The Caribbean Court of Justice (CCJ) last Thursday ordered that the Guyana Sugar Corporation (GuySuCo) pay $5.7 million in damages to a pedal cyclist who was struck down by a company-owned truck in 1997, resulting in him sustaining serious injuries and loss of income.
GuySuCo had gone to the CCJ after the Court of Appeal had increased the trial judge’s award to Tulsieram Dukhi from $850,000 to $5.4 million.
According to the CCJ’s judgement, which is now available on the court’s website, the company’s appeal is dismissed and a cross appeal has been allowed in part.
It is now ordered that GuySuCo pay Dukhi special damages in the sum of $2,515, 000, which represents loss of earnings from July 15, 1998 to January 13, 2009, loss of earnings from January 16, 1999 to July 13, 2009 and other costs.
Also, the court ordered the payment of general damages, totalling $3,228,000, for loss of earning capacity and injuries sustained, pain and suffering and loss of amenities. This includes interest on the special damages and part of the general damages at a rate of 6% per annum from the date of the writ of summons to the date of judgement in the High Court and thereafter at a rate of 4% until fully paid. Dukhi is also to be paid all costs ordered in the lower courts and the costs of the appeal to be taxed in default of agreement.
Attorneys Jamela Ali and Sanjeev Datadin represented Dukhi, while attorney Kamal Ramkarran represented GuySuCo.
According to the judgment summary, the appeal arose out of a road traffic accident, which occurred on July 15, 1997 on the Ogle Airstrip Road, East Coast Demerara. Dukhi, it said, was standing with his bicycle on the road when he was struck by a pick-up truck belonging to GuySuCo and which was driven by GuySuCo’s 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 $2,794,000 was 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, and he argued later that he would require neurological intervention in the future.
GuySuCo’s defence, also amended during the trial, claimed that Dukhi “negligently” rode his bicycle into the path of the pick-up truck, thereby causing the accident. It also alleged that his amendment was a new claim and ought to be dismissed as it fell outside the limitation period, to which Dukhi replied that the additional personal injuries claimed were causally related to the accident.
The summary said in July, 2009, on the eve of her retirement from the Bench, the trial judge made an order giving judgment in favour of Dukhi and awarding damages in the sum of $850,000, together with costs in the sum of $50,000 and interest at the rate of 6% from February 25, 1998, to July 13, 2009, and thereafter at a rate of 4% per annum until payment.
“The judge did not provide either written or oral reasons for her decision,” it noted, while adding that Dukhi promptly appealed the award of damages, arguing that it was “wholly inadequate and inordinately low and that the trial judge failed to take into account that the evidence in support of the alleged special damages was uncontradicted and unchallenged.”
17 years later
The Court of Appeal finally heard the appeal in 2015, some 17 years after it was filed.
It set aside the trial judge’s award and increased the quantum of damages to $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 summary noted.
It said that 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 the 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.
The Court of Appeal subsequently set aside the trial judge’s award and re-assessed the damages to be awarded to Dukhi. It made an award in relation to loss of earnings for two separate periods in the sums of $1,178,000 and $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, it was explained, therefore awarded the sum of $2,218,000 in special damages, with interest at 6% per annum from the date of the writ to judgment in the High Court and at 4% thereafter until payment in full. The Court of Appeal also awarded general damages in the sum of $1,728,000 for loss of future earnings and $1,500, 000 for pain and suffering with interest on the sum of $1,500,000 at the same rate as the special damages.
With leave having been granted by the Court of Appeal, GuySuCo filed a notice of appeal 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, meanwhile, 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 $1,500,000.00 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 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. Dukhi also challenged the interest awarded by the Court of Appeal, and therefore sought a further re-assessment of damages by the CCJ.
In relation to the absence of reasons, GuySuCo argued that this was made worse by the conflicting evidence of Dukhi and his witness, as well as the contradictory medical evidence from the two doctors, and suggested that a reasonable inference from these contradictions is that the trial judge found a measure of contributory negligence on the part of Dukhi and thus reduced the damages accordingly.
Liability
However, the CCJ 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 CCJ said, although it stressed the importance of the duty of the trial judge to give reasons. The judgment summary noted too that the CCJ also indicated that the failure to give reasons could give rise to a “breach of the right to a fair trial” as was evident from the jurisprudence of the European Court of Human Rights surrounding Article 6 of the European Convention.
“It was noted that the legislature of Guyana has sought to deal with the failure of judges to give reasons or to do so within a reasonable time by the enactment of the Time Limit for Judicial Decisions Act 2009, but the Court suggested that, where a judge is due to demit office, the chief judge ought to put in place appropriate administrative processes which would ensure the delivery of all outstanding reasons of the judge,” it stated.
Further, the Court 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 from the Court of Appeal of Guyana. “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. This was easily satisfied by the uncontradicted evidence of Dukhi, which showed that a single item of the claim, loss of earnings for the first period after the accident which amounted to G$1,291,400 after tax, by itself exceeded the global sum awarded by the trial judge,” it said.
According to the judgement, the CCJ hesitated to agree with the Court of Appeal but on the facts of this case the making of a global award by the trial judge amounted to “an error of law solely on the basis of the failure to itemise the damages, though it did consider itemisation to be the better and prevailing practice.”
In considering whether to review the award of damages made by the Court of Appeal, the CCJ also applied the test that it will only do so if convinced that the Court of Appeal acted on some wrong principle of law or made an award that was so high or low as to amount to an entirely erroneous estimate of damages to which Dukhi was entitled.
As a result, it only made adjustments for obvious errors in the calculations of loss of earnings. In relation to general damages for pain and suffering and loss of amenities, the Court was not persuaded that the Court of Appeal failed to take all the relevant matters into consideration, and thus upheld the award of $1,500,000. Likewise, it did not interfere with the multiplicand used for loss of future earnings, leaving the Court of Appeal’s order of G$1,728,000. The Court also held that Dukhi failed to prove that there was an unbroken chain of causation between the accident and any future medical interventions such as to warrant an award of damages under this head.
According to the CCJ, GuySuCo’s claim that increasing the quantum of damages without sufficiently explaining the rationale underlying this re-assessment violated its Constitutional right to a fair hearing under Article 144(8) was also rejected by the Court, which noted that “in any event, GuySuCo is not without a remedy in the circumstances of this case, as evidenced by its appeal to this Court which is constitutionally empowered to correct any errors contained in the judgment of the Court of Appeal.”
It was on these grounds that the CCJ dismissed GuySuCo’s appeal and allowed the cross appeal in part, adjusting the loss of earnings for the two periods to $1,291,400 and $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.
