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THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

ANTIGUA AND BARBUDA

CLAIM NO: ANUHCV 2010/0456

BETWEEN:

MICHAEL DE COSTRO

Claimant
and
ANTIGUA MASONRY PRODUCTS LIMITED
Defendant
Appearances:
Ms. Denise Jonas-Parillon for the Claimant

Ms. Monique Francis-Gordon for the Defendant

2011: June 23
November 2, 3
2012: April 11
JUDGMENT
[1] MICHEL, J.: The Claimant, Michael De Castro, was an employee of the Defendant, Antigua
Masonry Products Limited, from October 2007 to March 2010. Although employed as a labourer,
the Claimant appeared to have functioned in the course of his employment with the Defendant as a
fork lift driver, a block plant operator, a mixer operator, acube operator and even as a trainer. The
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Defendant is engaged in the business of manufacturing and selling concrete blocks at its block
making-plant at Bendals Village in St. John’s, Antigua.
[2] On 11th March 2008, the Claimant was injured in the course of his employment with the Defendant
at its aforesaid block-making plant, the cause and effect of which injury give rise to the dispute
between the parties in this case.
[3] On 16th
July 2010, the Claimant filed a claim form, with attached statement of claim, claiming
against the Defendant for damages for negligence resulting in personal injuries, loss and damage
to the Claimant.
[4] In his statement of claim, the Claimant alleged that on 11th March 2008 the Defendant ordered him
to operate a block plant machine on its premises, which order he complied with. The block plant
machine, which was set in automatic mode, stopped while he was operating it and his supervisor
directed him to touch the switch to see if the block plant machine would restart. Upon touching the
switch as directed, the loader rack of the machine came back on him and the machine caught his
legs and “pushed them dangerously apart.” He shouted desperately to his supervisor to turn off
the machine, but no one came to his rescue. He eventually managed to pull himself out from the
machine, but he experienced intense pain and a persistent burning sensation from his abdomen
down to his legs; his entire abdominal and pelvic area felt sore. As a consequence of his injuries,
he left work early that day. Thereafter, he continued to feel unwell and, about a week after the
accident, he requested of his supervisor that he be sent to the Defendant’s doctor, because his
condition was not improving. The Defendant eventually had him examined and treated by Dr.
Guillermo Miguel in Antigua and later by a neurosurgeon, Dr. Steve Mahadeo, in Trinidad. He
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averred that the accident occurred solely as result of the Defendant’s negligence and he set out 13
particulars of negligence of the Defendant. He claimed that, as a result of the Defendant’s
negligence, he suffered pain, personal injuries, loss and damage and he set out 21 particulars of
personal injuries suffered by him. He averred that prior to the accident he had none of the injuries
set out and experienced none of the symptoms associated with them. He claimed that, as a result
of his injuries, he can no longer perform heavy manual labour and that there is little or no prospect
of obtaining future employment as a labourer; and that he can no longer live the active lifestyle
which he previously enjoyed, involving sports and dance. He accordingly claimed against the
Defendant for special damages of $650 for medical expenses incurred, general damages,
prescribed costs and interest on the amounts awarded.
[5] On 30th September 2010, the Defendant filed a defence to the Claimant’s claim. Apart from
admitting that the Defendant caused the Claimant to be treated by Dr. Miguel in Antigua and Dr.
Mahadeo in Trinidad, and not admitting the Claimant’s date of birth, the Defendant disputed every
other allegation in the statement of claim. In particular, the Defendant denied any negligence on its
part and alleged that the matters complained of by the Claimant were occasioned without any
negligence or default on the part of the Defendant, and then detailed the reasons for its claim of
lack of negligence on its part. The Defendant alleged that, further or alternatively, the accident was
caused or substantially contributed to by the negligence of the Claimant and set out 7 particulars of
negligence of the Claimant. The Defendant, in disputing the Claimant’s averments of pain, injury,
loss and damage sustained by him and the particulars of personal injuries suffered by him, averred
that a seven-month delay from the date of the incident to the time when the Claimant first
complained to his supervisor was too remote in time to definitively establish that the mishap of 11th
March 2008 was the proximate or substantive cause of the Claimant’s injuries and that there may
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well have been a supervening event within the seven-month period which caused the injury which
the Claimant complained of.
[6] On 4th November 2010, the Claimant filed areply joining issue with the Defendant on its defence.
[7] Case management directions were given on 17th March 2011 and the case was fixed for trial on
23rd June 2011. The trial commenced on 23rd
June and continued on 2nd
and 3rd November 2011,
with two witnesses giving evidence for the Claimant and four witnesses giving evidence for the
Defendant.
[8] The first witness was the Claimant. His evidence (as per his witness statement) was that he was
employed by the Defendant as a labourer until March 2010 when his employment was terminated.
On 11th March 2008, his supervisor (Mr. Glasford Browne) ordered him to go and touch the switch
on the block plant machine that he was working on. The block machine had been set in automatic
mode but had staUed. Upon touching the switch of the block machine (as directed) the off loader
rack of the machine came back on him and the machine caught his legs and pushed them apart.
He shouted desperately to his supervisor to tum off the machine, but it appears that his supervisor
didn’t hear or understand what he was saying because the machine was making so much noise.
He just heard his supervisor responding “huh” repeatedly, but the supervisor could not see what
was going on from where he (the supervisor) was. He eventually managed to pull himself out from
the machine, but he felt intense pain and a continuous burning sensation from his abdomen down
to his legs; his entire abdominal and pelvic area felt sore. He then went and explained to his
supervisor what happened and his supervisor asked him if he wanted to go to the doctor, but he
declined, preferring to wait to see if the soreness would cool off shortly and to see if he was ok. He
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left work around lunch time that day and did not return to work due to soreness. Afterwards, he
continued to feel unwell and the following week he requested that he be sent to the Defendant’s
doctor as his condition was not improving. He repeatedly followed up with his supervisor on his
request to be sent to the doctor, but each time his supervisor informed him that he was waiting on
management. This continued over several months and, during that time, he was only able to
manage light work. Numerous times he was not able to manage any work at all and he would just
report to work, leave early and arrange with one of his co workers to sign off for him. Around 20th
October 2008 he was feeling really ill, angry and fed up with how the Defendant was dealing with
his situation and so he decided to go over his supervisor’s head and make his complaint directly to
the Defendant’s plant manager, Mr. Clarvice Richards. Mr. Richards wanted to know why he took
so long before he requested medical treatment and he informed Mr. Richards that he had
repeatedly asked his supervisor to send him for medical treatment but Mr. Browne kept indicating
that he (Mr. Browne) was waiting on management. Mr. Richards gave the excuse that Mr. Browne
never told him anything about his (the Claimant’s) request for medical treatment. He did not know
who to believe, but by the next day he was sent to Dr. Guillermo Miguel for a medical examination
and treatment. Dr. Miguel sent him to do an MRI at Belmont Clinic, which he did the following day
(22nd October 2008). He went back to Dr. Miguel that day and Dr. Miguel gave him a letter to take
to the Defendant and advised him that he should not continue working and recommended that he
undergoes surgery. The Defendant sent him to Trinidad to see a neurosurgeon, Dr. Steve
Mahadeo, who examined him on 1st
December 2008 and sent him for another MRI in Trinidad. He
went back to Dr. Mahadeo for review and Dr. Mahadeo indicated that the MRI showed that he
needed surgery on his backbone at the L4-L5 levels. On 8th December 2008, Dr. Mahadeo
performed the surgery on his back and reviewed his situation on 18th December 2008. He was
reviewed again by Dr. Mahadeo on 19th
January 2009; he was in a lot of intense pain at that time ­
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with abdominal pain, back pain and headaches. He was on painkillers, but they didn’t seem to
help. On 22nd April 2009, he went back to Dr. Mahadeo for review and Dr. Mahadeo advised that
he should not return to do any heavy manual labour in the future and that he was permanently
disabled to the extent of 25%. He was only able to perform light duties when he went back out to
work and a few months later the Defendant fired him, citing the global economic turndown and
financial difficulties as its basis for doing so. Because of his situation, he has not been able to
obtain a job as a labourer anywhere else and he had been forced to cook and sell food and play
music to get by. Throughout all this time, he continued to experience back pain, and in September
and October 2009 he visited Dr. Singh of Ortho Medical Associates to see whether Dr. Sigh could
help him. Since the accident, he has been unable to sleep in a bed because of pain and
discomfort and he has had to sleep in amakeshift hammock.
