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THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
Claim No. CV 2009-00561 (763/2005)
BETWEEN
MAUDE CONTANT Claimant
AND
ALVIN CRITCHLOW
THE BEACON INSURANCE COMPANY LIMITED THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
NORTHWEST REGIONAL HEALTH AUTHORITY ROWAN CUMMINGS
TRINIDAD AND TOBAGO INSURANCE LIMITED Defendants
*************
Before Master Patricia Sobion Awai
Appearances:- Mr. A. Mohammed for the Claimant No appearances for the 1st, 2nd and 3rd Defendants Mr. McKell for the 4th, 5th and 6th Defendants
Page 2 of 18
Background
1. On March 8, 2001, Maude Contant, a Registered Nurse, was
seated at the back of an ambulance which was at a
standstill near the traffic lights at the Morvant Junction
when it was struck by a vehicle from behind. She sustained
personal injuries. At the time of the accident she was 36
years old.
2. Judgment on liability was obtained against the First,
Fourth, Fifth and Sixth Defendants.
The Decision
3. Having considered the evidence and arguments, I made the
following order:
i. Special damages are assessed in the sum of $6,950.00
with interest at 6% per annum from April 8, 2001 to
today;
ii. General damages are assessed in the sum of
$100,000.00 with interest at 12% per annum from
March 24, 2005 to today;
iii. Future medical expenses are assessed in the sum of
$153,300.00 with no interest; and
iv. The defendants shall pay the Claimant’s costs on a
prescribed costs basis.
Page 3 of 18
The Evidence
4. Two witnesses were called on behalf of the Claimant: the
Claimant herself and Dr Santana. They were both cross-
examined. Two medical reports of Dr Toby were also put
into evidence.
The Claimant
5. When the accident occurred, Maude Contant was thrown
forward and felt immediate pain and swelling in her lower
jaw and neck. She was taken to the Casualty Department at
the Port of Spain General Hospital where she was given
painkillers to be taken twice daily, and was then
discharged.
6. She visited Dr Toby in late April 2001 and he prescribed a
cervical collar which she wore for approximately six months
after which she did physiotherapy for two months at the
Sangre Grande General Hospital.
7. She was on paid sick leave for six months, resuming work on
October 15, 2001. Upon resumption of duties she was shifted
from the Casualty Department at the Port of Spain General
Hospital to St James Medical Complex as she could not
physically handle the intense work load. There was no
change of salary.
8. She commenced studies in 2008 leading to a Bachelor of
Science Degree in Oncology Nursing in August 2010. This
qualification entitled her to become a Specialised Oncology
Nurse earning an increase in salary. As an Oncology
Nurse, her job involved administering chemotherapy to
patients and generally assisting patients. The work
Page 4 of 18
involved a lot of walking and standing and on most days due
to the demands of her job, she went without lunch or a
break and had to be “hustling and brisk in dealing with
patients”. However during the night shift, she would have
to sit for long hours as a result of which her back pain
increased.
9. Maude Contant expressed a desire to retire because of the
pain and restrictions she felt at work. She claimed that
she was doing a disservice to her employer and to the
patients as she was unable to lift patients and had to call
other nurses and attendants to assist her.
10. At the time of the assessment, she continued to experience
pain and had to take painkillers and use muscle rubs
regularly for relief. She felt that she could not jog, do
aerobics, dance, swim or hike. She had difficulty
sleeping. She experienced difficulty at home doing her
chores and was heavily dependent on her children to assist
with the housework.
Dr Santana
11. Dr Santana stressed that he saw Maude Contant for the
purposes of assessment rather than treatment. He prepared
three reports in 2007, 2011 and 2012 respectively.
