-1- IN THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV 2009-00259 BETWEEN KESTON KIRK Claimant AND CARIBBEAN AIRLINES LIMITED Defendant Claim No. CV 2009-00889 BETWEEN NATHALIE DUNCAN-MONDESIR Claimant AND CARIBBEAN AIRLINES LIMITED Defendant Claim No. CV 2009-00413 BETWEEN DEONATH SINGH Claimant AND CARIBBEAN AIRLINES LIMITED Defendant Appearances For the Claimant: Mr. Thompson For the Defendant: Mr. Nanga Instructed by Ms. Bissessar Date of Delivery: 13 th January 2016 JUDGEMENT
Transcript
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IN THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
Claim No. CV 2009-00259
BETWEEN
KESTON KIRK
Claimant AND
CARIBBEAN AIRLINES LIMITED
Defendant Claim No. CV 2009-00889
BETWEEN
NATHALIE DUNCAN-MONDESIR
Claimant
AND
CARIBBEAN AIRLINES LIMITED Defendant
Claim No. CV 2009-00413
BETWEEN
DEONATH SINGH
Claimant
AND
CARIBBEAN AIRLINES LIMITED Defendant
Appearances For the Claimant: Mr. Thompson For the Defendant: Mr. Nanga Instructed by Ms. Bissessar Date of Delivery: 13th January 2016
JUDGEMENT
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THE CLAIM
[1] These actions were commenced by 3 separate Claim Forms and Statements
of Case filed on 6th February, 2009. The Statements of Case were
subsequently amended on 20th May, 2011.
[2] The Defendant filed its Defences in these matters on 23rd March, 2009. By
Order of the Honourable Justice Delzin (as he then was) these matters
were consolidated. On the basis that liability was not in issue, the matter
proceeded to the assessment of damages.
[3] The Claimants’ claim against the Defendant is for damages for personal
injuries and consequential losses caused by the negligence of the
Defendant, its servants or agents. The Claimants all claim that on 17th day
of November 2008 they were passengers in an aircraft owned and operated
by the Defendant. Whilst they were seated in this aircraft at Piarco
International Airport the cabin was suddenly depressurized. As a result
they sustained injury their ears with resultant pain, suffering, loss and
damage.
[4] Although the cases were consolidated for the purpose of these assessments
I will deal with each Claimant individually.
[5] All the Claimants submitted that the damages to be awarded in these cases
fell to be assessed under the Montreal Convention which provides that
damages are at large in negligence claims. They assert that these claims do
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not fall under the Warsaw Convention which limit claims for loss arising
from negligence. The Defendant, on the other hand, argued that not only
did those claims fall under the Warsaw Convention which limited
damages arising out of the Defendant’s negligence to the sum of 125,000
francs but that this Court had already determined this issue.
In light of the decision that I have arrived at in those matters it did not
become necessary to determine this issue since the awards in these claims
fell below the minimum award provided for under the Warsaw
Convention.
KESTON KIRK
The Evidence
Witness Statement of Keston Kirk
[6] This Claimant filed a witness statement on 31st January 2011 in which he
testified that when the cabin became depressurized he began having
breathing problems. The aircraft was evacuated shortly afterward and
upon disembarkation he began to experience severe pain in both ears. He
stated further that he visited Dr. Ali on the said day and the latter referred
him to Dr. Solaiman Juman, an otolaryngologist. He asserted that the pain
in his ears persisted and this caused him to seek treatment from Dr. Aziz, a
consultant otolaryngologist. Despite this further treatment his pain and
discomfort continued and as a result he visited one Dr. Austin Trinidade,
an Ear Nose and Throat specialist on 7th day of August 2009. Dr. Trinidade
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examined him and issued a medical report also dated 7th August 2009. In
that report Dr. Trinidade indicated that an audiogram was conducted on
this Claimant which revealed a 30 decibel hearing loss in the right ear but
that the left ear was normal. The doctor opined that the Claimant was
“probably” suffering from baro trauma which should resolve.