[9] The Claimant then detailed his injuries resulting from his workplace accident of 11th March 2008
and stated that as a result of his injuries he can no longer perform heavy manual labour and there
is little or no prospect of obtaining future employment as a labourer. He stated too that before the
accident he used to play music and dance a lot and he used to play football and other active
sports, but he can no longer live the active lifestyle that he previously enjoyed involving sports and
dance. He therefore asked the Court to order the Defendant to compensate him for the injuries
and loss he sustained as a result of the Defendant’s negligence.
[10] In oral testimony at the trial, the Claimant testified that the exact words spoken to him by Mr.
Browne on 11th March 2008 were – “Mike, go and climb over the roller bar and touch the home
switch on the off loader rack so I can see what the off loader rack would do.” He testified that he
was working with the block plant for 7 months before the accident; that the off loader rack did not
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move slowly towards him when he touched the switch and he was not able to control the
movement of the off loader rack; upon touching the switch, the off loader rack immediately came
back at him; at the time that he freed himself from it, the machine was not turned off and was still
operating. He testified that the block plant that injured him was a new plant; it was installed
sometime in 2007 (before he started to work with the Defendant in October 2007) and in January
2008 two white guys were brought in to do the fine tuning of the block plant so they could get it
working; he never received any special training on use of the machine; he got two and a half hours
of cube operator training by one of the white guys (the cube is a specific area of the machine);
Tyrone Jackson was the cube operator, but he was on sick leave at the time when the white guys
were there so Mr. Browne asked him to allow the white guys to train him so that when Mr. Jackson
came back to work he could show him (Tyrone Jackson) the functioning of the cube; in the two and
a half hours of training that he received he was not given a safety manual or given any safety
training; the training that he was given was basic training on the functioning of the cube – just
pushing of buttons, touching a computer screen. He testified that it is not true that the machine
was in manual mode at the time of his accident; it was in automatic mode; the start light of the
machine was on at the time, indicating that the machine was still in automatic mode; it is not true
that the machine had stopped for about 20 minutes prior to his accident; it had only stopped for
about 5 minutes. He testified that the switch that he touched (all the directive of his supervisor)
would not start the block plant, but because the machine had stalled in automatic mode, by
touching the switch the loader rack would move and complete its cycle. He testified that if the
machine was in manual mode at the time that Mr. Browne asked him to touch the switch, it would
mean that Mr. Browne was in control of the loader rack that injured him, meaning that Mr. Browne
was controlling the loader rack from the control panel where he (Mr. Browne) was; but Mr. Browne
was not in control of the loader rack; the machine was in automatic mode. He testified that it is true
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that Mr. Browne asked him to press the button by the unloader to bring the carriage back home;
that Mr. Browne was basically trouble shooting, because the machine was still in automatic mode
and not in manual; that there was nothing about his positioning in stooping down to touch the
switch which was not right.
[11] The cross examination of the Claimant by Learned Counsel for the Defendant was both intensive
and extensive, in the course of which the Claimant reiterated his account of how he sustained the
injuries of which he complains and for which he seeks compensation from the Defendant. The
Claimant did, however, by some of his admissions, effectively concede that he had not been
sensitive to and protective of his own safety. In particular, he conceded that he went into the block
plant to touch aswitch despite being aware of all of the warnings about not touching any part of the
machine without making sure that the machine is off and despite his awareness that the machine
was on and, moreover, that it was in automatic mode. He justified this course of action, however,
by saying that he was following the orders of his supervisor and that he trusted his supervisor. He
also conceded under cross examination that he worked his regular hours, he worked overtime and
he worked on Saturdays and Sundays (which he was not required to do) during the period that he
claimed to have been in serious pain and unable (on account of his injuries) to manage heavy or
sometimes any work. He conceded too that he was dishonest in claiming and obtaining payment
from the Defendant (as his employer) for work that he did not actually do.
[12] The Claimant’s only supporting witness was his friend, Tracy Adams. The evidence of Mr. Adams
(as per his witness statement) was that he assisted the Claimant after his surgery by collecting ice
for him from the Defendant’s premises so that he could keep cold the drinks that he was selling.
Mr. Adams stated that he used the Claimant’s jeep to collect the ice and he would get permission
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from Mr. Browne or (in his absence) from Zenworth Joseph to take the ice. He also stated that, to
the best of his knowledge, from after his operation, the Claimant never went to collect ice
personally from the Defendant’s premises.
[13] Under cross examination, Mr. Adams testified that the cooler with which he carried the ice for the
Claimant weighed between 60 and 75 pounds when it was filled with ice and that he collected the
ice for the Claimant about 97% of the time, like every morning (excluding Saturdays and Sundays)
for about one year.
[14] Thelhird intended witness for the Claimant, Tyrone Joseph, who had given a witness statement,
did not appear after his name was called 3times and so the Claimant closed his case.
[15] The first of the Defendant’s four witnesses was Glasford Browne. His evidence (as per his witness
statement) was that he has been an employee of the Defendant for 30 years and for 15 of those
years he has been block plant supervisor. On the moming of 11th March 2008, the block plant was
in manual mode for about 5to 10 minutes before the Claimant’s accident occurred. He went to the
unloader area to investigate why the machine had stopped. When the machine stops, the plant is
generally quiet and, if the Claimant shouted, everyone would have heard him, but he never heard
the Claimant shout or in any way cry out in pain to sound an alert that something had happened.
He would at the time have been no more than 10 feet away from the Claimant and the Claimant
was within his line of sight and within his hearing. He remembered seeing the Claimant and
Ronald Peters (since deceased) standing around the machine in the unloader area and hearing Mr.
