuse disc bulge with small disc protusion impinging on left S1

nerve root.

The Claimant’s permanent partial disability was assessed at 20% although his

attending physician recommended spinal surgery if his condition failed to

improve. After assessing all of the evidence and authorities the Honourable

Master awarded the Claimant $80,000.00 in general damages.

The Claimant therefore submitted that that fair compensation to the Claimant is the sum

of $175,000.00.

The court accepts the cases cited by both parties and wishes to add one case which it

believes to be entirely helpful in assessing the damages to be awarded for pain and

suffering and loss of amenities:

Choon v Industrial Plant Services Ltd. CV 2006-00574 – the Court

awarded the sum of $90,000 (adjusted to $102,841 in December 2010) for

pain and suffering and loss of amenities. The main injury sustained was an

injury to the claimant's spine in the area of L5 S1. The claimant suffered

acute pain for several days after her injury and was not relieved

completely until the claimant had surgery in April, 2005. As a result of the

injury, the claimant had an operation to remove the disc L5 S1 (a

laminectomy and discectomy).

In light of all the authorities above and the range of awards for comparative injuries, the

court has also considered that whereas in the case of Choon, the injuries were somewhat

centralized, in this case there were additional injuries to the ankle area and to more than

38 | P a g e

one disc resulting in a wider gamete of injury. The court therefore considered the sum of

$130,000.00 to be adequate compensation for pain and suffering and loss of amenities

despite there being no permanent partial disability.

Future Care and Treatment

In relation to the claim for future surgery there is no evidence of the cost of any possible

surgery in the future.

The Claimant contended that an award under this head was recoverable. In this regard the

Claimant places reliance on the medical report of Dr. Osagie dated the 18th

June 2011 in

which he stated that because of the Claimant’s persistent lower back pain a further

surgery is being considered for failed back surgery syndrome. It is on this basis that the

Claimant suggested the sum of $100,000.00. This is despite no estimate being given by

Dr. Osagie, or no doctor at all for this additional surgery being considered. The only

estimate of the possible cost of back surgery was in the medical report of Dr. Bedaysie

dated 19th July 2010 in which it was projected that a surgery to the Claimant's back

would cost $41,0000.00. However, it is to be noted that this estimate had been for a

surgery already performed. The court therefore has no way of projecting the possible sum

for the surgery if needed, as the surgery has not been stated in the evidence to in fact be

required.

In Winston O'Neal v Tiger Tanks Trinidad and Tobago Limited; Anchorage Insurance

Company CV.2009-00212 the court had this to say on a claim for future surgery where

the Claimant had not pleaded it:

“The claimant is in need of remedial surgery to fix the continuing effects of his

injuries to the elbow. Dr Santana provided an estimate for open reduction and

internal fixation with bone grafting at the cost of $58,500.00. The cost of this

future surgery was not pleaded in the statement of case but this evidence was

39 | P a g e

tendered without objections. Whilst there is no claim for cost of future surgery or

therapy in the statement of claim, I accept that both Dr Santana and Dr Lousaing

(Orthopaedic Surgeons) have recommended surgery given the severity of the

injuries to his elbow. To my mind this is a claim that should have been pleaded as

set out in Mario’s Pizzeria Ltd v Ramjit 11. Nevertheless, I note the words of

Kangaloo JA in Mario’s Pizzeria Ltd v Ramjit12 that, “[W]hat consequences

follow as a result of the non pleading of the cost of the future operation depends

on whether an objection is taken to the leading of the evidence or not.” The cost of

this future surgery is allowed in the sum of $58,500.00”

This case ought to be distinguished. In the instant matter, while the sum is pleaded, there

is no evidence from which the court can make an award. The Defendant does not appear

to object to an award for this head. In error the Defendant in its submissions has

captioned a head of damages as “future surgery” but discusses instead future earnings,

which is no longer being pursued by the Claimant. Dr. Osagie has said in his report that

surgery is being considered for failed back surgery syndrome. The court also notes that

the doctor has also not been called to give evidence of the Claimant’s continuing injury or

to estimate any possible cost of surgery.

The court was guided however by the privy Council decision of Peter Seepersad v

Persad & Anor (Trinidad and Tobago) [2004] UKPC 19. Lord Carswell at para 19 on

dealing with the issue of an award for future medical treatment said:

Medical Treatment and Medication

The judge did not include any figure in respect of the future cost of medical

treatment and medication which might be required by the appellant. The Court of

Appeal did not attempt to assess such costs, and merely included "a small

40 | P a g e

amount", which was not quantified, in the award for pain and suffering and loss

of amenities. This was not in their Lordships' opinion a sufficient or appropriate

way to compensate the appellant for any loss under this head which he may

sustain.

