Guyana Sugar Corporation v Dukhi
| Jurisdiction | Caribbean States |
| Judge | Nelson, J. CCJ. |
| Judgment Date | 25 July 2016 |
| Court | Caribbean Court of Justice |
| Docket Number | CCJ Appeal No. GYCV2015/005; GY Civil Appeal No. 57 of 2009 |
| Date | 25 July 2016 |
Caribbean Court of Justice
Nelson, J. CCJ.; Saunders, J. CCJ.; Wit, J. CCJ.; Anderson, J. CCJ.; Rajnauth-Lee, J. CCJ.
CCJ Appeal No. GYCV2015/005; GY Civil Appeal No. 57 of 2009
Mr. Kamal Ramkarran for the appellant.
Ms. Jamela A. Ali and Mr. Sanjeev Datadin for the respondent.
Civil Appeal - Personal injury — Whether the Court of Appeal was precluded from re-assessing the award of damages in the absence of the written reasons of the trial judge — Duty of trial judge to give reasons — Whether the Court of appeal was entitled to set aside the award of damages and re — assess damages — Whether the Court should interfere with the award of the Court of Appeal — General and Special damages — Deduction of taxation — Pain and suffering and loss of amenities — Loss of earning capacity — Future medical cost — Causation — Right to a fair hearing.
[1] This appeal arises out of a road traffic accident which occurred on July 15, 1997 on the Ogle Airstrip Road, East Coast Demerara, Guyana. Tulsieram Dukhi (Dukhi) was standing with his bicycle on the road when he was struck by a pick-up truck belonging to the Guyana Sugar Corporation Inc. (Guysuco) and driven by Guysuco's employee, Michael Thakoordin (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$2,794,000.00 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. They 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. Dukhi, Simon Agard, an eye-witness to the accident, and Dr. Ramsahoye, a neurologist, gave evidence in support of Dukhi. The medical report of Dr. Rogers, who had treated Dukhi after the accident, was admitted into evidence without objection but he did not testify at the trial. Guysuco and Thakoordin presented no evidence before the trial judge
[2] 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 G$850,000.00, together with costs in the sum of G$50,000.00 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. 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. 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.
[3] In 2015, the Court of Appeal allowed the appeal, setting aside the trial judge's award and increasing the quantum of damages to G$5,446,000.00. 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. The Court of Appeal agreed with the Flint v. Lovell [1935] 1 K.B. 354 test for appellate review of an award of damages and held that both limbs of the test had been satisfied, as the trial judge erred in law in failing to itemise the various heads of damage which the court viewed as an absolute requirement in modern practice [Citing McGregor on Damages, 15th ed. para. 1447, George v. Pinnock [1973] 1 W.L.R. 118, Jefford v. Gee [1970] 2 Q.B. 130.], 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.
[4] The Court of Appeal made an award in relation to loss of earnings for two separate periods in the sums of G$1,178,000.00 and G$824,000.00 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 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 G$1,728,000.00 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.
[5] 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 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$1,500,000.00 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 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 this Court. The appeal to this Court came some 19 years after the accident.
[6] 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. The Court rejected these submissions, 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 stressed, however, the importance of the duty of the trial judge to give reasons, agreeing with several decisions of the English Court of Appeal which have considered the trial judge's duty to give reasons [See Eagil Trust Co. Ltd. v. Pigott-Brown [1985] 3 All E.R. 119, Flannery and another v. Halifax Estate Agencies Ltd. [2000] 1 All E.R. 373, and English v. Emery [2002] 3 All E.R. 385]. The Court also indicated that the failure to give reasons could give rise to a breach of the right to a fair trial. This is evident from the jurisprudence of the European Court of Human Rights surrounding Article 6 of the European Convention. [See Helle v. Finland [1997] E.C.H.R. 20772/92, Hirvisaari v. Finland (Application No. 49684/99) (2001) 38 E.H.R.R. 139, [2001] E.C.H.R. 49684/99, ECtHR, and Karakasis v. Greece (2003) 36 E.H.R.R. 507, at para 27] 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.
[7] 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: see Heeralall v. Hack Bros (1977) 25 W.I.R. 117 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$1,291,400.00 after tax [Adjusted from the Court of Appeal's...
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