[7] The Claimant testified that he continued to suffer pain and discomfort
despite treatment from the above mentioned doctors. Consequently on 10th
July 2009 he sought further medical attention from one Dr. Wendell
Dwarika, an otolaryngologist. On the 11th day July 2009 Dr. Dwarika
prepared a written medical report for the Claimant in which he opined
that the Claimant had suffered a bilateral moderately severe hearing loss
of all frequencies and that the Claimant’s hearing impairment was fifty
two percent in both ears and irreversible. He recommended the use of a
hearing aid for Mr. Kirk.
For the purposes of this assessment Mr. Kirk relied upon the medical
evidence of Dr. Austin Trinidade and Dr. Dwarika.
[8] This Claimant, a 30 year old police officer, testified that the injury has
adversely affected him in the performance of his duties. He claimed that he
continues to suffer severe pain and discomfort in both ears – he cannot
hear properly, he is very sensitive to noise and that his pain is aggravated
by noise. This witness also asserted that before the incident which led to
his injury on 17th November 2008 he had had no hearing problems. He also
submitted a claim for special damages as follows:
i. Medical expenses - $1,640.00
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ii. Travelling expenses - $200.00
The Claimant was not cross examined.
Dr. Trinidade
[9] Dr. Austin Trinidade testified before me on 16th November 2013. He was
cross examined by Mr. Nanga on the basis of his medical report filed
herein on 29th June 2012. In answer to Mr. Nanga he testified that a hearing
loss of 30 decibel is a mild hearing loss1. He also testified that when he
opined that the Claimant suffered a baro trauma which should resolve he
meant that the hearing will return to an acceptable level. He was not aware
of what the Claimant’s previous hearing was like. It was his view that the
Claimant’s hearing may not return to zero which is considered normal
hearing2.
Dr. Dwarika
[10] The other medical evidence relied upon by the Claimant was that of Dr.
Wendell Dwarika. He filed a witness summary on the 31st January 2011 in
which he repeated the contents of his medical report referred to above.
This witness was also cross-examined by Mr. Nanga on behalf of the
Defendants.
1 Transcript of the 16th November 2013, page 6 2 Transcript of the 16th November 2013, page 6
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[11] Dr. Dwarika testified that he conducted an audiogram on the Claimant on
10th July 2009. At this time the hearing loss in his right ear was 55 decibels.
In response to a question from Counsel he stated that it would be highly
unlikely that a patient could have sustained hearing loss of 55 decibels on
10th July 2009 and a finding a 30 decibel hearing loss could be made on 7th
August 2009. It was his view that this discrepancy could arise if there was
a problem with the machine used to conduct the audiogram or if the
patient was not totally honest. He also explained that a patient can cheat
on the test3.
[12] Dr. Dwarika further testified that he recommended a hearing aid to Mr.
Kirk which would have assisted him by amplifying sound in both ears. He
further stated that he would be surprised if on the 10th July 2009 there was
no hearing loss in the left ear4. As to the cause of the “bilateral moderately
severe hearing loss of all frequencies” the doctor opined that there are
many causes such as trauma, tumors, a congenital condition or drug use5.
Significantly, Dr. Dwarika stated that the medical report does not identify
the cause of the loss of hearing in this case because it would not be possible
to do so6.
3 Transcript of the 16th November 2013, page 13
4 Transcript of the 16th November 2013, page 14
5 Transcript of the 16th November 2013, page 14
6 Transcript of the 16th November 2013, page 15
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[13] In re-examination Mr. Thompson and the witness had the following
exchange:
Q: “In your professional opinion such an incident – an aircraft
becoming depressurized could have caused that injury to the
ear?”
A: “Depressurization of the ear can cause some degree of
Eustachian Tube damage and it may cause a mild drop in the
hearing but usually it would be temporary.”
He clarified that he was referring to depressurization in an aircraft.
SUBMISSIONS ON BEHALF OF THE CLAIMANT
[14] This Claimant submitted that the Court ought to accept the medical
evidence adduced on his behalf, particularly the evidence of Dr. Dwarika,
that Mr. Kirk’s injury was serious and his hearing impairment was fifty
two percent in both ears. Counsel for the Claimant acknowledged that
expert evidence can be accepted or rejected by the tribunal of fact; he,
however, urged the court to accept Dr. Dwarika’s medical evidence as
stated above.
