Heeralall v Hack Bros. (Construction) Company Ltd et Al

• Jurisdiction: Guyana
• Judge: Crane, J.A.,Luckhoo, J.A.
• Judgment Date: 28 July 1977
• Neutral Citation: GY 1977 CA 22
• Court: Court of Appeal (Guyana)
• Docket Number: Civil Appeal No. 8 of 1976
• Date: 28 July 1977

Court of Appeal

Haynes, C.; Crane, J.A.; Luckhoo, J.A.

Civil Appeal No. 8 of 1976

Heeralall

and

Hack Bros. (Construction) Co. Ltd. et al

Appearances:

D. Jagan for the appellant.

C.A.F. Hughes for the respondents.

Damages - Personal injury — Leg injury

Tort - Damages — Assessment

Crane, J.A.

1 This is another of those cases in which it is being contended that the general and special damages were awarded on wrong principles; that they are a wholly erroneous and unrealistic estimate of the damage suffered, and therefore ought to be increased. But the strange point about the case is that neither plaintiff nor defendants have testified. Evidence was led on the plaintiff's behalf by his mother and the surgeon who examined and operated on him. Thereafter, the defendants closed their case and contested the matter not on liability, but solely on quantum of damages. Whereafter the trial judge in a reserved decision awarded a total of $27,000 damages and costs, which detailed at a later date in reasons for decision as follows:

GENERAL DAMAGES
1. Loss of prospective earnings	$17,544.00
2. Pain, suffering and loss of amenities	$ 3,500.00
3. Cost of artificial leg	$ 1,500.00
	$22,544.00
SPECIAL DAMAGES
Loss of income, travelling expenses, nourishment and medical certificate	$ 4,000.00
TOTAL	$26,544.00

2 I gave judgment for $27,000 with costs $1,200.”

3 Both general and special damages, as above stated, are attached as being erroneous and unrealistic as an estimate of the damages suffered. Counsel for the plaintiff claims damages ought to have been properly assessed under the above heads in the vicinity of $126,166.80 but as has been truly said, “It is not enough that there is a balance of opinion or preference, the scale must go down heavily against the figure attacked if the appellate Court is to interfere, ground of excess or insufficiency.” [See Davies v. Powell Associated Collieries Ltd., [1942] A.C. 601.] It would be convenient before going into this matter shortly to relate the facts as they have been narrated by the trial judge.

4 The plaintiff, Doodnauth Heeralall called Sadhoo, was knocked down on the highway on 12th July, 1973. The lorry that did so was owned by the first-named defendants and driven by the second defendant. Heeralall was in a state of shock on his admission to hospital with his left leg almost completely severed from his body. Shock treatment was administered, the leg amputated above the knee, and he was discharged a month later, i.e., on August 13, 1973. Thereafter, he was referred to a psychiatrist, but for some reasoned at or other, did not testify in support of his claim, though his mother, Sursattie Heeralall, did. She told the judge how he did not sleep well after the accident, how he became irritable, forgetful and violent at times, and how he has become “stupid” and now sits in seclusion talking all to himself. At nighttime he would run about the house, and for no apparent reason would beat up her children and make faces at them. Dr. Punraj Singh the surgeon who amputated the leg, testified in confirmation of plaintiff's mother's testimony in relation to his sleepless condition, his irritability, forgetfulness and violent nature, and from him the Court must have derived valuable information concerning Heeralall's mental and physical condition all of which undoubtedly helped the judge to form the basis of assessment of the damages he gave. Dr. Singh carried out further examination of the plaintiff at follow-up clinics and found the patient had developed some form of psychological overlay due to the accident which meant that his present condition had affected him mentally, so much so that it was difficult for plaintiff to reconcile himself to it. Unfortunately, his patient did not respond to post — operational treatment and that is why it was found necessary to refer him to a psychiatrist. On the matter of his physical capabilities and aptitude for work, Dr. Singh considered he was not fit to perform rice-planting or any “labouring duties” because of the fact that he now uses crutches to move around. Moreover, it was discovered there was a further deterioration in his psychological state which led him to believe that in course of time there will be need for an artificial limb to be fitted, the obtaining of which will necessitate travelling abroad as one cannot be acquired locally. Besides, in the event of his losing or increasing weight, another leg with spare parts will be required. There will, however, be no need for crutches when the artificial leg is fitted since he will be able to perform jobs that do not call for heavy manual labour, like supervising men at work, selling in a shop or occupying himself in some job of a sedentary nature.

