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

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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