[15] In his submissions in reply filed on 21st February 2014 the Claimant
submitted that the issue of liability was not relevant on an assessment of
damages. He further argued that the Court should not take into account
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the evidence of Dr. Dwarika relating to causation – (that it was unlikely
that the depressurization of the cabin could have caused the Claimant’s
hearing impairment and that depressurization would usually cause a mild
temporary drop in hearing). He submitted that the Defendant having
admitted liability, this issue was no longer before the court. The only
remaining issue in these circumstances was the quantum of damages due
to the Claimant. He contended that the Defendant’s admission of liability
was unconditional. They filed no defence on the issue of contributory
negligence. In these circumstances the Court ought to disregard any
submissions of the Defendant on the issue of liability.
SUBMISSIONS ON BEHALF OF THE DEFENDANT
[16] The Defendant submitted that in assessing the quantum of damages
payable to the Claimant the Court must take into account all questions
relating to the quantification of such damages including the question of
causation in relation to the particular heads of loss claimed by the
Claimant.
[17] The Defendant further submitted that whilst Kirk was not cross-examined
the onus was upon him to prove his loss in relation to his claim for special
damages. The Claimant having failed to annex any receipts in support of
his claim for medical expenses and transportation expenses, the Defendant
submitted that the Court should make no award under this head.
[18] Counsel for the Defendant urged this Court to have regard to the evidence
of Doctors Trinidade and Dwarika who testified in this matter. He
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contended that based on Dr. Trinidade’s evidence that there was mild
hearing loss of 30 decibels in the right ear only which he expected to
resolve; the Claimant’s injury was therefore a minor one and should be
assessed as such. He drew the Court’s attention to Dr. Dwarika’s evidence
that it was unlikely that depressurization would have caused this
Claimant’s hearing loss; that it was possible for a patient to be dishonest
during the test thereby affecting the outcome; and that it was highly
unlikely that a patient could have such differing results (the reports of Dr.
Trinidade and Dr. Dwarika). He suggested that although the Claimant
complained of severe pain, this is not supported by the medical evidence.
It is also noteworthy that the Claimant sought no further medical
attention.
ANALYSIS & CONCLUSION
[19] The first issue that I must determine from the evidence before me is
whether I could properly have regard to the issue of liability on the
assessment of damages. Both sides relied upon the case of Lunnun v
Singh and others7. In this case the Claimant Mr. Lunnun owned a
property adjacent to the Defendants’ sikh temple. He brought an action
against the Defendants claiming injunctive relief and damages in respect of
an alleged leakage of water and sewage onto his property from a cracked
pipe in the temple buildings. A judgement in default was entered against
the Defendants. On the hearing of the assessment of damages, the judge
ruled on a preliminary point of law that the Defendants could not argue
that any damage to the Plaintiff’s cellar caused by water leakage was from
7 Times Law Reports 1999 page 541
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a source other than the Defendants’ sewer, nor could the Defendants
assert, in particular, that there were other sources of water damage. On
appeal the Court of Appeal held that on an assessment of damages any
point going to quantification of damage could be raised by the Defendant
provided it was not inconsistent with any issue settled by the judgement
on liability.
Lord Justice Gibson delivering the judgement of the court opined8:
“The causative effect of a Defendant’s acts or omissions must at least
establish the Defendant’s liability for those acts or omissions, but the
Defendant could still argue on assessment that those acts or omissions
were not causative of the particular loss…Just as a Defendant in a
personal injury action could challenge particular heads of damage, so it
was open to the Defendants here to challenge particular heads of damage
as caused by water from its cracked sewer pipes. The principle was that
on an assessment of damages any point going to quantification of damage
could be raised by the Defendant provided that it was not inconsistent
with any issue settled by the judgement.”
