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Seepersad v. Persad & Anor (Trinidad and Tobago) [2004] UKPC 19 (01 April 2004)

Privy Council Appeal No. 86 of 2002

Peter Seepersad Appellant

(1) Theophilus Persad and

(2) Capital Insurance Limited Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 1st April 2004

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Present at the hearing:-

Lord Bingham of Cornhill

Lord Steyn

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Carswell

[Delivered by Lord Carswell]

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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 medicines required by the appellant, and mentioned the possibility of spinal fusion surgery, the cost of which could range from $25,000 to $65,000. He concluded:

"In the circumstances I am of the view that an award of $75,000 for the non-pecuniary loss of the appellant would meet the justice of the case. Included in the figure is a small amount for the cost of future medical treatment based on the evidence led."

It was conceded in the Court of Appeal that the judge had been in error in failing to make an award for loss of earnings up to the date of trial, and that an appropriate figure for the appellant's pre-accident earnings from the operation of his taxi would be $200 per day, subject to a deduction for taxes, holidays, sickness and times when the vehicle would be undergoing repairs or maintenance. The court made an allowance for these factors of 25 per cent. It also held that the judge had been wrong to refuse leave to amend the statement of claim to include loss of earnings as a mechanic. This last ruling was not challenged before their Lordships.

Kangaloo JA set out his computation of the loss of earnings to trial in the following passage at page 159 of the record:

"Taking into account the appellant's propensity to exaggerate it is not unreasonable to take the sum of $100 per day as representing his earnings as a mechanic prior to the accident. This sum, like the $200 per day as a taxi driver, should be discounted by 25% to take account of taxes, holidays and sickness. The evidence from the appellant is that he did not work as late on Saturdays so that his net earnings as a taxi driver on Saturday could reasonably be taken to $100 and as a mechanic at $50. Applying these figures his net earnings would have amounted to $1,650 per week. This has to be discounted by 25% so that his weekly loss was $1,237.50. Using the rounded off figure of $1,240 and applying it to the period of 77 weeks, from 7th October 1998 to the 29th March 2000 (the date on which judgment was reserved) produces a figure of $95,287.50 for the appellant's loss of earnings up to the date of trial."

Dr Ramsahoye SC for the appellant pointed out first that the period of 77 weeks is an incorrect computation, since it runs only to the date on which judgment was reserved, not the date on which the judgment on the quantum of damages was given, which was some 88 weeks from the date of the accident. He did not seek to disturb the award in respect of loss to the date of trial, however, mounting his main attack on the calculation of future loss.

Kangaloo JA rejected, as did the trial judge, the submission made on behalf of the appellant that he was permanently disabled from following his pre-accident employment. On the basis of the evidence of Dr Maharaj, he estimated that he could drive for four hours a day, losing thereby 38 per cent of his earning capacity as a taxi driver. He considered that it would be open to the appellant to employ someone to operate his taxi, either full-time or in tandem with himself. He also considered that he could re-open his mechanic's shop and employ an assistant to work under his supervision or direction. Their Lordships would observe that there appears to have been no examination of such a possibility in the course of the evidence or submissions before the trial judge. Kangaloo JA concluded that, guided by Dr Maharaj's evidence, he would use a multiplicand of $23,000 per annum for the diminution in future earnings, representing slightly more than 35 per cent of his estimate of the appellant's pre-accident income. He went on to deal with the multiplier in the following terms:

"At the date of the trial the appellant was 37 years old. No evidence was led about the age at which taxi drivers retire if they ever do, nor of the risks incidental to that type of occupation, which however cannot be insignificant in this country these days. It is conceded that the selection of a multiplier is a somewhat arbitrary process but I am of the view that a multiplier of 10 is not unreasonable in this case. Using this approach the appellant's loss of future earnings will be $230,000 instead of the $95,000 awarded by the learned trial judge."

Pain and Suffering and Loss of Amenity

Their Lordships entertain some reservations about the usefulness of resort to awards of damages in cases decided a number of years ago, with the accompanying need to extrapolate the amounts awarded into modern values. It is an inexact science and one which should be exercised with some caution, the more so when it is important to ensure that in comparing awards of damages for physical injuries one is comparing like with like. The methodology of using comparisons is sound, but when they are of some antiquity such comparisons can do no more than demonstrate a trend in very rough and general terms. If the validity of the award of $75,000 for pain and suffering and loss of amenities, which is a substantial reduction and by no standards a large award for serious injuries resulting from a horrific accident, depended solely on assessment of the comparisons to which the Court of Appeal had resort, their Lordships might feel some reluctance to accept it. The amount determined by the Court of Appeal is, however, the product of the views of appellate judges on a topic peculiarly within their own experience, the general level of awards of damages in their own jurisdiction, and their Lordships are not disposed to amend it. They do consider, however, that it was not justifiable to include within it the amount of the appellant's potential future loss in respect of medical treatment and medication, which is quite substantial and should in their view be dealt with as a separate head of loss.

