Robert Antoine v (1) Johnston International Ltd an External Company whose nominated Attorney-in-Fact is Gary D Dodd of Sunny Acres in the Quarter of Castries in the State of Saint Lucia and whose registered place of business in Saint Lucia is situated in at Sunny Acres in Castries (2) Steven Mathurin of Marigot in the Quarter of Castries in the State of Saint Lucia

• Jurisdiction: St Lucia
• Judge: GEORGES, J [AG.],Ephraim Georges,High Court Judge [Ag.]
• Judgment Date: 30 November 2010
• Judgment citation (vLex): [2010] ECSC J1130-7
• Court: High Court (Saint Lucia)
• Docket Number: SLUHCV 2008/0975
• Date: 30 November 2010

[2010] ECSC J1130-7

IN THE HIGH COURT OF JUSTICE

Before:

The Hon. Mr. Ephraim Georges High Court Judge [Ag.]

SLUHCV 2008/0975

Between:

Robert Antoine

Claimant

and

(1) Johnston International Limited

An External Company whose nominated Attorney-in-Fact is Gary D. Dodd of Sunny Acres in the Quarter of Castries in the State of Saint Lucia and whose registered place of business in Saint Lucia is situated in at Sunny Acres in Castries.

First Named Defendant

(2) Steven Mathurin of Marigot in the Quarter of Castries in the State of Saint Lucia

Second Named Defendant

Appearence:

On written submissions of Ms. Maureen John for the Claimant

Defendants not present and unrepresented

GEORGES, J [AG.]

1 This is an application for assessment of damages pursuant to Part 16 of the Civil Procedure Rules 2000 (CPR) by a 48 year old heavy equipment operator who about mid morning on 29^th August 2006 while in the course of employment with the First Named Defendant (JIL) and other employees at a construction site called Discovery at Marigot Bay was instructed by his supervisor to take a bail of cement from the construction yard to the concrete plant.

2 This necessitated driving uphill where he alleged that he stopped and parked on his left and proper side and placed boulders at the back of the wheels of the dumper to prevent it from rolling backwards downhill as there was no handbrake.

3 It was then he claimed that another dumper truck driven by the Second Named Defendant also an employee of JIL negligently collided with his dumper causing it to begin rolling downhill directly towards a manhole where three other employees of JIL were at the time working.

4 In order to avert the looming danger the claimant said that after shouting in vain to alert the men of the approaching hazard he ran towards his dumper truck got on it and attempted to divert it from them which he managed to do successfully but fell off in the process and the dumper itself fell on the left side of his body crushing it and causing him serious extensive physical injury loss and damage.

5 This is the claimant's account of how the accident occurred as set out at paragraphs 1 to 8 of his statement of claim. Liability is attributed to JIL for requiring him to drive and operate a dumper which had no handbrake and failure to mend it after being told. Further and in the alternative JIL would be vicariously liable for the negligent driving of the 2^nd Defendant its servant and/or agent in the course of his employment.

6 The claimant would also in my view on those facts be contributorily liable forknowingly driving a dumper truck without a handbrake and parking it on a hill and placing boulders at the back of each wheel thus posing serious risk which would clearly attract a degree of culpability for any ensuing loss and/or damage. None of this was addressed by the claimant's attorney. I will return to it later.

7 For the issue at hand is not strictly one of liability but of quantum of damages for judgment in default of acknowledgment of service against both defendants was entered for the claimant on 12^th October 2009 for an amount to be decided by the court and attention will now therefore be focused on that for the time being.

8 At the outset I must say that there are a number of unsatisfactory features in this application which has rendered the assessment (on the papers as it is) tedious and arduous. I shall address them as they arise.

Loss of earnings

9 A substantial part of this claim is special damages. The first item under that head is loss of earnings amounting to $150,751.00. This is computed on the basis that as a heavy duty operator aged 45 years and 7 months at the date of the accident and earning approximately $1400.00 monthly his claim for loss of income from the date of the accident (29^th August 2006) to attainment of retirement age of 65 would have been 233 months x 647.00 = $150,751.00 taking into account receipt by the claimant of NIC monthly benefit of $753.00.

10 However not a single salary slip of the claimant has been exhibited. And whilst I would not question the accuracy of the NIC monthly benefit calculations I note that no discount is allowed for the enhanced value of the lump sum payment which the claimant would receive instead of the monthly salary installments over the years and account in my view would also have to be taken of the contingencies and uncertainties of life in arriving at an appropriate multiplier so as to achieve a fair and equitable award under this sub-head.

11 In determining the multiplier I have adopted the reasoning of Satrohan Singh J.A. inAlphonso & Ors. v Ramnath [1997] ECLR 233 paras E, G, H and I in which Dr. Ralph Gonsalves for the appellants presented nine unreported cases on the topic for the guidance of the Court and which in the main received the Court's approbation.

12 In the case cited the trial judge treated the 45 year old respondent as having a working life of up to 65 and discounted that by a quarter in arriving at a multiplier of 15 which the Court reduced to 12 following the trend of the authorities referred to inAlphonso v Ramnath. For my part I would apply a multiplier of 12 in this case.

13 So that in the result the claimant would be entitled to loss of earnings in the sum of 144 months x $647.00 = $93,168.00 discounted by 10% because of its lump sum nature and to cater for the contingencies of life resulting in a final net figure of$83,851.20.

Nursing Services

14 In respect of this sub-head which is referred to as housekeeping assistance a claim of $72,900.00 is made comprising:

Total disability assistance payments ($800.00 x 6 months)…	$4,800.00
Partial disability assistance payments made to date and continuing until the age of 65 years (227 months x $300.00)	$68.100.00
Total under this head	$72.900.00

15 The claimant averred that he had paid a caretaker $800.00 a month during a 6 month temporary total disability period and $300.00 per month during a period of temporary partial disability thereafter until the present time and that assistance of that kind would most likely be required for the rest of his life which is pegged at 65. Again there were no receipts as the claimant says he did not receive any from his caretaker. How then is this to be resolved?

16 Orthopedic Surgeon Dr. Richardson St. Rose FRCS in his report dated 7^th October 2006 wrote that the claimant's injuries consisted of :

• •A crush injury to his pelvis resulting in comminuted fractures and bilateral subluxations of sacro-iliac joints.

• •Bilateral ala fractures of the first sacral vertebra.

• •Injury to the left first (L) lumbar nerve resulting in foot drop.

• •Neuro praxia of the right sacral plexus.

• •Crushed chest injury with fractured ribs and ruptured diaphragm.

• •Ruptured bladder.

He was in severe pain and discomfort and emergency surgery was done by Dr. A. Richardson: repair of diaphragm and other intra abdominal structures.

About one week later, the divarication of the pubic symphsis was reduced by and fixed by plates and screws. Adjacent fractures of the ilium were reduced. At this point a large tear in the bladder was...