[20] The authors of Blackstone’s Civil Practice9 state:
“A default judgement on liability for an amount to be decided by the
Court is conclusive on liability in respect of all matters pleaded. But all
questions going to quantification of the damage remain open. Any point
may be raised by the Defendant at the assessment of damages provided it
8 Page 541 9 2015 paragraph 20.6, paragraph 42.52
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is consistent with the judgement on liability. Thus it is not open to the
Defendant to say that its acts or omissions had not caused any damage,
but it could say that its acts or omissions had not caused certain
individual items of damage.”
[21] It is clear from the learning that whilst a Defendant cannot raise the issue
of liability at large after he has admitted liability or judgement has been
taken up against him, he is entitled to raise causation in relation to the
particular heads of loss claimed by the Claimant. One of the heads of loss
in this claim is damages for injury, pain and suffering as a result of the
depressurization of the cabin in one of the Defendant’s aircraft. The
Defendant admitted that the Claimant suffered pain and discomfort in the
ear but denied that he experienced any breathing difficulty. It fell to the
Claimant to prove that the injury, pain and suffering for which he claimed
were as a result of the incident that he described on 17th November 2008. I
note also that it was the Claimant’s attorney in re-examination who raised
the issue as to whether the Claimant’s injury was as a result of the
depressurization of the cabin.
Having regard to the authorities above I hold that I can take into account
the evidence of causation in this case in determining whether the
Defendant had caused certain items of damage as a result of its negligence.
[22] As noted above, Dr. Trinidade diagnosed the Claimant as suffering from
baro trauma which involved a temporary hearing loss of 30 decibels in his
right ear and no hearing loss in his left ear. He described this hearing loss
as mild. Although Dr. Dwarika found hearing loss of fifty two percent in
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both ears which he categorized as severe, I had regard to all of this
evidence in this case. Significantly, he testified that it would be highly
unlikely within the period of a month for the Claimant’s audiogram to
show a difference of approximately twenty five decibels of hearing loss in
the right ear and a total of fifty five decibels in the left ear. It was in this
context that Dr. Dwarika revealed that it was a possible for a patient to
cheat during the examination by falsifying his responses to the questions
asked of him during the audiogram to produce this disparity in results.
The doctor also opined that it would be impossible for him to identify the
cause of the hearing loss that he found when he conducted an audiogram
on the Claimant. Indeed he went on to state that bilateral hearing loss on
all frequencies can be caused by a number of factors including trauma,
congenital, tumors and drug use. I also have regard to his evidence that it
is unlikely that depressurization in an aircraft can cause the injury and
hearing loss that he found when he examined the Claimant. He went on to
clarify that depressurization can cause Eustachian Tube damage which is a
mild temporary drop in hearing.
[23] Dr. Dwarika’s evidence, as a whole, casts doubt on the Claimant’s claim of
significant hearing loss resulting from depressurization whilst seated in
one of the Defendant’s aircraft. Both Dr. Dwarika and Dr. Trinidade
appear to agree that the hearing loss resulting from depressurization in a
cabin would be mild and temporary. I therefore came to the conclusion
that the doctors’ evidence as a whole casts doubt on the Claimant’s claim
of significant hearing loss as a result of depressurization.
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[24] Having regard to all of the medical evidence in this case I conclude on a
balance of probability that the Claimant suffered mild reversible hearing
loss as a result of the depressurization of the aircraft owned by the
Defendant. I accept Dr. Dwarika’s evidence that it is unlikely that a patient
could experience such a difference in hearing loss over a short period of
time as revealed in the evidence in this case. I therefore accept Dr.
Trinidade’s evidence that the Claimant suffered a mild reversible hearing
loss caused by baro trauma. I am of the view that this Claimant suffered a
minor injury and should be compensated accordingly. The cases relied
upon by the Claimant in support of an award are cases where the Claimant
suffered far more serious injury than that sustained by this Claimant.
Having come to the conclusion that this is a relatively minor injury which
should have resolved, I therefore award him the sum of $35,000.00 as
general damages.
