HECTOR, KENT (Plaintiff) vs. BHAGOUTIE, INDRANIE (Defendant) [2006] TTHC 46 (14 June 2006)

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1.1 Mr Kent Hector, the Plaintiff herein, is a builder by profession. In 1999 he was operating a construction company known as Kent Contracting Limited. On 10 ^th November 1999 he was involved in a motor vehicle accident along the S.S. Erin Road Debe in the vicinity of Mohess Road as a result of the negligent driving of motor vehicle PBD 3323 owned by the first defendant. While the Plaintiff was driving his motor vehicle PBG 3317 along the said road and was overtaking the Defendant’s vehicle, the Defendant swerved to the right causing the Plaintiff “to run off the road into a ditch and then hit a concrete wall.” ^[1]

1.2 By the judgment of this Court on 24 ^th March 2006 it was ordered inter alia that there be judgment for the Plaintiff and that his assessment of damages be adjourned for consideration at a pre trial review. The issue of the quantum of damages not having been resolved by the parties the Court proceeded to hear the evidence on this assessment of damages.

1.3 The Plaintiff adduced evidence through the Plaintiff, Kent Hector and the parties agreed a bundle of documents including a witness statement of Lester Gonzales. ^[2]

PARTICULARS	AMOUNT($)
Excess	6,000.00
Loss of use the said Rental of vehicle @$250.00 per day for 3 days per week for 8 weeks	6,000.00
Travelling @ $150.00 per day for 2 days per week for 8 weeks	2,400.00
Hired Help for 2 persons @ 330.00 per day 90 days	29,700.00
Hire Help for 1 person @$110.00 per day for 184 days and continuing	20,240.00
Cost of medication (to be supplied)	00.00
Police report	50.00
Card copy	20.00
Medical Report	350.00
Travelling to obtain same TOTAL:	$ 140.00 $65,190.00

2.2 Special damages are generally those past pecuniary losses calculable at the date of trial. Generally, special damages must be specifically pleaded and proven. However the Courts generally tend to take a realistic approach with regard to the proof of special damage and accept that particularity must be tailored to the facts. In Ratcliffe v Evans ^[3] Bowen LJ stated:

“The character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be……proved. As much certainty and particularity must be insisted on…… in…… proof of damage as is reasonable, having regard to the circumstance and to the nature of the acts themselves by which the damages is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”

2.3 This was cited with approval in a recent Court decision of our Court of Appeal in CA 20 of 2002 Anand Rampersad v Willies Ice Cream Limited . The quality of evidence that the Court will insist upon in proof of a particular item of special damage will vary according to a number of factors most notably the nature of the item in respect of which the claim is made, the difficulty or ease with which proper evidence of value might be obtained, the value of the individual item, the character of the acts which produce the damage and the circumstances under which these acts are done. See Ratcliffe ^[4] and Sookoo and Another v Ramnarace ^[5]

2.4 This realistic approach however must not derogate from the overriding obligation imposed on the Plaintiff to prove his special damages claimed and not to simply by a process of arbitrary estimation or guesswork pluck figures out of the air with the hope that his claim would be accepted by the Court. Lord Goddard CJ in Bonham Carter v Hyde Park Hotel ^[6] expressly warned against such an approach:

“ Plaintiff’s must understand that if they bring actions for damages it is for them to prove their damages; it is not enough to write down the particulars an so to speak throw them at the head of the Court saying: this is what I have lost; I ask you to give me these damages.” The Court is not a dart board for litigants to throw their figures hoping to hit the mark.

2.5 Although ordinarily the Plaintiff will be entitled to claim the sum paid as an excess in this Court’s view the Plaintiff has run afoul of the injunction as espoused by Lord Goddard CJ with regard to the claim for excess. The Plaintiff simply states:

“I had to pay excess in the sum of $6,000.00 while my vehicle was being repaired.”

It is not enough for the Plaintiff to, almost by an afterthought, contend that the Court must take judicial notice that all vehicles are subject to an insurance policy with a clause providing for excess. The Plaintiff’s simple assertion is not sufficient to prove his claim to excess in the sum of $6,000.00 whenever creditable evidence could have been obtained. There is no explanation coming from these defendants, one of which is the insurance company itself to corroborate the fact, or to strictly prove, that an excess was paid and in what sum. This information is indeed reasonably available to both defendants. The Court cannot be faulted for insisting upon strict proof of the payment or deduction of that sum. This claim is therefore disallowed.

Although the Plaintiff stated in his witness statement that his vehicle took 8 weeks to repair he conceded in cross-examination that “the vehicle was a write off and it could not be repaired” . There is no doubt however from the evidence of the Plaintiff that his vehicle was being used prior to the accident for the transport of labor and tools to and from the work site. It is therefore reasonable for the Plaintiff to obtain a substitute to continue to perform this job while his vehicle was out of service. There was no attempt however by the Defendant to contest the issue either in cross-examination or in addresses as to a reasonable period of time for the hiring of such a substitute. However the Court is satisfied from the evidence given by the Plaintiff that he acted reasonably in renting a substitute vehicle for only 3 days per week, which was done according to him “ to cut costs” . He also stated in cross-examination that it was the cheapest vehicle that he could have obtained. The Court also takes into account that the workload at the site according to the Plaintiff decreased over time.