Peters saying that the machine had stopped, the carriage was not coming back. He asked the
Claimant to press the button by the unloader to bring the carriage back home and he saw the
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Claimant stoop down with his body too close to the machine, but before he could warn the
Claimant about his positioning, the carriage came back and caught him (the Claimant) in the area
of his waist. The Claimant quickly wriggled free; he did not at any time scream out; it all happened
too quickly for that; the entire accident took a couple of seconds. He moved quickly to the area
where the Claimant was and he asked him whether he was ok and the Claimant said “yes”; he
asked the Claimant if he wanted to go to the doctor and he replied “no”; the Claimant never
indicated that he was feeling any pain. There was a blockage in the machine that day, which is
why the machine ended up stopping on that day. Pushing the button that he directed the Claimant
to push would not start the plant; it was designed to manually operate the carriage. All the men in
the block plant received safety training during the commissioning of the plant by the manufacturers
some months before the accident; there was an in-house training for one day and there was daily
training during the commissioning of the plant, which took 3to 4 weeks.
[16] Mr. Browne stated that it was his belief that, having been around block plant machines for many
years, the mishap could have been avoided if the Claimant had only positioned his body correctly,
angling it away from the unloader; he would not have been caught by the carriage.
[17] The remainder of the Mr. Browne’s witness statement did not address the issue of how the
Claimant managed to get injured at the Defendant’s block plant on 11th March 2008 in the process
of carrying out a directive given to the Claimant by him (as the Claimant’s supervisor on the job)
instead, it addressed the timing of the Claimant’s complain to him about his injuries and the
Claimant’s work record (as revealed by his lime card) between 11 th March 2008 and the
termination of his services on 5th March 2010.
10 [18J Under cross examination, Mr. Browne made two significant concessions. The first is when he said:
“I went to the unloader sight; I instructed Mr. De Costro to touch the switch; after he touched the
switch the unloader came back and that’s when he got injured.” The second concession can
equally be referred to as a confession, a contradiction or even a confusion. In its defence, the
Defendant specifically pleaded that “in or about October 2008 [the Claimant] first reported to his
Supervisor that he had suffered some injury from his mishap on 11th March 2008.” Mr. Browne
stated in his witness statement that it would have been in early October 2008 when the Claimant
reported his injury to him and, moreover, that when the Claimant did so he contacted the
operations manager, Mr. Clarvice Joseph, and told him what the Claimant had relayed to him.
After some persistent cross examination, Mr. Browne testified that in August 2008 the Claimant
requested to see a doctor because of the pain he was suffering due to the accident of 11th March
2008 and that he (Mr. Browne) discussed it with management. Then he said that management did
not agree to allow the Claimant to see adoctor in August, but that they did so in October. Then – in
an attempt by Counsel for the Defendant to clear up under re examination the confusion created by
Mr. Browne’s inconsistent evidence – Mr. Browne created more confusion when he said that it was
not in October, but in August, that the Claimant first reported his injury and that he (Mr. Browne)
first discussed it with management in October.
[19] The second witness for the defence was Lamoth Frederick. His evidence (as per his witness
statement) was that he is the chief financial officer and a director of the Defendant and that the
services of the Claimant and some other employees of the Defendant were terminated in March
2010 because of a serious downturn in the local economy and consequently in the sales at the
block plant. He stated that in the course of 2009 he would see the Claimant come to the
Defendant’s compound quite often to collect ice from the Defendant’s ice machine; that on these
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occasions he would see the Claimant unload a large cooler from the back of his car, fill it with ice
and then place the full cooler back into the trunk of his car, which did not strike him as the actions
of an individual with a serious back injury. He stated that he has a clear view of the ice machine
from his office window.
[20] In his oral testimony at trial, Mr. Frederick testified that he never saw Trinity Adams collecting ice.
[21] The third witness for the Defence was Shawn Watkins. His evidence (as per his witness
statement) was that he is the mixer operator at the Defendant’s block plant. He remembers the
block plant machine and the unloader being on manual before the alleged mishap on 11 th March
2008; the start light for the machine was off, which indicates that the block plant machine (which
includes the unloader) is on manual to allow one to move any part of the apparatus manually; that
in the automatic state one cannot touch any part of the machine. The block plant machine and the
unloader had stopped about 20 minutes before the mishap and he heard no noise to alert him that
anything was wrong. He was curious to see why the plant had stopped, so he proceeded to the
area where he saw the Claimant and Mr. Browne. When he got there he observed nothing pinning
the Claimant down and the Claimant was just walking away from the unloader, sort of hunched
over, which is why he asked the Claimant if he was alright, to which the Claimant responded that
he was ok. He asked the Claimant if he was sure and if he did not want to go to the doctor and the
Claimant again said ‘no’. He asked the Claimant if he didn’t make [no] noise and the Claimant said
‘no’, He said that the plant was stopped at the time so it would be easy for everybody to hear
anything. In his presence, Mr. Browne asked the Claimant if he wanted to go to the doctor and the
Claimant said ‘no’, Mr. Watkins then stated that he asked the Claimant if he was alright on another
two occasions before the end of the day, making a total of four times for the day that he had asked
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the Claimant this question. He subsequently said though that the Claimant never told him what
happened and that it was only some time after that he heard the Claimant say that the supervisor
had sent him behind there to pull a switch.
[22] Mr. Watkins’ evidence on this issue, therefore, is that on 11th March 2008 he saw nothing happen
to the Claimant, never enquired of the Claimant what, if anything, had happened, but nonetheless
proceeded to ask the Claimant “if he didn’t make no noise” and the Claimant said “no”, asked him if
he wanted to go to the doctor and the Claimant said “no”, and asked him four times in the course of
that day if he was alright, despite the Claimant’s continuous assertions that he was ok.
[23] Mr. Watkins then gave evidence (in his witness statement) about the Claimant’s regular attendance
at work after the occurrence of 11 th March 2008, his continued performance of his duties, his never
complaining about or showing any signs of being unwell, which evidence by Mr. Watkins appeared
to be designed to counter blow-by-blow the evidence of the Claimant.
[24] Mr. Watkins also asserted in his witness statement that the switch that the Claimant said he was
directed to touch would not restart the block plant, but would just assist to clear a blockage. The
concluding statement in his witness statement (excluding the certificate of truth) is that – “I maintain
that the Plant was in Manual Mode at the time of the alleged mishap.”
[25] In his oral testimony at trial, Mr. Watkins (in examination in chien explained what he meant by and
how he knew that the machine was in manual mode prior to or at the time of the Claimant’s
accident on 11 th March 2008.
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[26] Under cross examination, Mr. Watkins re-asserted his evidence about having (before and after 11th
March 2008) pulled the same switch that the Claimant had pulled on 11th March and the
circumstances under which he (Mr. Watkins) had done so. He testified that he had not been
trained in how to pull the switch but that he knew how to do it because he had watched what the
white men were doing when they had come to commission the plant. He testified too that the
Claimant received the same block plant training that he did, which he had stated in his witness
statement was cube operator training.