[25] With respect to his claim for special damages no receipts have been
annexed in relation to his claim for transportation. However, I do note
from the evidence that he visited several doctors in Trinidad and adduced
their evidence in support of his case. This Claimant lives in Tobago. I
therefore award him the sum of $600.00 for transportation. In his
Amended Statement of Case this Claimant sought $1,640.00 for medical
expenses; again no receipts were attached. I consider this to be a
reasonable sum and so I award him this figure for medical expenses.
[26] I therefore order that the Defendant pay to the Claimant:
i. General damages in the sum of $35,000.00 with interest at the rate of
six percent from 6th February 2009 to 13th January 2016,
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ii. Special damages in the sum of $3,240.00 with interest at the rate of
three percent from 17th November 2008 to the date of judgement,
13th January 2016,
iii. Each party to bear their own costs.
ANGELA WHIGHT
Evidence
Witness Statement of Angela Whight substituted by Nathalie Duncan-Mondesir
[27] This Claimant, like the other two in these cases, filed a claim against the
Defendant seeking damages, interest and costs as a result of injury that she
sustained whilst a passenger in the Defendant’s aircraft on 17th November
2008 when the cabin of said aircraft suddenly depressurized.
[28] This Claimant died on the 8th January 2012 and was substituted by her
daughter Nathalie Duncan-Mondesir on 27th February 2012.
[29] This Claimant’s witness statement was filed on the 31st January 2011. She
testified that when the cabin of the Defendant’s aircraft became
depressurized she began experiencing breathing problems and severe pain
in her ears. There was an emergency evacuation of the aircraft and the
Claimant continued to experience pain in her ears after disembarkation.
[30] She attended Dr. Ali on the said day and was referred to a Dr. Solaiman
Juman, an otolaryngologist, whom she visited 20th November 2008. After
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her visit to Dr. Juman the Claimant continued to experience pain in her
ears and sought medical attention from Dr. Wendell Dwarika also an
otolaryngologist on the 5th December 2008. She continued to experience
pain and discomfort and visited Dr. Dwarika again on the 11th July 2009
for further medical attention and advice.
[31] The Claimant testified that as a direct result of the injury she continued to
suffer severe pain and discomfort in her ears. She asserted that as a result
she could not hear properly and that prior to 7th November 2008 she had
had no hearing problem.
[32] She also denied that the Defendant’s liability is limited to 125,000 French
francs under the Warsaw Convention. She argued that her claim for
damages for personal injury falls under the Montreal Convention where
liability for negligence is excepted. Accordingly, the witness testified that
damages are at large.
[33] Medical evidence consisted of two medical reports from Dr. Dwarika
dated 5th December 2008 and 11th July 2009. Dr. Dwarika also gave two
witness summaries in respect of this witness. Both were filed on 31st
January 2011.
Dr. Dwarika
[34] In his witness summary Dr. Dwarika testified that he attended the
Claimant on 26th November 2008 at his office. She reported that while
sitting in an aircraft at Piarco International Airport she experienced
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significant pain in her ears. He testified that he examined her and
diagnosed Eustachian Tube dysfunction. He also found her to be suffering
from facial pain caused by sinus congestion. He recommended that she use
a nasal spray for her congestion. He also stated that her “medical problem”
would improve over the course of a few weeks. He prepared a medical
report dated 5th December 2008. In that report he outlined that upon
examination her ear canal and tympanic membrane were normal. A
screening test done for hearing proved satisfactory.
[35] In the second summary also filed on 31st January 2011 Dr. Dwarika
testified that he saw the patient on 10th July 2009 subsequent to her earlier
visit for review. She complained that her hearing was still reduced in both
ears but there was no associated tinnitus or vertigo. This Claimant also
complained of headaches on the right side of her head. On examination the
ear canal and tympanic membranes were again normal. An audiogram
revealed a bilateral low frequency hearing loss. A tympanogram revealed
normal middle ear pressure.
[36] Dr. Dwarika opined that based on the level of hearing loss the percentage
of hearing impairment for both ears was approximately twenty eight
percent and this is irreversible. This Claimant was advised to take
measures to protect her hearing such as avoiding exposure to loud noises
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Cross examination of Dr. Dwarika by Mr. Nanga
[37] In answer to Counsel, Dr. Dwarika stated that he saw this witness about
ten days after the incident. She complained of pain behind the eye10,
however she did not complain of pain in the ear just that it was blocked11.
