Seepersand v Persad and another (Trinidad and Tobago)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carswell |
| Judgment Date | 01 April 2004 |
| Neutral Citation | [2004] UKPC 19 |
| Court | Privy Council |
| Docket Number | Appeal No. 86 of 2002 |
| Date | 01 April 2004 |
Present at the hearing:-
Lord Bingham of Cornhill
Lord Steyn
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
Privy Council
[Delivered by Lord Carswell]
Introduction
This is an appeal from a decision of the Court of Appeal of Trinidad and Tobago given on 28 February 2002, whereby it allowed an appeal and cross-appeal from a judgment of the High Court. The High Court had awarded damages to the appellant in the sum of $290,491.00, with costs limited to one counsel. The Court of Appeal increased the award to the sum of $445,778.50, after allowing for the reduction in one item the subject of the cross-appeal. It gave the appellant half his costs of the appeal and cross-appeal, and again certified that the case was fit for one counsel only. The appellant has appealed to the Judicial Committee of the Privy Council on all issues, seeking to have the amount of the award of damages increased and to have the award of costs amended to full costs with two counsel.
The Accident to the Appellant
The appellant, who was born on 1 September 1963 and is now aged 40 years, carried on business as a taxi driver and part-time mechanic in Trinidad. On 7 October 1998 he was driving his taxi along a road in Freeport when a vehicle driven by the first respondent Theophilus Persad ran off the fly-over bridge under which the appellant was driving and fell some 25 feet on top of the appellant's taxi. In consequence two passengers in the taxi were killed, the taxi was damaged beyond repair and the appellant himself sustained injuries the subject of the present proceedings. The appellant suffered concussion in the accident, but did not have any lasting sequelae of his head injury. His main injuries were to his back, in two spinal areas. He sustained wedge compression fractures of the L1 and T12 vertebrae, which appear to have healed well without lasting effects. The L5/S1 disc was prolapsed, which has been the major cause of his continuing pain and incapacity. Immediately after the accident he complained of severe pain in the neck, thoracic and lumbar areas, and was detained in hospital for five days, after which he attended as an out-patient.
The Course of the Proceedings
The appellant commenced an action by writ of summons issued on 27 January 1999, claiming damages against the first respondent for negligence and a declaration that the second respondent Capital Insurance Ltd was bound to indemnify the first respondent against payment of any sums awarded to the appellant. The declaration sought was made by consent on 22 October 1999. Judgment was on 16 April 1999 entered against the first respondent in default of service of a defence. Damages were assessed by a judge of the High Court Lucky J at a hearing held in chambers in March 2000, when oral evidence was given on both sides and medical reports were received by the court. The judge gave his decision on the amount of damages in a written judgment on 16 June 2000, then on 26 June held a further hearing on costs and gave his decision in writing on 20 July 2000.
The appellant appealed to the Court of Appeal by notice dated 25 July 2000, whereby he claimed that the measure of damages was inordinately low and should be increased. By a notice dated the same day the respondents cross-appealed against two items in the award of damages, that for pain and suffering and loss of amenity and that for future loss. The Court of Appeal by a written judgment given by Kangaloo JA, with which de la Bastide CJ and Warner JA concurred, allowed the appeal in part, increasing the amounts allowed for special damage and future loss, and allowed the cross-appeal in part, reducing the amount awarded by the judge for pain and suffering and loss of amenity.
The Action in the High Court
At the hearing before Lucky J the parties agreed an item of special damage at $45,491.00, representing the value of the appellant's taxi and the sums which he had paid out for medical treatment, medication and the cost of travelling to receive medical treatment. The appellant gave evidence and two medical witnesses, Dr Rasheed Adam, who is qualified in neurology and neurosurgery, and Mr Stephen Ramroop, an orthopaedic surgeon, were called on his behalf. Other medical reports furnished on behalf of the appellant were admitted in evidence. The burden of the appellant's evidence, which was supported by that of the medical witnesses, was that he suffered cervical and lumbar pain to an extent which made it impossible for him to work as either a taxi driver or a mechanic. He claimed that he could not sit for the long periods necessary for taxi driving and that he could not lift heavy items, which was necessary for work as a mechanic. He alleged that he could not lift his young child or tie his shoe laces without difficulty and that sexual intercourse was painful. He gave details of the drugs which he took and their cost, to which I shall refer at a later stage.
