the republic of trinidad and tobago in the...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2016-01068

BETWEEN

SARAH COWIE-LA ROCHE

Claimant

AND

DONNY RAMNATH

NEW INDIA ASSURANCE CO. (T&T) LTD

ALL INDUSTRIAL COMPANY LIMITED

Defendants

By Ancillary Claim:


Ancillary Claimant

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AND

NEW INDIA ASSURANCE COMPANY (T&T) LIMITED

2nd Defendant/Ancillary Defendant

CV2016-01149

BETWEEN

CORETTA NATALIA RAMDEEN

(as a dependent of Eddie Ramdeen, deceased)

First Claimant

SHANIA RAMDEEN

(as a dependent, minor by the mother and next friend)


Second Claimant

JO’REL RAMDEEN

(as a dependent, minor by the mother and next friend)


Third Claimant


(as Administrator ad Litem of the Estate of Eddie Ramdeen pursuant to High

Court Order dated 8 April 2016)

Fourth Claimant

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AND

DONNY RAMNATH


NEW INDIA ASSURANCE COMPANY (T & T) LIMITED

Defendants

By Ancillary Claim:

BETWEEN


Second Defendant/ Ancillary Claimant

AND

NEW INDIA ASSURANCE COMPANY (T & T) LIMITED

Third Defendant/ Ancillary Defendant

(Consolidated Claims)

Before the Honourable Mr Justice Ronnie Boodoosingh

Appearances:

Mr Ulric Skerritt and Ms Trudy Thomas for Ms Sarah Cowie La-Roche

Mr Ken Sagar and Mr Derrick Sankar for the Ramdeens

Mr Stefan Ramkissoon for Mr Donny Ramnath

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Ms Karuna Ramsaran and Mr Jerome Maxime for New India Assurance Company

Limited

Mr Ronnie Bissessar and Mr Varin Gopaul-Gosine for All Industrial Company

Limited

Date: 23 October 2019

REASONS

1. There was a motor vehicle accident on 14 April 2012. This was near the

Divali Nagar site at Chaguanas.

2. Donny Ramnath was driving TCS 987. Eddie Ramdeen was driving PBG

2561. Sarah Cowie La Roche was a passenger in PBG 2561. She was

injured. Eddie Ramdeen died.

3. Coretta Ramdeen was Eddie’s wife. Shania Ramdeen and Jo’rel Ramdeen

are their minor children.

4. TCS 987 was owned by All Industrial Company Limited. Donny Ramnath

was an employee. The vehicle was insured by New India.

5. There are multiple claims. Sarah has sued for damages for negligence.

Coretta has sued as administrator of Eddie’s estate and on her own behalf

as a Defendant and next friend of their children.

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6. Coretta has sued Donny Ramnath, All Industrial and New India. Sarah has

sued Donny Ramnath and New India. All Industrial has brought an ancillary

claim against New India.

7. It is not disputed that there was a policy of insurance in force on the date

of the accident. Donny Ramnath was driving in the course of employment.

8. Several issues arose for consideration on liability:

(i) Was Donny Ramnath negligent?

(ii) Did Eddie Ramdeen negligently contribute to the accident?

(iii) Was Donny Ramnath under the influence of alcohol at the time such as

to void the policy of insurance?

(iv) Was Eddie Ramdeen proved to be under the influence of marijuana at

the time of the accident?

(v) Is the ancillary claim sustainable?

9. In resolving the liability issue, the Court had before it the evidence of

Donny Ramnath and that of the police investigator Corporal Kubir. There

were various hearsay statements attached to the evidence of Corporal

Kubir.

10. In this case the Court had to contend with essentially one witness who

directly saw or was involved in the accident and the hearsay evidence

provided by Corporal Kubir.

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11. There are many reasons why hearsay evidence in many cases must be

treated with caution. The witnesses are not present to be cross-examined;

there is the possibility of concoction or mistake or errors which cannot be

challenged; the Court is denied the opportunity of seeing and hearing the

witnesses; among others.