The appellant's evidence was that his daily medication was two Valium tablets,

which cost $1.20 each, three Voltaren tablets at $8.00 each and four vitamin D

tablets at $3.00 each. He also used a gel twice a week, which cost $63.00 a time.

If this usage continued and it was shown that he needed all of these medicaments

as a consequence of the accident, the cost would be some $20,529 per annum. Mr

Ramroop referred in his evidence to several possible types of medication which

the appellant might take for pain control, with approximate costs, but it was not

established that the appellant had taken any of these. The appellant stated that he

went for massage sessions at $75 a time, which he had to suspend because of his

inability to afford the cost. Mr Ramroop also referred in his evidence to three

epidural injections at monthly intervals at $3000 each, with the possibility of

more over a period.

The evidence about the possibility of the appellant's requiring surgery in the

future was equivocal. Mr Ramroop said that disc herniation could be treated

surgically and that it was possible that the appellant might need spinal fusion

surgery if instability were found. The latter was major surgery, and he mentioned

costs ranging between $25,000 and $65,000.

It is not possible to form an accurate and verifiable estimate of the future cost of

medical treatment and medication, because so much depends on how the

appellant progresses in the future. It was not challenged that he had incurred

such expense in the past, as is shown by the inclusion in the agreed special

damage of a significant sum for medial treatment and medication. It does appear

that there is likely to be some continuing expense, even if he improves

significantly as time goes on. In their Lordships' opinion the most appropriate

way to deal with this item is to allow a figure which will reflect the possibility of

his incurring future expense of this type, on similar lines to the well-established

41 | P a g e

approach to valuing loss of employment capacity: cf such cases as Smith v

Manchester Corporation (1974) 17 KIR 1 and Moeliker v Reyrolle & Co Ltd

[1976] ICR 253. The appropriate figure in their view is $100,000 and they would

include that in the damages awarded.

In the present case, the Claimant testified that he is presently taking medication for pain.

He takes Lyrica 150 mg per day and this costs $10.00 for one and Mobick twice daily and

four Aleve per day. The Claimant does not give the cost of the Mobick and Aleve.

However, the court recognizes that there is some continuing expense in dealing with the

Claimant’s injury. Further, the medical report of Dr. Osagie indicated that there was a

possibility of future surgery because of persistent back problems even after the first

surgery. The court does not believe that it ought to shut out a litigant from compensation

where it is apparent that the injury is continuing.

The court is however tasked with projecting a sum with little to no evidence. In the

circumstances, the court is guided by the projected sum of the past surgery in the medical

report of Dr. Bedaysie dated 19th

July 2010 in the sum of $41,000.00. To this the court

will add a small amount to take into account the need for the future cost of medication.

The court therefore awards the sum of $50,000.00 for Future Care and Treatment.

Special Damages

Special Damages must be specifically pleaded and proven. The Claimant has claimed

Special Damages in the following amount:

Past earnings $24,000.00

Past expenses $1,450.00

Total $25,450.00

42 | P a g e

In his submissions the Claimant also included in his claim for loss of earnings the sum of

$80,640.00 for the period May 2011 – March 2013.

The Claimant has annexed receipts totaling the sum of $1,450.00 representing the cost of

doctor’s visits. Thus the court will allow the sum of $1,450.00 for past expenses.

With respect to the claim for loss of earnings, the Claimant testified that he applied for

National Insurance payments but he has received correspondence in which he was

informed that the Board is awaiting a letter from the Ministry of Health before

reimbursements can be made for the lost earnings. The Defendant submitted that when

the Claimant receives the letter from the Ministry that this is expected to cover his loss of

earnings. Consequently the Defendant submitted that the Claimant’s claim for past

earnings could not be substantiated.

In Anthony Williams v Particia Devonish, Compton Devonish H.C.5913/1983 the court

found that it would be unjust and unreasonable for a wrong doer to share the benefit

derived from payments to a victim under the National Insurance Act. Further, in Churkoo

Mahabir v Paramount Transport and Trading Company H.C.414/1974 the court held

that that the amount paid to the applicant by the National Insurance Board was not

"damages recovered by him" within the meaning of the provisions of S.4(4) of

Workmen's Compensation Ordinance, No.24 of 1960.

In a similar vein, the court thinks it unjust for the Defendant to bargain for the Claimant’s

reimbursement from National Insurance Board in denying the Claimant’s claim for past

earnings.