Future Loss of Earnings

The Board was informed by counsel that damages for future loss are commonly assessed by the courts in Trinidad and Tobago by the application of the traditional multiplier-multiplicand method, long familiar in the several jurisdictions in the United Kingdom from generations of usage. In considering the sufficiency of the figure allowed for future loss, accordingly, their Lordships propose to adhere to that method and to base their calculations on it.

Taking first the multiplicand, in their Lordships' opinion the allowance made by the Court of Appeal of some 35 per cent of pre-accident earnings as the measure of future loss was unjustifiably low on the evidence given. On the estimate made by Kangaloo JA of the appellant's probable ability to drive his taxi, based on Dr Maharaj's view that he could sit for four hours at a time, he would have lost 38 per cent of his working ability in that capacity. There was no evidence to support the proposition that he could hire another driver to drive the taxi for a further period each day, whether such a division of labour would be feasible, what such a surrogate driver would have to be paid or whether such a business arrangement would be profitable. Nor was there any evidence to establish that he could have hired the services of a mechanic to take his place in performing the part-time work at this trade which he carried out before the accident. Their Lordships consider that it was wrong in principle to expect the appellant to put the damages awarded for pain and suffering at risk in financing his business. They are of the view that allowing a continuing loss of earnings of 35 per cent is too low on the evidence, and they consider that 50 per cent would be more appropriate. The Court of Appeal assessed the appellant's pre-accident earnings at $1240 per week, or $64,480 per annum. Half of that figure would give a multiplicand of $32,240.

The Court of Appeal fixed the multiplicand at 10 years' purchase, but gave no reasons for selecting that figure. The only guide that the Board could obtain was the statement by counsel that a rough scale is adopted by the courts in Trinidad and Tobago, based on the age of the claimant and the probable length of his future working life. Their Lordships cannot see any defensible basis for fixing the multiplier at 10 years' purchase, which in their opinion would give a figure for future loss which is seriously below the true loss and would provide wholly inadequate compensation to the appellant under this head of damage. The appellant's counsel stated that the current discount rate on Treasury bills in Trinidad and Tobago is between five and six per cent. If one were to assume a notional rate of return on index linked government securities, it would clearly be somewhat lower. Their Lordships have attempted to fix a multiplier which would give proper compensation to the appellant, taking into account interest rates in Trinidad and Tobago and making some allowance for the contingencies of life, and have determined that a figure of 16 years' purchase should be allowed. Applying that multiplier to the multiplicand of $32,240, the amount to be allowed for future loss comes to $515,840.

Medical Treatment and Medication

The judge did not include any figure in respect of the future cost of medical treatment and medication which might be required by the appellant. The Court of Appeal did not attempt to assess such costs, and merely included "a small amount", which was not quantified, in the award for pain and suffering and loss of amenities. This was not in their Lordships' opinion a sufficient or appropriate way to compensate the appellant for any loss under this head which he may sustain.

The appellant's evidence was that his daily medication was two Valium tablets, which cost $1.20 each, three Voltaren tablets at $8.00 each and four vitamin D tablets at $3.00 each. He also used a gel twice a week, which cost $63.00 a time. If this usage continued and it was shown that he needed all of these medicaments as a consequence of the accident, the cost would be some $20,529 per annum. Mr Ramroop referred in his evidence to several possible types of medication which the appellant might take for pain control, with approximate costs, but it was not established that the appellant had taken any of these. The appellant stated that he went for massage sessions at $75 a time, which he had to suspend because of his inability to afford the cost. Mr Ramroop also referred in his evidence to three epidural injections at monthly intervals at $3000 each, with the possibility of more over a period.

The evidence about the possibility of the appellant's requiring surgery in the future was equivocal. Mr Ramroop said that disc herniation could be treated surgically and that it was possible that the appellant might need spinal fusion surgery if instability were found. The latter was major surgery, and he mentioned costs ranging between $25,000 and $65,000.