There was no hearing loss at this time. The screening test performed on the
Claimant was not a detailed hearing assessment; it is basically used as a
screener to determine if one needs to go on to a more detailed assessment.
He asserted that Eustachian Tube dysfunction had nothing to do with the
incident on the 17th November 2008. Dr. Dwarika found nothing seriously
wrong with the Claimant on this visit12.
[38] With respect to the report dated 11th July 2009 the doctor testified that it
was difficult to say what would have caused the low frequency bilateral
hearing loss that he had diagnosed the witness to be suffering from. In
answer to counsel he indicated that he would hesitate to say that
Eustachian Tube dysfunction could cause that type of hearing loss because
he had conducted a tympanogram on the patient which showed that the
Eustachian Tube was functioning normally. He therefore opined that it
was unlikely that the Eustachian Tube dysfunction could have caused the
bilateral low frequency hearing loss. In answer to Mr. Thompson in re-
examination Dr. Dwarika stated that on the second examination he
conducted on this Claimant he found that she had a mild to moderate low
tone hearing loss.
10
Transcript of the 16th November 2013, page 22, 23 11
Transcript of the 16th November 2013, page 23 12
Transcript of the 16th November 2013, page 25
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SUBMISSIONS ON BEHALF OF THE CLAIMANT
[39] Mr. Thompson again submitted that the evidence elicited from Dr.
Dwarika on the issue of causation was inadmissible since the Defendant
had already admitted liability. He relied upon the same authority Lunnun
v Singh and others in support of his contention. Counsel submitted in the
alternative that if causation was relevant the court ought to take into
account the evidence of Dr. Aziz on behalf of the other Claimant Deodath
Singh since all the Claimants suffered injury in the same circumstances
and at the same time.
[40] Counsel submitted further that while expert evidence may be accepted or
rejected by the tribunal of fact, the court ought in these circumstances to
accept Dr. Dwarika’s evidence that the Claimant suffered hearing loss of
twenty eight percent in both ears.
[41] On the issue of damages to be awarded this Claimant, Counsel relied upon
several personal injury cases where the Claimants suffered injury that was
far more serious than that suffered by this Claimant. Counsel
acknowledged that he could find no case in this jurisdiction on all fours
with that of the Claimant. However, he urged this Court to rely upon the
authority of Sudan v Carter and Jardine Thom13 where the Claimant
suffered a twenty five percent hearing loss as a result of a perforated ear
drum and displacement of bones in the inner ear and was awarded the
sum of $120,785.00 (updated at December 2010). He submitted in the
13 HCA No. 1735 of 1990
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round that the Claimant Angela Whight should be awarded a sum in the
range of $190,000.00 to $225,000.00 for pain, suffering and loss of
amenities. He claimed special damages in the sum of $3,700.00 which
included the cost of Dr. Dwarika’s attendance in court.
SUBMISSIONS ON BEHALF OF THE DEFENDANT
[42] The Defendant repeated his submission on the issue of causation. The
Defendant admitted that when the pressurization occurred some
passengers began experiencing pain and discomfort in the ear but there
were no complaints of breathing difficulty. They further submitted that if
this Claimant continued to experience pain, the Defendant will maintain
that it is as a result of Eustachian Tube dysfunction as diagnosed by Dr.
Dwarika and not as a result of the Defendant’s negligence. He argued,
following Lunnun supra, that while the Defendant is liable for some
damage it is for the Claimant to prove the extent of those damages. In this
regard the issue of causation remains live at the assessment. He argued
that Dr. Aziz gave no evidence on behalf of Ms. Whight – he did not
examine her and therefore his evidence cannot be taken into account with
respect to this Claimant. In any event he argued that Dr. Aziz’s evidence is
not relevant to any of the claims in this matter.
Mr. Nanga invited the court to have regard to the medical evidence of Dr.