The Claimant has annexed a letter from the Insect Control Division dated 8th

June 2010 in

which it is indicated that the Claimant earns a fortnightly wage and allowance of

43 | P a g e

$1,920.00. The only evidence proffered where it is reflected that the Claimant was not

given his full wages is by letters dated 6th

June 2011 and 14th

June 2011 in which it is

indicated that for the period 21st March 2011 to 15

th May 2011 he was given half pay and

for the period 16th

May 2011 to 11th

June 2011 he was not paid.

The Claimant alleges in his evidence but has not proven that he was not paid from

September 2010 to 21st March 2011. Further, the Claimant testified in cross examination

that when he began seeing Dr. Bedaysie which was on the 11th

November 2009,

according to Dr. Bedaysie’s medical report dated 29th

January 2010.

Moreover in his cross examination the Claimant gave evidence that he was working

sometimes and when he was in pain he would “get some sick leave”. He further testified

that in November 2009 he was back to work because when he had requested light duties

it was denied. The Claimant went on to say that he was working when he took the letter

in to request the light duties.

The Claimant’s claim for loss of earnings from September 2010 to 11th

March 2011 is

therefore unsupported by his evidence. So too is his claim for $80,640.00 allegedly for

the period May 2011 to March 2013. Quite to the contrary the totality of his evidence

leads the court to believe that the Claimant had in fact resumed his duties. The court will

therefore not consider these periods as a periods for which he is entitled to recover.

The award to be made with respect to past earnings will therefore be:

21st March 2011 - 15

th May 2011 (half pay)

8 weeks (4 fortnights)

(4 x $1,920.00) ÷ 2

= $3,840.00

15th

May 2011 – 11th

June 2013 (no pay)

44 | P a g e

5 weeks (2.5 fortnights)

2.5 x $1,920.00

= $4,800

TOTAL loss of earnings = $8,640.00

The total award for special damages is therefore $10,090.00.

Interest

Interest is awarded to a party as compensation for being kept out of money that ought to

have been paid to him: Jefford v Gee [1970] 1 All ER 1202. The sum awarded is entirely

at the discretion of the court: Section 25 of the Supreme Court of Judicature Act Chap

4:01. The period from which such the interest runs and the applicable rates differ, based

on the category of damages being dealt with: Elva Dick-Nicholas v Jayson Hernandez

and Capital Insurance Company Limited HCA No: S-1449 of 2004/ CV 2006- 0103.

Future awards are not subject to interest payments. With respect to interest on the award

for pain and suffering and loss of amenities interest runs from the date the claim is served

to judgment. In relation to an award of special damages, interest runs from the date of the

accident to judgment.

The court is of the view that interest ought to be at a rate of 6% per annum on general

damages and 3% per annum on special damages.

45 | P a g e

Table of Awards

Category Award

$

General Damages:

Pain and Suffering and Loss of Amenities

Interest on Award for Pain and Suffering and

Loss of Amenities @ 6% per annum from date

of claim to judgment ($130,000.00 x 6% x

2.113)

Future Care and Treatment

Total General Damages before reduction for

contributory negligence

Total General Damages after 30% reduction for

contributory negligence

130,000.00

16,481.40

50,000.00

196,481.40

137,536.98

46 | P a g e

Special Damages:

Loss of Earnings

Past Expenses

Total Special Damages

Interest on award of Special Damages @ 3% per

annum from the date of incident to judgment

($10,090.00 x 3% x 6.083)

Total Special Damages before reduction for

contributory negligence

Total Special Damages after 30% reduction for

contributory negligence

8,640.00

1,450.00_

10,090.00

1,841.33

11,931.33

8,351.94

Prescribed Costs:

(Value of Claim - $210,412.73)

Total Costs before reduction

Total Costs after 30% reduction for contributory

negligence

40,561.91

28,393.34

47 | P a g e

Disposition

The court therefore makes the following order:

Judgment for the Claimant against the Defendant, as follows:

1. The Defendant is to pay to the Claimant General Damages for negligence

reduced by 30% contribution in the sum of $137,536.98 inclusive of

interest at the rate of 6% per annum from the date of filing of the claim to

the date of judgment.

2. The Defendant is to pay to the Claimant Special Damages for negligence

reduced by 30% contribution in the sum of $8,351.94 inclusive of interest

at the rate of 3% per annum from the date of filing of the claim to the date

of judgment.

3. The Defendant is to pay to the Claimant the Prescribed Costs of the claim

in the sum of $28,393.34.

Dated this 26th

day of September, 2013.

Ricky Rahim

Judge