In those circumstances the Plaintiff’s claim for the rental of a substitute vehicle is allowed to the extent of the claim as proven by the receipts tendered into evidence amounting to $6,000.00.

There was no evidence to support the Plaintiff’s claim for traveling for 2 days per week for 8 weeks at $150.00 per day. Such a sum is exorbitant having regard to his admission in cross-examination that to travel to San Fernando from Penal was $12.00. The Plaintiff simply stated in his witness statement that he travelled for 2 days at $150.00 per day. Accepting that the Plaintiff travelled for 2 days, which evidence was unchallenged, the Court will not insist upon the strictures of producing receipts for such travel and but will however allow the sum of $24.00 for the cost of traveling on those days.

The Plaintiff’s claim for hired help was stated in his evidence to be in the form of hiring additional help to assist him at the job site. The impression that the Plaintiff created in his evidence in chief was that as a result of the injuries he had to hire “extra men to do the work that I normally do on the site.” This however was simply not the case as the plaintiff admitted in cross examination that he had initially hired a team of workers at the job site and that this team varied with the demands of the job. After the accident the two men who he claimed as “extra men” were in fact Lester Gonzales and Dodath Barlo who were originally employed by the Plaintiff in the team. As time progressed the Plaintiff reduced his labor force as “the job was running at a cost so I have to break down the workers”. From the evidence of the Plaintiff the Court is not satisfied that he had more than just a supervisory role to play nor has he satisfied the Court that but for the accident these men would not have been retained by him to complete the job at the job site. This claim is therefore disallowed.

The Court therefore allows the following items on the Plaintiff’s claim for special damages:

The Plaintiff sustained injuries to his chest neck and right shoulder ^[7] . He stated that:

“When I got home, I started to feel pain in my neck and right shoulder . I went to the San Fernando General Hospital where I was examined by a doctor. He gave me tablets and I went home. I felt continuous and intense pain in my neck and shoulder for 3 months after the accident. I took pain killers, but they only helped for a while. After that 3 months, the pain continued but it was less intense that it was before. I continued to feel pain in my neck and shoulder for the rest of 2000 and this pain is still with me today. When the weather becomes cold the pain in my neck becomes more intense.”

“Prior to the accident I use to play football with Charlo Village United as a Defender. After the accident I was unable to play football. I would get severe pain in my neck and shoulders when running and moving my hands. I could not head a ball either because I use to get pain. Once in a while I use to play windball cricket in the village. After the accident I was no longer able to do so because I would get pain in my neck and shoulders when bowling.”

The Plaintiff’s medical report dated 31 ^st July 2001 from Dr Stephen Ramroop revealed the following:

“Since the accident, he claims that he has been unable to perform his work and his daily activities have been affected. He cannot stand or bend for long without experiencing pain in the neck and shoulder. He cannot participate in sports as he would like.”

The Court is guided in the assessment of damages by the traditional principles as set out in Corniiliac v St Louis . The Court also took into consideration the authorities cited by the Attorney namely Manwarring & anor v C.L. Singh Transport Service Ltd. H.C.A. 573/70 Anderson vs St. George County Council, Griffith vs Cunningham.

It is noted that of these cases H.C.A. 839/98 Griffith v Cunningham was closed in line to injuries sustained and is the more recent award cited by the Plaintiff authorities were cited by the Privy Council. Each case must however be determined on its own particular facts. While previous cases can only serve, as a general guide the Court must do the best it can to compensate the Plaintiff in light of his proven disability.

The following factors are therefore relevant to arriving at a fair award in this case. The Plaintiff was conscious after the accident to make a report. His pain only commenced a considerable time after the accident. The Plaintiff injuries from his own evidence were diminishing within 90 days forms the date of the accident. The lingering disabilities are relatively minor pain and discomfort. The Plaintiff admitted that the pain had not increased since the date of the accident. There is no evidence that his disability has or has seriously affected his work. . There is no recent medical report however as at 2001 his PPD was only at 10%There was no need for surgeries, no medical diagnosis of whiplash injury. No bone injury nor neurological deficit.

Under the heading of pain, suffering and loss of amenities this Court awards the sum of $19,000.00.

Special Damages are assessed in the sum of $6,756.00 with interest thereon at the rate of 3% per annum from 10 ^th November1999 to 28 ^th September 2000 and 6% per annum from 29 ^th September, 2000 to the date hereof.

General Damages are assessed in the sum of $19,000.00 with interest thereon at the rate of 12% per annum from 1 ^st October, 2000 to the date hereof.

The Court therefore orders the Defendants to pay these sums as aforesaid to the Plaintiff together with his costs certified fit for advocate Attorney-at-Law to be taxed in default of agreement.

^[1] See paragraph 1 of the Plaintiff’s witness statement dated 4 ^th March 2004

Trinidad and Tobago High Court