12. However, at the same time in an appropriate case the hearsay evidence

provides the only reasonable or plausible evidence in the case.

13. It is also the case that all hearsay evidence is not equal. The Court has to

examine each bit of evidence presented and attached such weight as it may

consider appropriate in the circumstances.

14. It is in this context that I am to consider the evidence here.

15. At the outset I have to say that I was not at all impressed by the evidence

of Donny Ramnath. He has indicated he suffered a stroke about 2018 and

since then his cognitive abilities have been impaired. The Court

accordingly made arrangements to take his evidence in San Fernando.

16. He did, however, present himself and showed the ability to understand

questions and to answer accordingly. However, I considered that any

reliance I could place on his evidence was significantly undermined in

cross-examination.

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17. In cross-examination he said among other things he could not recall how

fast he was driving and he did not remember being charged for a matter

arising.

18. He was showed his witness statement. He was able to read parts of his

witness statement and see his signature and parts clearly. But he claimed

to not be able to see his signature and other things.

19. He said he can’t remember how he was driving that day. He gave a version

of a car overtaking and stopping suddenly and he could not avoid hitting

the car.

20. He said he would not remember how the accident occurred, but he was

clear he did not drive negligently.

21. He said he signed his witness statement after the stroke. He disavowed his

signature on a statement he said he had given previously. He denied telling

anyone he had had Makeson stout drinks that night.

22. I concluded Mr Ramnath led a convenient memory and that he was not

speaking the truth when he gave evidence on certain matters which

appeared to go against him.

23. I found his claims to being able to see one thing but not another to be

attempts to mislead the Court and I found I could not rely on his evidence

in relation to the circumstances of this accident.

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24. This then led to the examination of the evidence that was put before the

Court and what inferences or conclusions could be drawn from them.

25. Of direct importance had to be the evidence of the investigator Corporal

Kubir. He visited the scene. He took statements from Donny Ramnath

and Ricardo Mootoosingh who was driving another vehicle TCM 931 at the

scene. Mr Mootoosingh was not involved and appeared to be independent

of the parties.

26. Corporal Kubir did a drawing of the scene based on the input of Donny

Ramnath and Mr Mootoosingh.

27. There was also evidence attached to the witness statement of New India’s

witness, Joanne Singh, who attached a statement purportedly given by

Donny Ramnath after the accident.

28. This also brought forward important inconsistencies between Mr

Ramnath’s version in the witness statement compared to his previous

statements.

29. Arising from my consideration of Corporal Kubir’s evidence I concluded the

accident occurred as suggested by the Claimants – that it happened in the

middle lane. I also found that PBG 2561 was at a standstill at the time due

to a road block exercise. Mr Ramnath’s vehicle ran into PBG 2561 and

there is no evidence of evasive action by Mr Ramnath. In the

circumstances, I conclude he was driving too fast in the circumstances.

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30. There was no proper lookout by Mr Ramnath and he struck Mr Ramdeen’s

vehicle from behind.

31. Submissions were made by All Industrial, Mr Ramnath and New India

criticizing Corporal Kubir’s investigation and his non-presentation of

certain documents. While I considered those, in my view, this did not

impact on the overall effect of his evidence. I found him to be a credible

witness whose evidence I could rely on.

Intoxication and Cannabinoid Use of Drivers

32. The statement to New India contained an admission of Mr Ramnath having

drunk three Mackeson stouts driving the day – the last he said was about

three hours before the accident.

33. Attached to Corporal Kubir’s statement were two reports by Ag. Corporal

Motiran Boodoo and WPC Robinson. I admitted these hearsay statements

for what they were worth.

34. Officer Boodoo at 8:40 p.m. conducted a breathalyser test and the result,

according to his statement was 78 micrograms of alcohol in 100 millilitres

of breath. At 8:58 p.m. it was 79 in 100ml. At 9:03 it was 82 in 100ml.

35. The Ministers’ order certifying the concentration of alcohol levels for the

purposes of the law to change a person of drunk driving is 35 micrograms

per 100 ml.