12. In his first report dated July 24, 2007, Dr Santana noted
that Maude Contant complained of pain in the neck, a
pressing sensation on the left shoulder, back pain and
numbness in the hands. He gave a diagnosis of chronic
whiplash with a permanent partial disability of 15%. He
Page 5 of 18
referred her for an MRI. The MRI report dated July 31,
2007 gave the following opinion:-
(1) Loss of cervical lordosis;
(2) C2-3 to C4-5 levels: minimal disc bulge with no neural
compression;
(3) C5-6 level: diffuse disc bulge with mild propensity
to right indenting thecal sac with no neural
compression; and
(4) C6-7 level: diffuse disc bulge with posterior right
paracentral propensity indenting thecal sac with no
neural compression.
13. In his second report dated July 21, 2011, Dr Santana noted
that Maude Contant reported that her symptoms had worsened.
She complained, inter alia, of pain in the chest and back,
numbness in two fingers and weakness in the right upper
limb. Dr Santana opined that in a significant percentage
of cases chronic whiplash became worse with time and he re-
assessed her permanent partial disability at 20%.
14. In his third and final report dated November 29, 2012, Dr
Santana said that her symptoms had worsened. His
examination revealed weakness of the entire left upper
limb, but sensation was normal. He referred to the 2007
MRI report stating that the findings were consistent with
her symptoms. Permanent partial disability assessment was
revised upwards to 25%.
Page 6 of 18
15. In his oral examination in chief, Dr Santana indicated that
his permanent partial disability assessments were really
based on the Workmen’s Compensation Act and as such did not
take into account differences in profession. In the case
of Maude Contant, he proffered that her disability
assessment would really be between 70% and 75% insofar as
her ability to function as a registered nurse was
concerned. In his opinion, within five years she might
have problems actually working at all.
16. He said she was unable to play sports, do aerobics, run or
jump. However she could do swimming.
17. Though he did not state it in his reports, Dr Santana
recommended that a painkiller, Acoxia, be taken once a day
and another drug called Losec be taken twice daily. He
said that if her pain continued to worsen, surgery would be
recommended. He also recommended physiotherapy.
18. When questioned as to why he did not make mention of
physiotherapy or any other medical treatment in his
reports, Dr Santana stated that those matters were not in
his remit as Maude Contant had come to him for assessment
of her injury, not for treatment.
19. He indicated that chronic whiplash was a significant injury
and he knew that it was so because he himself had it.
20. While being examined in chief he said he found Maude
Contant medically unfit for work, under cross-examination,
he admitted that it was not impossible for Maude Contant to
perform her duties. He did not disagree when it was put to
him that with a course of physiotherapy, any difficulty she
Page 7 of 18
experienced might be alleviated. That he said was the goal
of physiotherapy but it did not always occur.
Dr Toby
21. In his report dated October 2, 2001 Dr Toby’s diagnosis was
severe whiplash injury. A cervical collar, medication and
extensive physiotherapy were prescribed. Maude Contant had
some residual neck pain and permanent partial disability
was assessed as 10%.
22. In his report dated August 8, 2003, some 2 years and 4
months after the accident, Dr Toby found that she still had
painful symptoms. Her condition though stabilized was now
chronic and permanent partial disability was assessed as
12%.
Analysis
23. At the time of the assessment, it was evident that Maude
Contant still experienced painful symptoms. However she
had successfully managed her condition through the years.
Apart from her stated desire to retire early, there was no
evidence that Maude Contant was unable to perform her work
as a registered nurse competently. On the contrary, she
had managed to complete a degree in 2010 and was promoted
to be a specialist oncologist nurse earning a higher
salary. The problems she experienced in the workplace
appeared to be surmountable insofar as she took medication
for the pain and she sometimes called upon other nurses and
attendants to assist her.
Page 8 of 18
24. Her academic achievement when considered with the absence
of adverse reports from her employer concerning the
performance of her duties or absenteeism, the failure of
her employer to refer her to a medical board to consider
her fitness for duty and the absence of medical reports
relating to her treatment after 2003 made it unreasonable
to conclude that the claimant’s injuries prevented her from
performing her duties in a satisfactory manner or that she
would be forced to retire early.