Juman annexed to the witness statement of the Claimant.
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[43] Mr. Nanga on behalf of the Defendant further submitted that Dr. Dwarika
could not say what caused the hearing loss of twenty eight percent in this
Claimant. He argued that there is no evidence that the Claimant’s hearing
loss and headaches to the right side of her head were linked to the
incident. He also contended that the evidence does not support that Ms.
Whight suffered severe pain since there is no evidence that she continued
to seek medical attention which would have been the case if she had been
experiencing severe pain. He submitted in the round that there was no
permanent injury suffered by this Claimant - that she would only have
suffered some discomfort which would have resolved. The Defendant
argued that this was a minor injury in respect of which the Court should
only award $10,000.00 in general damages. Counsel submitted further that
having regard to the sum of damages which should be awarded the issue
as to whether the provisions of the Warsaw Convention applied was not a
live one.
[44] With respect to special damages it was pointed out by the Defendant that
no receipts were attached in support of the Claimant’s claim for medical
expenses of $2,190.00 and transportation costs of $600.00. He also
highlighted that the Claimant had pleaded a figure of $700.00 for medical
expenses which was increased to $2,190.00 without explanation. He
submitted that if the court was minded to award a sum for medical
expenses and transportation costs it should be limited to the figure
pleaded in the Claim Form and Statement of Case.
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ANALYSIS & CONCLUSION
[45] The issue as to whether the Defendant could raise causation with respect
to the quantification of damages was also raised in this claim. I already
ruled in the Keston Kirk claim that the Defendant can raise the issue of
causation once it was not in conflict with his admission of liability. The
Defendant, in admitting liability in this case, limited the admission to the
fact that the Claimant would have suffered some discomfort and pain. In
my view the Defendant is entitled to raise the issue of causation with
respect to every head of damage raised by the Claimant. I am therefore
entitled to assess the medical evidence in order to determine whether the
Defendant’s negligence caused the particular injury in respect of which the
Claimant seeks damages.
[46] The Defendant admitted that when the pressurization occurred some
passengers began experiencing pain and discomfort in the ear but there
were no complaints of breathing difficulty. They further submitted that if
this Claimant continued to experience pain, the Defendant will maintain
that it is as a result of Eustachian Tube dysfunction as diagnosed by Dr.
Dwarika and not as a result of the Defendant’s negligence.
[47] This Claimant seeks compensation for hearing loss of twenty eight percent
in both ears as diagnosed by Dr. Dwarika on her second visit to him some
eight months after the incident. The claim for loss of amenities, pain and
suffering relative to this injury must be linked to the Defendant’s
negligence on the 17th November 2008. However, I have regard to the
evidence of Dr. Dwarika who testified that it was difficult to say what
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would have caused the low frequency hearing loss. He also testified that it
was unlikely that Eustachian Tube dysfunction which he had diagnosed
on his earlier examination of her on 26th November 2008 had had anything
to do with the incident of 17th November 2008. He also noted that when
this Claimant first visited him in November 2008 she did not complain of
pain in the ears, just that her ears were blocked.
[48] Having regard to the evidence of Dr. Dwarika I have come to the
conclusion that the Claimant has not established on a balance of
probabilities that any hearing loss that she may have suffered was as a
result of the depressurization of the aircraft belonging to the Defendant. I
find that she did suffer some discomfort after the depressurization but on
the evidence I do not accept that she suffered severe pain.
[49] It should be pointed out that no application was made to have Dr. Juman
treated as an expert witness in this case nor was he called to testify. I did
not determine this case on the basis of Dr. Juman’s evidence to which I
attached no weight.
[50] In the circumstances I consider this to be a minor injury suffered by the
Claimant and accordingly I award her the sum of $35,000.00 as general
damages. The Claimant has adduced no evidence in proof of her claim of
special damages, however, I note that she lived in Tobago and would have
had to travel to Trinidad to see Dr. Dwarika. She would have incurred
transportation costs and medical expenses.