[27] The fourth and final witness for the defence was Clarvice Richards, who was the representative of
the Defendant present in Court throughout the testimony of the five other witnesses in this case.
His evidence (as per his witness statement) was that he is the Defendant’s plant manager for the
last 19 years. He first became aware of the mishap which occurred on 11 th March 2008 when (on
20th October 2008) he went in search of the Claimant after he (Mr. Richards) had conducted aspot
review of the time sheets and time cards which caused his attention to be drawn to a pattern that
had developed with the Claimant where, for anumber of successive Fridays, he had failed to return
to work after lunch. Then it was that the Claimant told him various unflattering things, including that
management did not care about anybody as long as the work was done and, upon asking the
Claimant to explain what he meant, the Claimant told him of the mishap that occurred in March and
his inability to get medical attention for it. He said that he called the Claimant’s supervisor, Mr.
Browne, who confirmed the mishap, whereupon he went to his office and prepared a letter for the
Claimant to see a doctor and he had his secretary to arrange for the Claimant to be seen by a
doctor the next day. The Claimant returned from the doctor’s visit with certified sick leave and
remained on sick leave from then until the following year.
14 [28] Mr. Richards then gave detailed evidence (in his witness statement) about the Defendant’s
policies, practices and procedures and advanced how incredulous it was that the Claimant could
have been injured as he claimed to have been and never sought medical attention, continued to
work as normal from 11th March to 20th October 2008, and thereafter operate his “snackette”,
including carrying a heavy container of ice for use in his “snackette”. He also gave evidence about
the newness of the block plant, the safety precautions involved in its operation and the training
provided to all employees, including the Claimant, on the operation of the block plant.
[29] Mr. Richards then made the astonishing assertion that the machine could not have been in
automatic mode at the time that the Claimant claimed to have been injured by it and that if it was in
the manual mode at the time, it would have been impossible for the Claimant to have been caught
by the machine so as to have been injured by it.
[30] In his oral testimony at the trial, Mr. Richards repeated and reaffirmed much of what was contained
in his witness statement about the operations of the block plant and the training of the Defendant’s
employees on its operation, including asserting (contrary to the evidence of Shawn Watkins) that
Shawn Watkins and the Claimant were trained on the operation of the block plant and on how to
angle their bodies when touching the switch, and he went even further by testifying that he
observed both of them receiving the training. He testified under cross examination that if an
employee was not trained as to how to angle his body when handling the switch then he would not
send the person to touch the switch, and – in response to a question as to whether it would not be
negligent for a supervisor to do so – he responded that a supervisor employed by the Defendant,
which specializes in heavy machinery, would not knowingly send an employee to do something
that is deemed dangerolJs.
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(31] Mr. Richards also reaffirmed in cross examination, his assertion in his witness statement that the
machine could not have been in automatic mode at the time of the Claimant’s alleged injury on 11th
March 2008 and that if it was in manual mode the pulling or pushing of the switch by the Claimant
would not cause the loader rack to come back on him. He did however end up saying (under
persistent cross examination as to how then the Claimant sustained his injuries) that he is still
trying to understand how the injury happened.
[32] The attempt by Counsel for the Defendant to get clarification under re examination of the way the
injuries to the Claimant could or could not have happened did not achieve that objective.
[33] Under questioning by the Court, Mr. Richards testified that he is not disputing that the Claimant
was injured or that he was injured on the Defendant’s block plant, but the Defendant is disputing
that the Claimant was injured in the way that he said he was.
[34] Under further questioning by Counsel for the Defendant (with the leave of the Court as a result of
the questions by the Court) Mr. Richards testified that it is also the position of the Defendant that
any injury which the Claimant now has may not have occurred on 11 th March 2008.
[35] The Defendant then closed its case and the Court rose to visit the locus in quo, which proved to be
useful in enabling the Court to visualize some of the things that had been addressed in the course
of the evidence. On resumption of the proceedings in the court room, the parties were then
ordered to file written closing submissions by 3.00 pm on 23rd November 2011. The Claimant’s
closing submissions were filed on 14th December 2011. The Defendant – although granted an
extension of time until 7th December 2011 – did not file its closing submissions before 30th
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December 2011. The Court, however, accepts both written closing submissions and deems them
to have properly filed, notwithstanding that they were filed late.
[36] The following questions fall to be determined by the Court in this case:
1. Was the Claimant injured on 11th March 2008 in the course of his employment with the
Defendant?
2. Did the Claimant sustain the injuries when he attempted to comply with adirective given to
him by the person designated by the Defendant to be his supervisor?
3. Did the Claimant’s injuries result from the negligence of the Defendant, its servants or
agents?
4. What injuries did the Claimant sustain as result of the occurrence at his workplace on 11th
March 2008?
5. Did the Claimant himself contribute by his own negligence to the occurrence or extent of
the injuries sustained by him?
6. What damages, if any, is the Claimant entitled to?
[37] In terms of the first and second questions, it is clear, and in fact undisputed, that the Claimant was
injured on 11th March 2008 in the course of his employment with the Defendant at its block plant. It
is also clear that the injuries sustained by the Claimant resulted from his attempting to comply with
adirective given to him by his supervisor, Mr. Gladstone Browne.
[38] In terms of the third question, the Claimant’s evidence is that on 11th March 2008 he was at work at
the Defendant’s block plant; the machine with which he was working had been set in automatic
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mode, but had stalled; his supervisor, Mr. Gladstone Browne, directed him to go and touch the
switch of the machine to see if it would restart; upon touching the switch which he was directed to
do, the loader/offloader/unloader rack of the machine came back on him and the machine caught
his legs and pushed them apart, thereby causing injury to him. This evidence, if accepted, would
clearly establish that the Defendant (as the Claimant’s employer) was negligent in failing to take
reasonable care for his safety by causing him to handle a malfunctioning piece of equipment which
could and did in fact cause serious injury to him and/or in directing him (through its supervisor, Mr.
Browne) to undertake atask which could and did in fact cause serious injury to him.
[39] The response of the Defendant to this evidence by the Claimant was to present evidence (through
its employees who gave witness statements and testified on its behal~ to the effect that the
Claimant could not have been injured in the manner which he claimed to have been, that his
injuries were not caused by any negligence on the part of the defendant and/or its employees, that
he was the cause of or a contributor to his injuries, that his injuries were not the result of the
occurrence at the Defendant’s plant on 11th March 2008.
[40) The contribution of the Defendant’s supervisor, Mr. Gladstone Browne, to the Defendant’s defence
was his evidence that pushing the button that he directed the Claimant to push would not start the
block plant, but was designed to manually operate the machine; that the mishap could have been
avoided if the Claimant had positioned his body correctly by angling it away from the unloader; and
that the Claimant worked as normal after 11th March 2008, regularly clocked-in overtime, including
by working on Saturdays and Sundays, declined to see a doctor when this was offered on the day
of the mishap, and did not ask to see adoctor before August 2008.