25. Dr Santana was the only doctor who was called to give
evidence. I was dissatisfied with his evidence for several
reasons. Dr Santana purported to give permanent partial
disability assessments of 15%, 20% and 25% respectively in
his written reports but in his oral evidence, he claimed
that Maude Contant’s disability was in the order of 70% to
75%. In his opinion, she should have been medically
boarded. His explanation for the disparity between the
figures in his oral assessments and those in the written
reports was that the latter were based on the Workmen’s
Compensation Act. I noted that there was no reference to
the Workmen’s Compensation Act in the reports. Moreover,
an assessment of 70% to 75% permanent partial disablement
suggested that Maude Contant would not be able to perform
most of her duties as a nurse yet she had been continuously
working as a registered nurse since the date of the
accident. With such an elevated disability assessment,
her performance ought to have been markedly unsatisfactory
yet there was no objective evidence of that. The last
medical examination conducted on November 29, 2012 revealed
one significant problem, namely, weakness of the entire
left upper limb. No new MRI report was relied on to
Page 9 of 18
confirm a worsening of Maude Contant's condition. Having
regard to the inconsistent disability assessments, Maude
Contant's continued performance of her duties throughout
and the lack of scientific support for the medical
findings, I concluded that Dr Santana's evidence was
generally unreliable.
26. The doctor’s statement that he knew chronic whiplash to be
a significant injury because he himself had it might have
raised a question as to his objectivity. However in his
report of July 21, 2011 he did indicate that chronic
whiplash “runs a variable course”, which I took to mean it
affects each person differently.
27. With respect to Dr Toby’s reports, this evidence was useful
for the period immediately after the accident until August
8, 2003, the date of the second report. That report
indicated that the claimant still had painful symptoms and
her condition though stabilized was now chronic.
General Damages (non pecuniary)
28. Using the principles set out in Cornilliac v St Louis 7 WIR
491, I considered the circumstances of the claimant's case.
Nature and extent of the injury
29. Shortly after the accident on March 8, 2001, Maude Contant
was diagnosed with severe whiplash.
30. After two years and four months, she continued to have
painful symptoms though her condition had stabilized. She
was then diagnosed with chronic whiplash.
Page 10 of 18
31. The MRI report dated July 31, 2007 revealed the following:
(1) Loss of cervical lordosis;
(2) C2-3 to C4-5 levels: minimal disc bulge with no neural
compression;
(3) C5-6 level: diffuse disc bulge with mild propensity
to right indenting thecal sac with no neural
compression; and
(4) C6-7 level: diffuse disc bulge with posterior right
paracentral propensity indenting thecal sac with no
neural compression.
Resulting Physical disability
32. Based on the unreliability of the medical evidence, the
claimant's resulting physical disability was uncertain.
33. Dr Toby who treated Maude Contant after the accident, found
in that her condition had stabilized though she continued
to experience painful symptoms. He assessed her permanent
partial disability at 12%. However Dr Toby did not give
evidence and therefore there was no explanation as to how
he arrived at that figure and what it meant in practical
terms.
34. Dr Santana who saw her in 2007, 2011 and 2012 for the
purposes of assessment only gave disability assessments of
15%, 20% and 25% respectively. At the hearing, he said
these figures related to Workmen's Compensation and he
sought to revise those figures upwards to 70% to 75% to
Page 11 of 18
take into account her functions as a registered nurse. As
noted above, I found his evidence in that regard to be
unreliable and
35. On the issue of disability assessments, I was guided by the
recent Court of Appeal decision in Dennis Peter Edwards v
Namalco Construction Services Limited and Guardian General
CA 28 of 2011. Having noted that the medical report in
question simply stated that the appellant was 90% disabled
the court held as follows at paragraphs 13 and 14 of the
judgment:
"[The medical report] does not give any scientific or
factual basis for that opinion. In Davie v Edinburgh
Magistrates 1953 SCC4, (approved and applied in Edmund
& Ors v Ralph Morris Mag. App. 5 of 1973) Lord Cooper
set out the role of expert witnesses in relation to a
tribunal of fact:
Their duty is to furnish the court with the
necessary scientific criteria for testing the
accuracy of their conclusions, so as to enable
the judge or jury to form their own independent
judgment by the application of those criteria to
the facts proved in evidence.