Evidence was given on behalf of the respondents by Dr Krishna Maharaj, a consultant neurosurgeon, and by Mr Kerwin Simmons, an insurance investigator. Dr Maharaj expressed the opinion that the appellant was exaggerating the restriction of his neck movements, that there had been pre-existing degeneration of the L5/S1 disc, which would have deteriorated in the future if there had been no accident, and that in general the appellant was not as seriously affected as he claimed. Mr Simmons gave evidence of seeing the appellant carrying his child for some distance, contrary to the averments in his evidence. Dr Maharaj said that after six months to a year the appellant's pain would be less and should become tolerable, and that it might disappear altogether in the future. He considered that if degenerative changes gave rise to nerve root compression surgery would be likely to give a good result. In answer to a question about the appellant's ability to drive his taxi Dr Maharaj said:
"If he sits for six to eight hours he will have pain. He can manage four hours."
The judge formed the opinion that he should accept and rely on Dr Maharaj's evidence about the appellant's physical state and future working ability. Although he professed not to be deciding between the medical witnesses, it is plain that he preferred the opinion of Dr Maharaj, whose conclusions he accepted when assessing the damages. It is equally plain to their Lordships that as the tribunal of fact he was quite entitled to do so, since there was material upon which he could reach such a conclusion. He summarised his view of the appellant's condition in a passage at page 99 of the record:
"As a result of the accident the plaintiff sustained injuries to his back, specifically to the L5, S1, the 5th, 11th and 12th thoracic vertebrae ie. T11 and T12. He did not undergo any surgical treatment and I accept that he is unable to operate his taxi as a full time taxi driver or as a mechanic. He has suffered restricted mobility and cannot lift heavy objects. He is unable to take part in the limited recreational activities he enjoyed before the accident but he can lift his infant child or take walks with her as well as drive his car. His evidence on the foregoing was in my view exaggerated."
Having recited the evidence and expressed the above conclusion, the judge concluded as follows:
"For the reasons set out above, I award damages as follows:
Special damages
$45,491.00
General damages (Injuries, pain and suffering)
$150,000.00
Loss of future earnings
$95,000.00
This is based upon the plaintiff's evidence that he was a part-time mechanic and full time taxi driver. He can no longer work as a mechanic. I rely upon the evidence of Dr K Maharaj who found there is 29% total disability."
He did not express any reasons for arriving at the figure which he allowed for future loss, and did not specify a multiplier or multiplicand, nor did he set out any facts or figures from which one might assess the basis on which he calculated the loss. He did not include any figure in his award for loss of earnings to the date of trial or for future costs of medical treatment or medication.
The Appeal to the Court of Appeal
In his judgment in the Court of Appeal Kangaloo JA focused on three areas of damages, the award for pain and suffering and loss of amenities, the loss of earnings to the date of trial and the appellant's future loss.
In approaching the award of damages for pain and suffering and loss of amenities Kangaloo JA correctly adopted the well known test set out by Greer LJ in Flint v Lovell [1935] 1 KB 354 at 360, approved by Lord Wright and adopted by Lord Porter in the House of Lords in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 and by the Judicial Committee of the Privy Council in Nance v British Columbia Electric Railway Co Ld [1951] AC 601, which it is not necessary to set out here. After rehearsing the evidence and disapproving of the medical witnesses' practice of expressing a claimant's disability in terms of a percentage of incapacity (in which their Lordships agree with the Court of Appeal), he cited a number of previous awards made by the courts in Trinidad and Tobago for injuries of a comparable nature, extrapolating the figures contained in them to bring them up to modern values. He concluded that –
"… the range of awards for this type of injury is between $40,000 and $120,000, ranging from that class of case with moderate lasting effect to the most severe consequences of a back injury."
It therefore followed that the award of $150,000 was in his opinion grossly excessive and should be set aside. Kangaloo JA then reviewed the appellant's injuries, referred briefly to the cost of...
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