18
[41] The contribution of Mr. Shawn Watkins to the defence was his evidence that the block plant and
the unloader machine were in manual mode and the switch that the Claimant was directed to touch
would not restart the block plant; that he believed the mishap happened due to the Claimant’s
carelessness, because his body should have been angled away from the unloader to avoid getting
any part of his body caught in the machinery; that the Claimant went to lunch and returned after
lunch as normal on the day of the mishap and continued at work as normal and that, upon being
asked several times on the day of the mishap as to whether he was alright, he repeatedly said that
he was and he declined to see adoctor when asked whether he wanted to.
[42] The contribution of Mr. Clarvice Richards was his assertion that the machine could not have been
in automatic mode at the time that the Claimant claimed to have been injured by it and that if it was
in manual mode at the time it would have been impossible for the Claimant to have been caught by
the machine so as to have been injured by it. He also gave evidence about the Claimant being
trained in the safe operation of the machine and of the apparent failure of the Claimant to follow
safety precautions, and about the Claimant’s functioning as normal until after 20th October 2008.
[43] Two aspects of the Defendant’s response to the Claimant on how the accident of 11th March 2008
occurred are very telling on the issue of negligence. One is the definitive statement of Mr.
Gladstone Browne under cross examination that: “I went to the unloader sight, I instructed Mr. De
Castro to touch the switch, after he touched the switch the unloader came back and that’s when he
got injured.” The second is the apparent unwillingness of the Defendant’s witnesses to concede
that the machine malfunctioned on 11th March 2008, resulting in injury to the Claimant, and their
apparent inability to explain how the Claimant could have been injured by the machine without it
malfunctioning; so that the Defendant’s defence ended up being that machine was not in automatic
19
mode at the time that the Claimant was injured by it, but the Claimant could not have been injured
by it if it was in manual mode.
[44] Having reviewed the evidence of the witnesses on the cause of the Claimant’s mishap (as the
Defendant’s witnesses prefer to refer to the incident of 11th March 2008) and, notwithstanding the
Claimant’s concession under cross examination that he had not been sensitive to and protective of
his own safety, I am satisfied on a balance of probability that the cause of the Claimant’s workplace
accident on 11th March 2008 and of the injuries occasioned to him as a result, was the negligence
of the Defendant (through its supervisor, Mr. Browne) in directing the Claimant to undertake a task
on a malfunctioning machine, the undertaking of which could and did cause serious injury to the
Claimant.
[45J As a postscript on this issue, I want to state that, in making a determination as to negligence, I
attached no significance to the evidence of the Defendant’s witnesses about the Claimant still
reporting to work and still functioning as normal at his workplace after the occurrence of 11th March
2008 and until he was sent on sick leave by the doctor to whom he was referred by the
Defendant’s plant manager. The evidence of the Defendant’s witnesses on this issue appeared to
have been prefabricated and then assembled in the witness statements and oral testimony of
Messrs Browne, Watkins and Richards. Besides, the doctors to whom the Claimant had been
referred indicate that he had sustained the injuries enumerated in the medical reports and if,
despite these injuries, the Claimant continued to show up for work and function effectively at work,
then kudos to him for his courage and fortitude.
20
[46] In terms of the fourth question, as to what injuries the Claimant sustained as a result of the
occurrence at his workplace on 11th March 2008, the answer to that question can be found in the
medical reports on the Claimant
[47] The first medical report on the Claimant was issued by Dr. Guillermo Miguel on 21 sl October 2008
and reported a finding of pain in the Claimant’s abdominal and pelvic regions following injury on
11th March 2008 and a severe amount of gas in the Claimant’s epigastric region, and
recommended MRI of his lower spine for further evaluation.
[48] The MRI report dated 22nd October 2008 disclosed that the Claimant had disc dessication and
substance degeneration in the lower lumbar discs; an 8.84 x 9.30 milimetre disc herniation at L4/5
and a 9.15 x 9.63 milimetre disc herniation at L5/S1; mass effect on the thecal sac and cauda;
compromise of the lateral recesses and bilateral nerve root contacts.
[49] The third medical report on the Claimant was issued by Dr. Miguel on 23rd October 2008, following
the MRI which he had recommended. Dr. Miguel reported findings of pain in the epigastric region
and iliac region and pain in the lower spine with difficulty moving the left leg in flexion. He reported
as well that the abdominal and pelvic ultrasounds performed by him showed the Claimant to be
suffering from severe amount of gas in the epigastric region. He then related the findings of the
MRI recommended by him and referred the Claimant for overseas medical treatment (by a
neurosurgeon) for his lower spine.
1st
[50] The fourth medical report was issued on December 2008 by Dr. Steve Mahadeo – a
neurosurgeon in Trinidad. In his report, Dr. Mahadeo reviewed the patient history of the Claimant,
21
including previous medical findings and previous medical treatment and reported his own findings
of discomfort in the right gluteal region produced by lumbar flexion to 30 degrees, a pulling
sensation in the right thigh and calf produced by straight leg raising to 60 degrees and right sided
sciatic nerve irritation. Dr. Mahadeo then recommended a repeat MRI scan of the lower lumber
spine, after the review of which he would make adecision as regards treatment and prognosis.
[51] There was an MRI report on the Claimant dated 2nd December 2008, on the basis of which report
Dr. Mahadeo reviewed the Claimant and issued a medical report dated 3rd December 2008. Dr.
Mahadeo reported that the MRI scan revealed a large extruded disc fragment at L5-S1 level and a
subligamentous protrusion at the L4-L5 level. Dr. Mahadeo reported that he had recommended
L4-L5 and L5-S1 discectomies and had explained the benefits and risks to the Claimant.
[52] The seventh medical report on the Claimant dated 18th
December 2008 was issued by Dr.
Mahadeo. Dr. Mahadeo reported that he had reviewed the Claimant following right L4-L5 and L5­
S 1 discectomies performed on him on 8th
December 2008 and found that the Claimant’s gait and
posture were normal and he had only mild discomfort on bending, with tightness of the calf
muscles and paraesthesiae in the soles. He reported on the medication prescribed for the patient
and the advice given to him to refrain from lifting, bending below waste level, and high impact
activity like running and jumping. He reported that the usual period of recuperation from the
surgery performed on the Claimant is 12 weeks.
[53] The seventh medical report was issued by Dr. Mahadeo on 19th
January 2009, which indicated that
the Claimant had reported that he was experiencing headaches, palpitations and lower abdominal
pain after eating. He also experienced nocturia and occasional PR bleeding. Dr. Mahadeo
22
reported that, upon examination of the Claimant, there was tenderness to palpation over the
incision, lumbar flexion was limited to thirty degrees and right straight leg raising was limited to
twenty degrees; examination of the abdomen revealed no tenderness but revealed the presence of
an umbilical hernia.