In my view the medical report was insufficient to discharge
the evidential burden placed on the Appellant. It did not
state the factual basis on which the opinion was premised.
It does not assist the court in assessing the extent of the
Appellant's alleged disability."
Page 12 of 18
36. I found that the medical reports lacked factual and
scientific bases for the disability assessments and Dr
Santana's oral evidence was also inadequate in this regard.
For instance, he did not indicate what nursing duties Maude
Contant could still perform and what she no longer could
do.
37. Apart from the medical evidence, I considered the evidence
of Maude Contant herself as to her disability. She said
she could no longer perform ambulance duties but given her
new position as an oncology nurse such duties are not
required. She had difficulty moving her neck at the normal
speed and could not raise her arms properly. On the one
hand she said she was unable to perform basic tasks such as
lifting patients, walking for long or hustling: paragraph
15 of her witness statement refers. On the other hand,
she said that on most days she went without lunch or a
break and had to be hustling and brisk in dealing with
patients: paragraph 9 of her supplemental witness statement
refers. Additionally, she would experience difficulty
while working the night shift as she had to sit for hours
which aggravated her entire back. It was not clear why
this latter problem could not be resolved by standing or
walking from time to time during the night shift.
38. It was significant that her physical disability did not
prevent her from successfully pursuing a B.Sc. Degree
during the period 2008 to 2010 though she indicated that it
was very difficult to study for periods in excess of one
hour without needing a break.
Page 13 of 18
39. At home, she had problems doing housework such as cleaning,
cooking, mopping, scrubbing, cobwebbing and changing
curtains and had to depend heavily on her children to
assist her.
Pain and suffering
40. At the time of the accident, Maude Contant suffered severe
pain and swelling in her lower jaw and neck. She wore a
cervical collar for six months.
41. The neck pain continued over the years. She described her
current condition at paragraph 12 of her supplemental
witness statement as follows:
At present I endure constant daily moderate pain from
my neck radiating down my back and to my legs. On most
days due to the movements and pressure at work this
pain becomes severe and it brings about headaches.
These headaches last for about 2-3 hours and happens
mostly when I am at work.
40. She used medication, namely Arcoxia 120 mg and Losec 20 mg,
for relief from her pain. She also used muscle rubs.
Loss of amenities
42. Before the accident, Maude Contant would jog and do
aerobics daily. She was unable to do those activities any
longer. Her social life was affected because she could not
go dancing or be involved in activities such as swimming,
hiking or romping with her children. However Dr Santana
did not agree that she could not swim.
Page 14 of 18
Caselaw
43. Both parties cited cases from this jurisdiction as a guide
in making the award for general damages in this case.
44. The claimant’s attorney cited the following cases:
Trinidad Transport Enterprises Limited v Layne CA 10/1971
Rattan Deyalsingh v The Mayor Aldermen and Citizens of the
City of Port of Spain HCA 2341/1979
Hakim Ali v Lal Hasranah HCA 1483/1976
Evans Moreau v Port Authority HCA 3958/2006
Harold Ramdoolar v Daniel Boodoo HCA 710/1973
A. Pemberton v Hi-Lo Food Store Ltd HCA 6039/1988
The awards in the above cases ranged from $12,000 to
$200,000, without adjustments and from $209,828.00 to
$350,970.00 adjusted to December 2010.
45. In Peter Seepersad v Persad (2004) 64 WIR 378, the Privy
Council expressed reservations about the usefulness of
relying on damages in cases decided many years ago which
need to be updated into modern values. Lord Carswell
stated:
"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."