5 The problem with which we are now confronted is always encountered in appeals of this kind — the appropriate measure of damages, which ought to be awarded in the light of findings of fact by the trial judge and the principles he applied to them in arriving at the impugned awards. It was found as a fact that the injured plaintiff earned his livelihood from three main sources of rice farmer, which brought him $2,300.00 per annum; (ii) as a market gardener, which brought him $12 per week or $624 per annum; (iii) as a milk-vendor, which brought him $16.80 per week or $873.60 per annum — a total of $3, 797.60; and that he also minded four cows and cultivated his garden and rice-fields with nobody's assistance. He did it by self-help, and all alone. It however turned out he had to sell the four animals for $2,000 in mitigation of his losses and had banked the money. Because of this, it was felt he had suffered hardly any loss” under that head of damage since he was in a position to invest the proceeds of sale and to acquire some benefit to himself thereby. In arriving at the conclusion that the injured man could still, despite his misfortune, be of assistance to himself as an agriculturist, though only in a supervisory capacity, the judge found he could employ persons to cultivate his garden and ricelands, and by a joint cooperative effort, could still earn a living from the same kitchen garden and rice-lands of which he was a tenant, though not as much as he used to earn. Admitting that there is no clear and easy way of determining how much would have been plaintiff's earnings were he to embark on cooperative enterprise he envisaged, the learned judge concluded that if plaintiff did so embark, “he would perhaps earn about one-half of what he previously earned” and upon that basis assessed his future “loss of income from the rice cultivation and the garden would be $1,150 and $312 per year, respectively, making a total annual loss of $1,462,” i.e., one half of what it otherwise would have been under those two heads, and in so doing, used the figure of 12 as a multiplier on $1,462, as total net annual earnings, to arrive at $17,544 as plaintiff's loss of prospective earnings.

6 Three points of complaint are made under this head of damage, i.e., loss of prospective earnings. It is said, firstly, there was of fact no basis on which, the judge could have found that the plaintiff would earn one-half of what he previously did. In my judgment, however, there was ample justification for this view and for the course taken. As the judge himself observed, the matter was a difficult one and he did the best he could have done in the circumstances. It was essential to determine what was plaintiff's immediate loss of earnings from the pursuits in which he was engaged, i.e., those that were adversely affected by the accident if his prospective loss of earnings were to be accurately to be calculated. To find this loss, it was necessary to determine what he was capable of earning in his semi-disabled state and deduct such earnings from that which he earned in his pre-accident condition. It was necessary to do this as a preliminary to converting such loss of earning capacity into a capital sum by using an appropriate multiplier. See Munkman on Damages, 3rd Edn, p. 49, where the principle is stated thus:

“Before the loss of earning capacity can be converted into a capital sum, the judge has to consider the evidence and probabilities in the case, and arrive at firm conclusions upon three things. First, what would the plaintiff probably have been able to earn in the future, if he had not been earn, injured; secondly, how long will his incapacity continue; and thirdly, how much if anything is much he still able to earn?”

7 The above principle of calculating prospective loss of earnings was applied in the recent case of Edwards v. Society of Graphical & Allied Trades by way of analogy to personal injuries cases. There, the plaintiff Edwards, as the result of a breach of contract, was wrongly dismissed by his trade union for nonpayment of union dues. He was earning £30 per week at the time as a skilled technician at the firm of Messrs Hugh Stevensons before his dismissal, and thereafter in order to mitigate damages, it became necessary for him to be employed as a labourer at £16 per week because there was no foreseeable prospect of employment in the same grade. Messrs Stevensons was a firm who operated on a 100% union membership basis, and in the consequence of the union's determination to treat plaintiff as having ceased to be a union member, difficulties arose about his continued employment with Stevensons. In calculating his entitlement to damages, Buckley, J. in the Chancery Division said ( [1970] 1 All E.R. 905, at p. 912):

“The amount that he would be earning net with Stevensons had he remained in their employment is a little under £30 a week. The amount which he could earn as a labourer in the printing industry, including overtime, net can I think, be reasonably taken at something of the order of £16 a week, resulting in a difference of something of...