It is not possible to form an accurate and verifiable estimate of the future cost of medical treatment and medication, because so much depends on how the appellant progresses in the future. It was not challenged that he had incurred such expense in the past, as is shown by the inclusion in the agreed special damage of a significant sum for medial treatment and medication. It does appear that there is likely to be some continuing expense, even if he improves significantly as time goes on. In their Lordships' opinion the most appropriate way to deal with this item is to allow a figure which will reflect the possibility of his incurring future expense of this type, on similar lines to the well-established approach to valuing loss of employment capacity: cf such cases as Smith v Manchester Corporation (1974) 17 KIR 1 and Moeliker v Reyrolle & Co Ltd [1976] ICR 253. The appropriate figure in their view is $100,000 and they would include that in the damages awarded.

The total sum which their Lordships consider should be awarded by way of damages for the appellant's personal injuries, loss and damage consequent upon the accident is accordingly made up as follows:

Special damage $140,778.50

Pain and suffering and loss

of amenities 75,000.00

Future loss of earnings 515,840.00

Future medical treatment

and medication 100,000.00

TOTAL $831,618.50

The Measure of Costs

The Court of Appeal gave the appellant only half costs of his appeal and the cross-appeal brought by the respondents against the amount of the award for pain and suffering and loss of amenity. In so ordering it must have treated the assessment of damages under this head as if it were a separate issue on which the appellant had lost, while succeeding on the other issues. In their Lordships' view this was an erroneous approach. The award of costs in Trinidad and Tobago is in the discretion of the court, as is usual in most common law jurisdictions. The general rule which should be observed unless there is sufficient reason to the contrary is that costs will follow the event. Where the party who has been successful overall has failed on one or more issues, particularly where consideration of those issues has occupied a material amount of hearing time or otherwise led to the incurring of significant expense, the court may in its discretion order a reduction in the award of costs to him, either by a separate assessment of costs attributable to that issue or, as is now preferred, making a percentage reduction in the award of costs: see, eg, In re Elgindata (No 2) [1992] 1 WLR 1207. The Court of Appeal's order was predicated upon the proposition that the assessment of damages for pain and suffering and loss of amenity was a separate issue from the assessment of the other heads of damage. This was an incorrect assumption. An issue for these purposes must be something so distinct and separate in itself that the decision of it constitutes an "event". The "event" was the quantum of damages to which the appellant was entitled and he succeeded on his appeal in obtaining a higher award than the judge had given him: even though one head was decreased, another was increased and one which the judge had omitted was added to the total. Their Lordships accordingly consider that the Court of Appeal had insufficient ground for reducing the award of costs made to the appellant and that he should have been awarded full costs in that court, without separating out any element attributable to the cross-appeal, which was only a means of putting in issue the quantum of all the items of damage in the judge's award.

Costs of Two Counsel

The judge gave a separate judgment on the appellant's claim to the costs of two counsel, in which he expressed his conclusion:

"When a Taxing Officer considers the assessment of costs he/she must have regard to all relevant circumstances which flow what I think a judge may consider in awarding costs as it relates to counsel, some of which are:

1. The complexity of the matter and difficulty or novelty of the questions of law involved.

This matter was not complex, particularly difficult, nor did novel questions arise.

2. The skill, specialised knowledge and responsibility required of, and time and labour expended by counsel.

Skill, knowledge and responsibility are necessary in every matter; but in the instant matter highly skilled and specialised knowledge of a senior counsel were not required.

Having considered all the relevant circumstances I award costs fit for one counsel to be taxed in default of agreement."

The Court of Appeal upheld his decision as a proper exercise of his discretion and made the same order, certifying the case as fit for one counsel.

The judge's award of damages in the sum of $290,491.00 was one of relatively modest amount and in the Court of Appeal it was increased to $445,778.50, more significant but still not a large claim compared with many other personal injury actions. The award given on this appeal before the Board is almost double that made by the Court of Appeal and almost three times that made by the judge. It is apparent from this re-assessment of the size of the claim that the skill and knowledge demanded of counsel and the weight of responsibility resting upon them were rather higher than the courts below assumed. This factor is a potent one in determining whether it was reasonable and proper to instruct two counsel: cf Juby v London Fire and Civil Defence Authority (1990, unreported) per Evans J, and the commentary in The Supreme Court Practice, 1999, para 62/A2/12. Their Lordships would generally be slow to interfere with the exercise of discretion on such a matter. In these circumstances, however, they consider that the courts below exercised their discretion upon a basis which has proved to be mistaken and that the case should have been certified fit for two counsel.

Conclusion

For the reasons contained in this judgment the Board will allow the appeal, increase the award of damages to the sum of $831,618.50, with interest as appropriate to the practice in Trinidad and Tobago, and with full costs, allowing two counsel, in both courts below and before the Board.