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36. Now there were certain difficulties with this evidence. We have no

evidence from either officer who administered the tests of the workings of

the breathalyser device and how the reading came about. We had no

evidence of the significance of a reading of 78, 79 and 82. We also had no

evidence why the readings appeared to be increasing as time passed.

There is also no evidence of the alcohol content of Mackeson before the

Court.

37. The law sets 35mg per 100ml as the basis for legal liability. Whether this

equates with what must be proved to show the alcohol level disturbed Mr

Ramnath’s quiet, calm and intelligent exercise of his faculties is not shown:

London v British Merchants Insurance Co. Ltd. [1961] QBD 705.

38. In Sheldon Neckles v Forrester and others CV 2013-02152 and 2296 Des

Vignes J. as he then was, at paragraph 62 of his judgment, said that the fact

the driver had consumed alcohol at a wedding did not support an inference

that he was under the influence or that his efficiency as a driver was

impaired by intoxicating liquor (see para. 62).

39. The intoxication clause in that case was in like terms as the present clause

which stated:

“The Insurer shall not be liable to make any payment in respect of any

accident, loss or damage or liability caused or arising whilst motor

vehicle in connection with which insurance or indemnity is granted

herein is being driven by the Insured (or any person who is in the

Insured’s employ or any person driving on his order and with his

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permission) whilst under the influence of or whilst his efficiency as a

driver is impaired by intoxicating liquor or drugs.”

40. In the present case the clause which has to be construed strictly against

the insurance company required proof he was under the influence or

whilst his efficiency was impaired.

41. Influence must mean it had some adverse effect on him and efficiency

must mean his ability to properly control the vehicle was impaired.

42. Even if the Court accepts the alcohol blood level, with the cautions already

noted, there is a missing link in the evidence as to what this meant in

relation to Mr Ramnath.

43. In the circumstances, I cannot conclude that the clause had effect in

relation to Mr Ramnath in this case.

44. Another issue raised was in relation to a Certificate of Analysis concerning

the deceased Mr Ramdeen.

45. An Analysis Report of Jezelle Charles of the Forensic Science Centre dated

27 June 2012 in relation to Mr Ramdeen stated that she had examined

blood submitted and found Cannabinoids – Positive for THC in Blood.

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46. She noted: “THC is the principal cannabinoid responsible for most of the

characteristic psychoactive effects of cannabis material (marijuana).”

47. She concluded:

“The detection of THC in laboratory Exhibit No.5073/12 is

indicative of the previous use of cannabis material.”

48. This report does not prove what has been advanced that Mr Ramdeen was

high or under the influence of marijuana at the time of the accident.

49. At its highest it indicated previous use of “cannabis material” – it does not

say how long before, what level, what concentration, in what form or how

often.

50. This evidence really does not suggest any contribution by Mr Ramdeen to

the accident.

51. Further, there is no evidence of how any cannabis use would have impaired

him. There is no evidence of how long the cannabis would show up in

someone’s blood analysis.

52. All the report does in the absence of any expert evidence is to invite

speculation. I attached therefore no significance to this limited finding to

this claim.

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Key Findings

53. Mr Donny Ramnath was solely responsible for the accident. He solely was

negligent in causing it. Mr Ramdeen did not contribute.

54. The policy of insurance was valid and effective. New India is responsible

for satisfying the judgments in this case based on the effectiveness of the

policy of insurance in favour of the insured All Industrial.

Damages

Sarah La Roche

55. I have considered the general guidelines on damages in Cornilliac v St Louis

(1965) 7WIR 491 and Heeralall v Hack Bros (1977) 25 WIR.

56. There were three reports for this Claimant –

The first Report of Dr Keith Parker, House Officer at EWMSC stated:

Glasgow Coma Scale 12/25.

Jaw laceration with multiple teeth loss.

Injury to pelvis.

57. On the CT scan it was showed she had:

Traumatic subarachnoid haemorrhage bleeds in left cerebellar hemisphere

Fractured mandible

Straightening of cervical spine

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Pelvis injury

Fractured right acetabulum

Widening of symphysis and widening of sacroiliac joint

58. She was admitted to the High Dependency Unit. She had to be monitored.

She was given various medication.