[54] The eighth medical report on the Claimant was issued by Dr. Mahadeo on 22nd April 2009,
following his review of the Claimant on that day. The report indicated that the Claimant had
reported that the numbness in his right leg had resolved, but his back felt unstable; he had post
operative physiotherapy, including interferential sonophoresis and cryotherapy; his evaluation on
31 st March 2009 reported marked improvement in his condition with complete dissipation of
symptoms of nerve compression. Dr. Mahadeo concluded that the Claimant had shown good
progress following his surgery, but that he had residual pain in the back which is mainly myofascial
in nature. He recommended continuation of physiotherapy for the next 3 months for strengthening
of the core muscles of the Claimant’s back. Dr. Mahadeo opined that, due to the nature of the
Claimant’s injury and subsequent surgery, he does not recommend that the Claimant should return
to heavy manual labour in the future. He assessed the Claimant as having a permanent partial
disability of 25%.
[55] What emerges from this review of the medical reports on the Claimant is that, as of October 2008,
when he was first assessed medically following the accident of 11th March 2008, the Claimant’s
injuries were as follows ­
(a) asevere amount of gas in the epigastric region;
(b) disc dessication;
(c) substance degeneration;
23
(d) disc herniation L4/5 and L5/LS1;
(e) mass effect on cauda;

m compromise of lateral recesses;

(g) nerve root contacts.
[56] Subsequent medical reports on the Claimant showed steady progress by him and, by 22nd
April
2009 – the date of the last medical report on him – the Claimant’s only complain to Dr. Mahadeo
was that his back felt unstable, and Dr. Mahadeo concluded that the Claimant had shown good
progress following his surgery on 8th December 2008, but that he had residual back pain, which is
mainly myofascial in nature. In other words, he had muscular back pain, for which Dr. Mahadeo
recommended physiotherapy for the next 3 months. Dr. Mahadeo also made a recommendation
on 22nd
April 2009 that, due to the nature of the Claimant’s injury and subsequent surgery, the
Claimant should not return to heavy manual labour in future and he assessed that the Claimant
had a permanent partial disability of 25%.
[57] The fifth question for determination by the Court raises the issue of contributory negligence,
whereby the Court seeks to ascertain whether, notwithstanding the fact that the Claimant’s injuries
were caused by the negligence of the Defendant, the Claimant himself, however, by his own
negligence, contributed either to the happening of the event occasioning injury to him or to the
extent of the resulting injury.
[58] In order to establish contributory negligence, the Defendant must prove that the Claimant failed to
take such care for his own safety as a reasonable man ought in the circumstances to do and that
this failure on the part of the Claimant contributed to the fact and/or extent of his injuries.
24
[59] On the facts of this case, one may well argue that the Claimant ought to have contemplated about
and catered for the possibility that the machine was in automatic mode and had malfunctioned and
that if he did what he was directed to do by his supervisor, the likely consequence was that the
machine would restart and the unloader rack would then have proceeded quickly towards him and
forcibly push apart his legs so as to have caused the injuries which he suffered as a result. Well
maybe he could have; but I do not find that a reasonable man employed as a labourer at a block
plant for 5 months would, in the circumstances of this case, have declined to carry out a direct
order of his supervisor, who had been employed at the block plant for 30 years and for 15 of these
years was supervising workers like the Claimant, and whom the Claimant would have every reason
to believe was fully aware of the mode in which the machine was, its condition, and the likely
consequence of touching the switches on it.
[60] As to the allegation that the Claimant had failed to position himself in such a way as to angle his
body away from the switch that he was touching and had thereby caused or contributed to his
injuries, I reject it for the following reasons ­
• Firstly, there is no or no credible evidence that the Claimant had ever received specific training
on the operation of the switch which he had been directed by his supervisor to touch on 11111
March 2008.
• Secondly, there is no or no credible evidence that the Claimant had ever previously touched
that switch before being directed by his supervisor to touch it on the said 11th March.
• Thirdly, the Claimant’s supervisor, in directing the Claimant to touch the switch, never directed
him to position himself or angle his body in any way before or at the time of touching the
switch.
25
• Fourthly, if one accepts the evidence of the Defendant’s witnesses, in particular, the evidence
of the plant manager, to the effect that the machine was not in automatic mode prior to the
Claimant touching the switch on 11th March and could not have caused injury to him if it was in
manual mode, then – based on this evidence – it mattered not how the Claimant had positioned
himself or angled his body when touching the switch.
[61] For all of the foregoing reasons, I do not find that the Claimant had failed to take such care for his
own safety as a reasonable man ought in the circumstances to do and that this failure contributed
to the happening of the event occasioning his injury.
[62] In terms of the Claimant having contributed by any negligence on his part to the extent of his
injuries, I find no evidence of this. The fact that the Claimant had indicated immediately after he
was injured that he did not then wish to see a doctor can hardly be considered as negligent, as he
may not then have had any reason to believe that his injuries were as severe as they turned out to
have been. I also believe the Claimant’s evidence that when he realized that the pain was not
subsiding, he requested his supervisor to have the Defendant arrange for him to see a doctor and
that his supervisor repeatedly told him that he was awaiting word from management on this. Mr.
Browne’s vacillating responses on this issue were indicative of his inveracity on this and other
issues. He at first said that the Claimant did not request to see a doctor until October 2008; then
he said that the Claimant first requested to see adoctor in August 2008; then he said that when the
Claimant requested to see a doctor in August he reported the Claimant’s request to management
right away, but that it was not until October that management responded; then he said that the
Claimant having requested in August to see a doctor, it was only in October that he (Mr. Browne)
conveyed this to management. To cast further doubt on the veracity of Mr. Browne, Mr. Richards,
26
to whom he would have conveyed the Claimant’s request, said that he (Mr. Richards) never knew
of the Claimant’s request until he spoke to the Claimant on 20th October 2008 and that when he
asked Mr. Browne about it, Mr. Browne confirmed it.
[63] The Court having accepted the Claimant’s evidence that from the week following his injury he
requested, through his supervisor, that the Defendant arrange for him to see a doctor, and Mr.
Browne having continually assured him that he was just awaiting word from management on his
request, it was not unreasonable for the Claimant to have waited for the doctor’s visit to have been
arranged for him by the Defendant in respect of an injury sustained by him while carrying out an
order by his supervisor on the Defendant’s premises in the course of his employment with the
Defendant. There is also no evidence, such as there was in the case of Nigel Mason v Maundays
Bay Management Ltd1
(cited by the Defendant) that the Claimant’s injuries were exacerbated by
his failure to seek, receive or follow medical advice on his injuries.
[64] For the foregoing reasons, I do not find that the Claimant had failed to take such care for his own
safety or, for that matter, for his wellbeing, as a reasonable man ought in the circumstances to
have done and that this failure contributed to the extent or gravity of his injuries.
[65] I come now to the final question for determination, that is, on the damages to which the Claimant is
entitled.
[66] The Claimant is entitled to special and general damages consequent on the injuries which he
sustained as a result of the negligence of the Defendant and/or its servants or agents.
1Anguilla Claim No. AXAHCV 2006/0090 (Unreported judgment delivered on 23rd
June 2009)
27
· ‘
[67] As to special damages, the Claimant is entitled to damages for the loss specifically pleaded and
particularized by him in his statements of case and proved by him in his evidence, resulting from
expenses incurred or income forgone by him between the occurrence of his injuries and the trial of
the case. In this case, the only expenses incurred or income forgone by the Claimant which was
pleaded and particularized by him in his statements of case and proved by him in his evidence are
the expenses for visits to and consultations with Dr. Singh of Ortho Medical Associates, totaling
$650.00. The Claimant is accordingly entitled to $650.00 in special damages.