46. Some of the cases cited by the defendant were of more
recent vintage. They were as follows:
Griffith v Cunningham HCA 839/1998
Pemberton v Y de Lima Co Ltd HCA 2012/1987
Page 15 of 18
Kent Hector v Indranie Bhagoutie and Reinsurance Company
HCA S-1115/2000
Olive George v Sherwin Taitt, Marie Pilgrim and Motor and
General Insurance Company Limited CV2007-106
Gillian Roxanne Isaac v Shaun Solomon and Motor and General
Insurance Company Ltd CV2007-4400
These awards ranged from $19,000.00 to $40,000.00.
47. In addition to the cases cited by the parties, I considered
the following cases in which the injuries appeared to be
comparable to those suffered by this claimant:
Hills v Thom and AG CV3268 of 2009
Dexter Sobers v The Attorney General CV2008-4393
Ann Marie Redman v Hilary Samuel CV2007-2664
Dayal Moonsammy v Rolly Ramdhanie and Capital Insurance HCA
2316 of 2001
These awards varied from $75,000.00 to $100,000.00.
48. In all the circumstances, I considered the sum of
$100,000.00 to be a fair award for general damages in this
case.
General Damages - Pecuniary Losses
(a) Future Loss of earnings
49. Maude Contant said she was doing a disservice to employer
and to patients as she was sometimes unable to lift
patients and has to call other nurses and attendants to
assist. Despite her anxiety about her job performance,
there was no evidence that her performance was below par or
that her employers were in any way dissatisfied.
Page 16 of 18
50. Dr Santana in chief expressed the view that within five
years Maude Contant might have problems working. Under
cross-examination he said that if he had to take a decision
as to when she should be boarded as medically unfit, he
would do so at the present time.
51. In Dayal Moonsammy v Rolly Ramdhanie and Capital Insurance
CA 62 of 2003, Kangaloo JA at pages 4 to 5 outlined the
duty of expert witnesses to furnish the court with the
necessary scientific criteria for testing the accuracy of
their conclusions. In that case, the doctor gave his
opinion that the appellant would have to retire in 5 years
time. The court found that there was insufficient evidence
in the medical reports to sustain a claim for loss of
earning capacity. Similarly in this case, Dr Santana’s
statement of opinion was unsupported by scientific criteria
that the claimant will be unable to work in 5 years time or
that at the time of the hearing of the assessment, she was
medically unfit for work.
52. On this issue, I noted the lack of evidence from the Maude
Contant’s employer that she was not performing her duties
properly or that she had taken excessive sick leave.
Neither was there any indication that she had ever been
sent for medical examination by her employer as a prelude
to declaring her medically unfit.
53. Having regard to the foregoing, no sum was awarded under
this head.
Page 17 of 18
(b) Future surgery
54. Dr Santana's medical reports were silent with respect to
surgery. However while being examined in chief, he
indicated that said he did not recommend surgery currently
but would do so if her condition worsened and specifically
when she became 100% disabled. He said the surgery was
very risky. Maude Contant made no specific reference to
having surgery thought she indicated that she was prepared
to follow the recommendations of her doctors. No sum is
awarded under this head because the medical evidence was
inconclusive as to whether surgery would be needed in the
future and whether it would be recommended given the risks
associated with that type of surgery.
(c) Future medical expenses
55. Maude Contant was taking medication costing $35 a day.
This medication was also recommended by Dr Santana. She
was likely to need this medication for rest of her life.
The annual cost of medication was therefore $12,775 and
using a multiplier of 12, which takes into account the
contingencies of life and the fact that a lump sum payment
was being made. An award of $153,300 was made under this
head.
Special Damages
56. In the claimant’s written submissions the only items of
special damages were medical bills in the sum of $6,950.
The receipts annexed to the claimant’s witness statements
support the said sum and the claim was allowed.
Page 18 of 18
57. With respect to loss of earnings, Maude Contant had
continued working since the accident and she did not prove
any loss of salary. She received increments and was in
fact promoted to Specialist Nurse on completion of her BSc
in Oncology Nursing.
Costs
58. Costs were awarded on a prescribed costs basis, to which
the costs of doctor’s attendance at court were to be added.
Dated this 11th day of March, 2014.
Master P. Sobion Awai