By Ariana Gordon

THE Caribbean Court of Justice (CCJ) has increased the award of damages payable to Tulsieram Dukhi for personal injuries he suffered following an accident which occurred in July 1997 on the Ogle Airstrip Road, East Coast Demerara (ECD). The new amount granted to Dukhi is $5,743,000, as against $5,446,000 granted in the Court of Appeal.Dukhi was standing with his bicycle on the ECD road when he was struck by a pick-up truck belonging to the Guyana Sugar Corporation Inc (GuySuCo) and driven by its employee Michael Thakoordin.

In 1998, Dukhi filed a writ and statement of claim seeking special damages, general damages and interest. The statement of claim was later amended and ultimately G$2,794,000 were claimed in special damages.

Dukhi alleged that he had suffered fractures to his left leg; pain and shock; had been hospitalised on three occasions for treatment and surgical procedures; and had suffered from a permanent incapacity and loss of earning capacity. He also argued that he would require neurological intervention in the future.

In its defence, GuySuCo claimed that Dukhi negligently rode his bicycle into the path of the pick-up truck, thereby causing the accident. It was also alleged that his amendment was a new claim, and it ought to be dismissed as it fell outside the limitation period.

Dukhi, in response, said the additional personal injuries claimed were casually related to the accident. Simon Agard, an eyewitness to the accident, and Dr Ramsahoye, a neurologist, gave evidence in support of Dukhi.
The trial judge made an order giving judgment in favour of Dukhi, and awarded damages in the sum of G$850,000, together with costs in the sum of G$50,000, and interest at the rate of six per cent from February 25, 1998 to July 13, 2009, and thereafter at a rate of four per cent per annum until payment. The judge did not provide either written or oral reasons for her decision.

Dukhi promptly appealed the award of damages, arguing that it was wholly inadequate and inordinately low, and that the trial judge had failed to take into account that the evidence in support of the alleged special damages was uncontradicted and unchallenged.

There was no cross-appeal. The appeal to the Court of Appeal came some 18 years after the accident in 1997, the judge having filed no written reasons for judgment.

In 2015, the Court of Appeal allowed the appeal, setting aside the trial judge’s award and increasing the quantum of damages to G$5,446,000. The court rejected GuySuCo’s contention that the absence of written reasons from the trial judge precluded appellate review of her award.

This issue had been addressed before a single judge in the chamber court of the Court of Appeal, where there had been no appearance on behalf of either GuySuCo or Thakoordin. The judge had agreed with the submissions of counsel for Dukhi, holding that because of the peculiar circumstances of the case, the appeal could proceed to a full hearing in the absence of written reasons of the retired trial judge, and that the Registrar should settle the record of appeal on the basis of the available documents from the High Court. There was no appeal from that order.

ERRED
The Court of Appeal held that both limbs of the test had been satisfied, as the trial judge had erred in law in failing to itemise the various heads of damage, which the court viewed as an absolute requirement in modern practice; and the award did not accurately reflect the full extent of Dukhi’s loss. As such, the court set aside the trial judge’s award and re-assessed the damages to be awarded to Dukhi.

The Court of Appeal made an award in relation to loss of earnings for two separate periods in the sums of G$1,178,000 and G$824,000 respectively, along with further special damages to cover other expenses; but it refused to make an award for future medical costs in relation to the neurological surgery and joint replacement surgery, as it held that Dukhi had failed to prove these items of special damage.

The Court of Appeal therefore awarded the sum of G$2,218,000 in special damages, with interest at six per cent per annum from the date of the writ to judgment in the High Court, and at four per cent thereafter until payment has been made in full.

The Court of Appeal also awarded general damages in the sum of G$1,728,000 for loss of future earnings, and G$1,500,000 for pain and suffering, with interest on the sum of $1,500,000 at the same rate as the special damages.

GuySuCo filed a notice of appeal to the CCJ, and Dukhi cross-appealed. GuySuCo complained that: (i) the Court of Appeal erred in setting aside the award made by the trial judge and embarking on a re-assessment of damages, as it was impossible to determine whether the test for appellate review had been met in the absence of the judge’s written reasons; and, (ii) the Court of Appeal was wrong to find that the damages awarded by the trial judge were inordinately low.

Dukhi, on the other hand, complained that: (i) the Court of Appeal erred in its re-assessment, and that the award made did not adequately compensate him for all the loss that he had suffered, as the amount of G$1,500,000 for pain and suffering and injuries sustained was inordinately low; (ii) the Court of Appeal made two errors, in the computation of time for the loss of earnings for the eighteen (18) month period and in the allocation, calculation and commencement date of the monthly award to cover his reduced earnings; and (iii) the Court of Appeal erred in failing to award general damages under various heads. He also challenged the interest awarded by the Court of Appeal, and therefore sought a further re-assessment of damages by the Court.

REJECTED
The Court rejected these submissions while highlighting that the judge’s order reflected that GuySuCo and Thakoordin were found wholly liable in negligence. Further, since GuySuCo failed to appeal the decision on liability, the Court of Appeal could not be faulted for proceeding to hear the appeal on that basis. The Court also indicated that the failure to give reasons could give rise to a breach of the right to a fair trial.

The CCJ also rejected GuySuCo’s submission that the Court of Appeal was precluded from reviewing and re-assessing the award of damages by referring to the well-established test for appellate intervention in the realm of damages, which has been routinely applied in Caribbean jurisprudence.
The test provides that an award of damages will be subject to appellate review where the trial judge made an error of law or the quantum of damages is so disproportionate to the sum claimed that it appears to be entirely incommensurate with the nature and extent of the loss suffered.

The Court thus dismissed the appeal and allowed the cross- appeal in part, adjusting the loss of earnings for the two periods to G$1,291,400 and G$1,007,600 respectively, and affirming the other orders of the Court of Appeal.

The court also ordered GuySuCo to pay to Dukhi the costs ordered in the courts below, and the costs of the appeal to be taxed in default of agreement; but gave no order as to costs on the cross-appeal.
The Honourable Justices Nelson, Saunders, Wit, Anderson and Rajnauth-Lee heard the case, and the judgment was delivered by The Honourable Mme. Justice Rajnauth-Lee. (Judgment summary taken from the CCJ’s website)