[68] As to general damages, the Claimant is entitled (as per the judgment of Wooding, C.J. in the case
of Cornilliac v St. Louis2 decided by the Court of Appeal of Trinidad and Tobago in 1965) to
general damages assessed by the Court on the basis of – (1) the nature and extent of the injuries
sustained, (2) the nature and gravity of the resulting physical disability, (3) the pain and suffering
which had to be endured, (4) the loss of amenities suffered, and (5) the extent to which pecuniary
prospects were affected. Having set out the considerations to be borne in mind by a court in
assessing general damages for personal injuries, Chief Justice Wooding went on to say:
“I am fully aware that it is not the practice to quantify the damages separately under each
head or, at any rate, to disclose the build-up of the global award. But I do think it is important
for making a right assessment that the several heads of damage should be kept firmly in
mind and that there should be aconscious, jf undisclosed, quantification under each of them
so as thereby to arrive at an appropriate final figure.”
[69] Looking first at the nature and extent of the Claimant’s injuries, the medical reports on the Claimant
(as at October 2008) show that the Claimant sustained the following injuries – (a) severe amount of
2 (1965) 7 W.I.R. 491
28
·
‘
gas in the epigastric region; (b) disc dessication; (c) substance degeneration; (d) disc herniation
L4/L5 and L5/LS1; (e) mass effect on cauda; (n compromise of lateral recesses; and (g) nerve root
contacts.
[70] As to the nature and gravity of the resulting physical disability, the Claimant (as of 22nd
April 2009 ­
the date of his last medical report) had residual back pain, which is mainly myofascial in nature. In
other words, he had muscular back pain, for which physiotherapy was recommended. It was also
recommended that, due to the nature of the Claimant’s injury and subsequent surgery, he should
not return to heavy manual labour in future. The Claimant was assessed as having permanent
partial disability of 25%.
[71] As to the pain and suffering endured, the Claimant had endured pain and suffering from the time of
the occurrence of 11th March 2008 when (according to his witness statement) he felt intense pain
and a continuous burning sensation from his abdomen down to his legs and his entire abdominal
and pelvic area felt sore. By 23rd October 2008, the Claimant was reported to have pain in the
epigastric region and iliac region and pain in the lower spine with difficulty moving the left leg in
flexion. By 1s1
December 2008, it was reported that the Claimant’s lower back pain had settled
following spinal manipulations by a chiropractor, the stiffness and numbness he had experienced in
his right leg had disappeared, but there was discomfort in the right gluetal region produced by
lumber flexion to 30 degrees and apulling sensation in the right thigh and calf produced by straight
leg raising to 60 degrees. By 18th
December 2008 (following surgery on 8th December) the
Claimant was reported to have only mild discomfort on bending, with tightness of the calf muscles
and paraesthesiae in the soles. On examination on 19th January 2009, the Claimant reported that
he had been experiencing headaches, palpitations and lower abdominal pain approximately half an
29
hour after eating. He also reported experiencing nocturia and occasional PR bleeding and there
was tenderness to palpation over the (surgical) incision. By the date of his final medical report on
22nd April 2009, it was being reported that the numbness in the Claimant’s right leg had resolved,
but his back felt unstable; there was marked improvement in his condition, with complete
dissipation of symptoms of nerve compression; there was no spinal or paraspinal tenderness, but
he exhibited tenderness to palpation along the incision; all tendon reflexes were normal, except for
diminished archilles reflexes on the right.
[72] It would appear from the Claimant’s witness statement that – as of the date of the statement (20th
April 2011) – he was still experiencing back pain and had been unable to sleep in a bed because of
pain and discomfort and he had to sleep sitting in a makeshift hammock.
[73] As to the loss of amenities suffered, the final medical report on the Claimant indicates that the
Claimant is assessed as having a permanent partial disability of 25% and recommended that he
should not return to heavy manual labour. The Claimant was not otherwise determined to have
lost or be diminished in the amenities for normal enjoyment of life. The recommendation,
contained in the post-surgery report of 18th December 2008, for the Claimant lito refrain from lifting,
bending below waist level and high impact activity [for example] running and jumping” appeared to
have been applicable only to the usual twelve-week period of recuperation from surgery and was
not repeated in any of the two subsequent medical reports on the Claimant. The Claimant, in his
witness statement, apart from affirming his inability to perform heavy manual labour, also added
that there was little or no prospect of obtaining future employment as a labourer. He also stated
that he used to play music and dance a lot and he used to play football and other active sports and
that he can no longer lead the lifestyle that he previously enjoyed involving sports and dance. The
30
I> I &
Claimant, however, admitted under cross examination that he did not play football for his
community or any team and probably played football once per month. The Claimant also offered
nothing by way of evidence of any previous involvement in dancing or any current restriction on
dancing.
[74] In terms of the extent to which the Claimant’s pecuniary prospects were affected by the accident of
11 th March 2008, there are two factors which negatively affect his pecuniary prospects, one is the
permanent partial disability of 25% and the other is the recommendation that he does not return to
heavy manual labour. There appears to be nothing, however, to prevent the Claimant from
continuing to earn a living from his other two income-earning activities of operating a “snackette”
and playing music or, for that matter, from gaining employment other than engaging in heavy
manual labour.
[75) Having completed a review of the pleadings and the evidence in this case, having determined the
issues of liability and examined the relevant legal principles and practices in assessing damages
for personal injuries, and having considered these principles and practices against the background
of the facts of this case, I will now undertake the actual assessment of the general damages to be
paid to the Claimant for the injuries sustained by him by virtue of the negligence of the Defendant.
In so doing, I will be guided by the House of Lords in the case of Wells vWells3 where Lord Hope
of Craighead said:
“The amount of the award to be made for pain, suffering and loss of amenity cannot be
precisely calculated. All that can be done is to award such sum, within the broad criterion of
what is reasonable and in line with similar awards in comparable cases, as represents the
3 [1998] 3ALL ER 481
31
II ,. ..
court’s best estimate of the plaintiffs general damages.”
[76] The Defendant very helpfully provided the Court (in its written closing submissions) with a total of
17 judicial authorities, 6 of which are comparable cases from the Eastern Caribbean Supreme
Court on assessment of damages for personal injuries.
[77] The first of the comparable cases cited and provided by the Defendant is the BVI case of Cedric
Dawson v Cyrus Claxton4
, where the Court of Appeal of the Eastern Caribbean Supreme Court
confirmed an award by the High Court in the British Virgin Islands of $97,200 (US$36,OOO) for pain,
suffering and loss of amenities to a claimant who suffered a C3-C4, C4-C5 disc herniation as a
result of a motor vehicle accident occasioned by the negligence of the defendant. Separate
awards were made in that case for general damages for loss of future income and loss of earning
capacity.