59. Dr Henry Bedaysie’s report showed post-concussion syndrome. There was

right vertical damage. She had post traumatic amnesia.

60. Dr Ebenezer Scipio noted:

Frontal lobe residual effects.

Multiple fractured teeth in the maxilla and mandible with dentoalveolar

disruption.

Hip fracture.

61. She had multiple teeth removed. She was fitted with removable partial

dentures. He also included estimated costs for additional treatment in

three phases involving bone graft to the maxilla, four implants in the

anterior and four in the anterior mandible. He also advised reconstruction

of the implants at a unit cost of $10,000.00. Copies of various receipts for

medical and nursing care and medication were attached.

62. Ms La Roche details in her witness statement how this accident affected

her. Her father Hillman Clasp also died in the accident.

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63. She woke up sometime after the accident and realised she was injured and

she learnt of her father’s death. She gave evidence of being taken care of

by her sister and husband and others. After some time when her family

had to go back to their jobs and other responsibilities she hired Rovon

Health Care Limited to take care of her needs.

64. She also had therapy which involved costs for an exercise bike, mat and

walker were incurred. She gets headaches and her ability to operate a day

care, which she did before has been affected.

65. I considered it appropriate to consider the reports of the medical

practitioners for what they contained in detailing the Claimant’s injuries

and the general effects those injuries had on her. I also accepted her

evidence about the general effects the injuries had on her. I also saw no

reason not to accept the Claimant’s receipts.

66. I found the expenses for home nursing care to be justified in the

circumstances. They were incurred between from August to the mid

following year. The Claimant explained that was care required and her

family assisted her for a period. This actually mitigated her losses. I

accepted this evidence.

67. New India submitted an appropriate figure for general damages in the

range of $130,000.00. Ms La Roche’s Counsel brought various authorities

to the Court. Having considered these authorities and the results I am of

the view that an award for general damages in the sum of $130,000.00 to

be justified.

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68. In my view, Ms La Roche has not by expert evidence justified the need for

future surgery for her claim to this sum. The evidence is that she had

already had some treatment in the form of dentures. It was open to her

to call the evidence of Dr Scipio to justify the need for this surgery.

69. I have accepted New India’s calculations for the Westshore expenses in the

sum of $27,833.52 and for Rovan Care in the sum of $71,547.10. The

expenses for the exercise equipment is also justified in the circumstances

in the sum of $3,000.00.

70. Accordingly, Ms La Roche is entitled to special damages in the sum of

$102,380.62.

71. Interest on special damages to run from the date of accident to the date of

judgment at the rate of 1.25% per annum.

72. Interest on general damages to run from the date of the claim from to the

date of judgment at 2.5% per annum.

73. Prescribed costs are payable on the total judgment sum and interest to

judgment. There is therefore judgment for La Roche against Donny

Ramnath and New India.

74. There is a stay of execution of twenty-eight days.

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Claims of:

Coretta Ramdeen

Shania Ramdeen

Jo’rel Ramdeen

Coretta Ramdeen (on behalf of the estate)

75. The Claimant has claimed under the estate of Eddie Ramdeen and as

dependants of him.

76. The estate is compensated under section 27 of the Supreme Court of

Judicature Act and the dependants under the Compensation for Injuries

Act.

77. I will deal first with the estate claim.

78. The Claimant’s widow, Coretta, gave evidence that Mr Ramdeen was a taxi

driver and a part time farmer. She was cross-examined. The Court had to

evaluate both the quantity of her evidence and the quality.

79. I accepted that Mr Ramdeen was a taxi driver. She gave evidence of

earnings of $300.00 - $500.00 per day. This was before his expenses. He

had to put gas, maintain the car and had related expenses. She gave

evidence he would from time to time get special jobs which would pay

about $150.00 per trip.

