Ambrose v Guyanese Stores Ltd et Al
| Jurisdiction | Guyana |
| Judge | Bernard, C. |
| Judgment Date | 01 December 2001 |
| Neutral Citation | GY 2001 CA 15 |
| Docket Number | Civil Appeal No. 54 of 1999 |
| Court | Court of Appeal (Guyana) |
| Date | 01 December 2001 |
Court of Appeal
Bernard, C.; Singh, J.A.; Chang, J.A.
Civil Appeal No. 54 of 1999
Mr. T. Jonas for appellant.
Mr. E. Luckhoo, S.C. for respondents.
Damages - Vehicular accident — Injuries sustained by appellant — Fracture of left leg and ankle — Skin grafting and insertion of plate — Claim for damages — Sum of $275,000 awarded — Appellant dissatisfied with quantum of damages — Appeal — Claim that amount awarded was too low — Whether amount was too low — Award was fair and reasonable — However appeal allowed in part — Increase in award for loss of earning capacity from $35,000 to $70,000.
On 26th August, 1995 the appellant, an employee of the first-named respondent was injured while travelling in a vehicle owned by the first-named respondent and driven by the second-named respondent which said vehicle was involved in an accident in Church Street, Georgetown. The appellant sustained a compound fracture of his left leg with loss of extensor tendons and skin, and also injury to his left ankle. This necessitated skin grafting, and insertion of a plate with the result that he now walks with a slight limp.
The appellant instituted proceedings claiming damages from the respondents, and on 28th July, 1999 the learned trial judge awarded him general damages in the sum of $275,000 which included the sum of $35,000 for loss of earning capacity, and the balance for pain and suffering and loss of amenities. The appellant being dissatisfied with the quantum of damages appealed to this Court.
In his grounds of appeal he alleged that the amounts awarded under the various heads of damages were woefully low, and the learned trial judge failed to consider properly the appellant's loss of earning capacity.
Before embarking on an analysis of the submissions of both counsel in this matter it must be recorded that the appellant alter resuming work with the respondents in January, 1996 following hospitalisation was involved in another accident in June, 1998 not attributable to the respondents. At the time of the first accident he was employed in the workshop of the first-named respondent under the supervision of the second-named respondent, and continued to he employed in the said workshop upon his return to work. After the second accident he returned in February, 1999, and was put to work in the tools store.
Counsel for the appellant submitted that the learned trial judge in awarding damages for loss of earning capacity ought not to have found that there was no evidence that the appellant's transfer to the tools store was because of the first accident in August, 1995, and ought to have ignored the second accident as there was no evidence concerning the extent and effect of this accident. Counsel contended that the first accident impaired his earning capacity as there was no opportunity for promotion in the tools store to which he was removed as it was thought that he was accident prone. He pointed out that the appellant was not academically inclined, and all of this ought to have been considered by the learned trial judge.
Counsel submitted that a court in awarding damages for loss of earning capacity must consider the likelihood of a plaintiff being thrown on to the labour market, and if there is such a likelihood how substantially his prospects are in the labour market as a result of the injuries sustained. He referred to the cases of Moeliker v. Reyrolle & Co. Ltd. [1977] 1 All E.R., 9, Ashcroft v. Curtin [1971] 3 All E.R., 1208, Gravesandy v. Moore (1986) 40 W.I.R., 222 and Johnson v. Sterling Products Ltd. (1981) 30 W.I.R., 155. He posited that the appellant who was 19 years old at the time of the accident and 24 years old at the date of judgment had a working life of approximately 43 years, and should not he awarded less than 1/40 of his working life.
In his reply counsel for the respondents pointed out that the appellant's transfer to the tools store was not connected with the first accident as the appellant himself had testified that the second accident was the reason that he had been moved to the tools store, and this was confirmed by the second-named respondent. He submitted that the appellant ought to have led some evidence as to loss of earning capacity as the key element is whether he would he disadvantaged in obtaining employment if thrown on the labour market, and there is no evidence about this in the record. He referred to the case of Mapp v. Dowding Estates (1978) 32 W.I.R., 99 as well as the others cited by counsel for the appellant, and expressed the view that the learned trial judge had applied the correct principle. In addition he also made reference to Clarke v. Rotax Aircraft Equipment Ltd. [1975] 3 All E.R. 794 and Heeralall v. Hack (1977) 25 W.I.R., 117.
A good starting point in considering this appeal is the case of Moeliker v. Revrolle & Co. Ltd. (supra) to which both Counsel for the appellant and the respondent referred, and which the learned trial judge also considered in assessing the damages lift loss of earning capacity. In that case the following rationale to he adopted was laid down:
“In awarding damages for personal injury in a case where the plaintiff is still in employment at the date of the trial, the court should only make an award for loss of earning capacity if there is a substantial or real, and not merely fanciful, risk that the plaintiff will lose his present employment at some time before the estimated end of his working life. If there is such a risk, the...
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