[78] The second of the comparable cases cited and provided by the Defendant is the Anguillan case of
Nigel Mason v Maundays Bay Management Ltd1
., where the High Court in Anguilla made an
award of $50,000 for pain, suffering and loss of amenities to a claimant (a man who was 37 years
old at the time of the accident and 45 at the time of the trial) who had suffered disc herniation of or
at L5/S1 (which the doctor described as a slip disc in the lower back region) which produced
sciatica (defined as pain affecting the back, hip and outer side of the leg caused by compression of
a spinal nerve root in the lower back). A separate award was made by the court for loss of
incomelloss of pecuniary prospects.
4 BVI Civil Appeal No. 23 of 2004 (Unreported Judgment delivered on 23rd May 2005)
32
[79] The third of the comparable cases cited and provided by the Defendant is the Antigua and Barbuda
case of Anita Tobitt v Royal Antiguan Beach Resort Limited5 where the Master (sitting in the
High Court in Antigua and Barbuda) made an award of $50,000 for pain and suffering and loss of
amenities to a claimant who had suffered from central and lateral disc herniation at L5/S1 with
impingement of the thecal sac. The claimant in that case was assessed as 8% permanently
disabled with a prognosis that she will develop post traumatic degenerative joint disease as she
grows older, which would increase the percentage of the permanent physical impairments in future.
Aseparate award of $20,000 was made for the effect of the injuries on her pecuniary prospects.
[80] The fourth of the comparable cases cited and provided by the Defendant is the Antigua and
BarblJda case of Rashid Pigott v Galeforce Windows &Doors Inc.G, where the Master (sitting in
the High Court in Antigua and Barbuda) made an award of $50,000 for pain and suffering and loss
of amenities to a claimant (a man who was 42 years old at the time of the accident and 45 by the
time of the assessment of damages) who had suffered posterior osteophytes at C4/5, C5/6 and
C6/7 which contained diffuse disc herniations at those levels. The claimant in that case was
assessed as having a partial disability of 40% which should be lessened by surgical treatment to
about 15%. A separate award was made in that case for loss of earning capacity.
[81] The fifth of the comparable cases cited and provided by the Defendant is the BVI case of Celia
Hatchett v First Caribbean International Bank7
, where the High Court in the British Virgin Islands
made an award of $54,000 (US$20,000) for pain and suffering and loss of amenities to a claimant
(a woman who was 40 years old at the time of the accident and 46 at the time of the assessment of
5 Antigua and Barbuda Claim No. ANUHCV 200610026 (Unreported Judgment delivered on 13th October 2010)
6 Antigua and Barbuda Claim No. ANUHCV 200410069 (Unreported judgment delivered on 11th January 2007)
7 BVI Claim No. BVIHCV 200610227 (Unreported judgment delivered on 29th November 2007)
33 damages) who had suffered degenerative disc disease at L5-S1 with hemiation. No separate
awards were made in that case for general damages for loss of future income and loss of earning
capacity.
[82] The sixth of the comparable cases cited and provided by the Defendant is the Antigua and
Barbuda case of Oscar Frederick v LlAT (1974) LimitedB
, where the High Court in Antigua and
Barbuda made an award of $80,000 for pain and suffering and $60,000 for loss of amenities to a
claimant (a man who was 56 years old at the time of the accident and 61 at the time of the trial) for
injuries to his back at the L3/L4, L4/L5 and L5/S1 levels producing severe lower extremity pain,
weakness and gait dysfunction. The claimant in that case was assessed as having a permanent
physical impairment of 17%, although this level of impairment resulted not only from the incident
giving rise to the award to the claimant but also from a subsequent incident for which the defendant
was not determined to have been liable. No separate award was made in that case for the extent
to which the claimant’s pecuniary prospects were affected by the injuries sustained; the court
noting that the claimant’s loss of future earnings was taken into account in arriving at the awards
for pain and suffering and loss of amenities (together totaling $140,000). This case was also cited
and provided by the Claimant.
[83] Taking into consideration the factors enumerated in the judgment of Chief Justice Wooding in
Cornilliac v st. Louis2
to be considered by a court in assessing general damages for personal
injuries, and taking into consideration the dictum of Lord Hope of Craighead in the House of Lords
in Wells v Wells3
as to how to arrive at the court’s best estimate of a claimant’s general damages,
the Court will make an award of general damages of $100,00 to the Claimant for pain and
8 Antigua and Barbuda Claim No. ANUHCV 2007/0391 (Unreported judgment delivered on 31 st May 2010)
34 .II ,,” • ..
suffering, loss of amenities and diminution of his pecuniary prospects.
[84] In arriving at this figure, the Court considered that, whereas the Claimant’s injuries were more
proximate to those of the claimant in the Oscar Frederick case than to those of the claimants in the
other cases referred to, and whereas the Claimant in the present case was at the material time 19
years younger than the claimant in the Oscar Frederick case, the pain and suffering and loss of
amenities of the claimant in the Oscar Frederick case were far more pronounced than those of the
Claimant in the present case, while the degree of post-surgery recovery was far greater in the
present case than in the Oscar Frederick case. There is in the Oscar Frederick case, unlike in the
present one, medical evidence of insufficient function in the lower limbs, in addition to the severe
lower back pain common in both cases; there is evidence in the Oscar Frederic case of
unmitigated pain and discomfort notwithstanding multiple surgeries; although Mr. De Castro was
assessed as having a greater degree of permanent partial disability than Mr. Frederick, the
evidence of deterioration in the quality of life of Mr. Frederick is much more Significant, such as his
consequential incapacity to enjoy or impairment in the enjoyment of his favourite and identified
hobbies, pastimes and other activities, including sexual activity.
[85] Like in the Oscar Frederick case, I will not make a separate award in this case for loss of future
earnings and/or loss of earning capacity. Although the Claimant may no longer be able to engage
in heavy manual labour, there is no indication that he may no longer be able to earn the same or
greater income than previously by engaging himself full time in his other accustomed income­
earning activities or by securing employment not involving heavy manual labour. The Claimant’s
diminished capacity (including earning capacity) is however factored into the award of $100,000
and, although the amount awarded may never be adequate recompense to the Claimant for the
35
pain, suffering and loss of amenities he has endured, it may nonetheless be helpful to him in the
pursuit of his future endeavours, including his future pecuniary prospects.
[86] The Court’s order is as follows:
1. The Defendant shall pay to the Claimant general damages of $100,000 for pain and suffering,
loss of amenities and diminution in his pecuniary prospects.
2. The Defendant shall pay to the Claimant interest at the rate of 5% per annum on the sum of
$100,000 from the date of service of the claim (29th
July 2010) to the date of judgment (11th
April 2012).
3. The Defendant shall pay to the Claimant special damages of $650 for medical expenses.
4. The Defendant shall pay to the Claimant interest at the rate of 2 %% per annum on the sum of
$650 from 20th October 2009 (the median point of the 4 receipts for medical expenses) and the
date of judgment (11th April 2012).
5. The Defendant shall pay to the Claimant prescribed costs of $16,159.
Mario Michel
High Court Judge
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