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80. For a taxi driver it is unlikely that there would have been receipts for most

items. I considered, on the whole, that a reasonable figure for earnings

would have been closer to $300.00 per day. This was his primary

occupation.

81. There was evidence – oral – by Mrs. Ramdeen that he also did farming.

Documents in the form of handwritten records by the deceased were

tendered. However, this was for the period 2004 to about 2008/09. It may

well be that he undertook farming before, but by 2012, he had decided to

pursue his taxi driving occupation more fully.

82. I considered that he may have supplemented his income by occasional

farming but the Court could do little than to guess at what income he may

have had.

83. Accordingly, on the whole from both pursuits I am prepared to accept that

Mr Ramdeen earned about $6,000.00 per month. This gives him an annual

income of $72,000.00 together.

84. In terms of an appropriate multiplicand I deducted one-third as being

reasonable for his own expenses.

85. Using the surplus approach I considered the multiplicand should be

$48,000.00 per year.

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86. He was forty-six years old at the time of his death with a working life to

perhaps sixty five, all things considered. An appropriate multiplier based

on the authorities is 10.

87. For the lost years I therefore consider an appropriate award to be

$480,000.00.

88. The estate is entitled to an award for loss of his expectation of life. Based

on more recent authorities I considered $25,000.00 to be appropriate.

Special Damages

89. The vehicle was written off. I considered an estimate of the pre-accident

value of $20,000.00 to be reasonable. The scrap value was $2,000.00.

Thus for the loss of the vehicle I award $18,000.00.

90. I accepted the receipt from Guide’s Funeral Home and the related

expenses. I therefore consider an appropriate sum for funeral expenses to

be $14,000.00.

91. Interest on special damages is ordered at 1.25% from the date of the

accident to the date of judgment. No interest is awarded on the lost years

and loss of expectation of life figures.

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92. On the estate claim therefore there is judgment for the Claimant against

the Defendants in the sum of $537,000.00.

93. New India under the terms of the insurance policy is required to satisfy the

judgment in respect of its insured.

94. I turn next to the dependency claim.

95. Shania was ten years old at the date of her father’s death. Jo’rel was six

years old. For Shania I considered an appropriate multiplier to be 8 and for

Jo’rel the multiplier to be 10.

96. Figures were submitted for the value of their dependency by their mother.

It is clear those figures were exaggerated – they were higher than the likely

income Mr Ramdeen had. While I recognise it would have been difficult to

provide bills or receipts for everything and the Court must take a common

sense approach I did consider the figures advanced to be duplicated and

overstated in certain instances. A more reasonable estimate, given the

family’s income was as follows:

97. Shania per month

School $ 200.00

Food $ 500.00

Supplies and Medication $ 300.00

Other $ 100.00

Total $1100.00

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98. Jo’rel per month

School $ 200.00

Food $ 500.00

Supplies & Medication $ 300.00

Other $ 100.00

Total $1100.00

99. The Court can divide this between pre-trial and post-trial losses, but in this

case it makes better sense to simply apply the multiplier.

100. Shania’s multiplicand therefore is $13,200.00. With a multiplier of

8 her award is $105,600.00.

101. Jo’rel’s multiplicand is $13,200.00. With a multiplier of 10 his

award is $132,000.00.

102. With respect to Miss Ramdeen I considered a reasonable

multiplicand based on the evidence per month to be $15,600.00 per year

as follows:

Food $500.00 per month

Bills $300.00 per month

Personal including medical $500.00 per month

With a multiplier of 10 this gives her an award of $156,000.00.

103. As dependents therefore the award would have been $393,600.00.

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104. All three are beneficiaries under the estate so in keeping with the

law the sum under the dependency claim is to be deducted from the estate

claim since it is less than the award under the estate claim. The higher

estate claim award therefore prevails.

105. Prescribed costs will also be payable on this judgment. There is a

stay of execution of twenty-eight days.

106. The claim of New India against All Industrial is dismissed based on

the policy point addressed above.

107. After hearing the parties further other consequential orders

followed the judgment on costs.

Ronnie Boodoosingh

Judge