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[51] I therefore order that the Defendant pay to the Claimant:
i. General damages in the sum of $35,000.00 with interest at the rate of
six percent from 6th February 2009 to 13th January 2016,
ii. Special damages in the sum of $1,000.00 with interest at the rate of
3% from 17th November 2008 to the 13th January 2016,
iii. Each party to bear their own costs.
DEODATH SINGH
Evidence
Witness Statement of Deodath Singh
[52] This Claimant like the other two filed a claim in negligence arising out of
the same incident on 17th November 2008. He too was a passenger in an
aircraft belonging to the Defendant whose cabin suddenly depressurized.
The Defendant in his case also admitted liability but only admitted that
this Claimant suffered some pain and discomfort as a result of the
depressurization of the aircraft aforesaid.
[53] This Claimant filed a witness statement on 31st January 2011. He testified
therein that he was a taxi driver and on 17th November 2008 he was seated
as a passenger on an aircraft owned by the Defendant bound for Tobago
when the cabin of the said aircraft suddenly depressurized. At the time the
other two Claimants in this matter, Keston Kirk and Angela Whight, were
also seated in the said aircraft. Mr. Singh stated that upon the aircraft
becoming depressurized he immediately experienced breathing problems
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and severe pain in his ears which continued after he disembarked from the
said aircraft.
[54] He too visited the office of one Dr. Ali who referred him to Dr. Solaiman
Juman, an otolaryngologist. He saw Dr. Juman on 20th November 2008 and
Dr. Juman gave him a medical report. Dr. Juman also filed a witness
summary in this case on 26th January 2011. In his witness summary Dr.
Juman testified that he treated the Claimant for ear stuffiness and
discomfort. He diagnosed the Claimant as suffering from a baro trauma
from which he expected the Claimant to recover fully.
[55] The Claimant testified that he continued to experience persistent pain in
his ears and sought medical attention from Dr. Mirza Ashraph, an
otolaryngologist, on 4th February 2009 (who also diagnosed the Claimant
as suffering from a baro trauma from which he expected the Claimant to
make a full recovery).
[56] This Claimant further testified that as a result of continued pain in his ear
he saw a consultant otolaryngologist, Dr. M. A. Aziz on 5th May 2009 who
examined him and submitted a medical report. This doctor was issued a
witness summons and he attended court. He gave evidence and was cross-
examined.
[57] This Claimant testified that since the date of the incident he has
experienced pain and discomfort in both ears. He alleged that he is
sensitive to noise and that this hearing impairment affected him adversely
in that he cannot hear properly to this day and is unable to ply his taxi. He
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also stated that prior to the incident in November 2008 he did not have any
hearing problems.
[58] He claimed by way of special damages the sum of $2,437.45 for medical
expenses and the sum of $300.00 a day from 18th November 2008 to 31st
January 2011 amounting to $117,000.00 for loss of earnings.
Dr. Mirza Ashraph
[59] Dr. Mirza Asraph filed a witness summary with a medical report attached
on behalf of this Claimant. He testified to having seen and examined Mr.
Singh on 4th February 2008. Upon examination he found the Claimant’s
audiogram and tympanogram were within normal limits. He testified that
Mr. Singh presented a history of “allegedly” suffering with baro trauma.
His opinion was that Mr. Singh’s complaint would resolve upon his
compliance with prescribed medications.
[60] This doctor was not called upon by the Claimant nor was he cross-
examined. Mr. Thompson for the Claimant submitted that he did not
intend to rely on the evidence of this witness since he had not signed his
witness summary. He further submitted that in the circumstances the
Court could not rely on his evidence.
[61] Dr. M. A. Aziz filed a witness summary on behalf of the Claimant on 31st
January 2011 which was signed by the Claimant’s attorney and not Dr.
Aziz. Attached to this witness summary was his medical report. Dr. Aziz
testified that he attended Mr. Singh on 5th May 2009 at his office. Mr. Singh
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complained of “hearing difficulty in both ears” upon a sudden change in
cabin pressure in an aircraft in which he was seated on 17th November
2008.
[62] Upon examination he found that there was a forty five percent “hearing
defect” in his left ear and thirty five percent “hearing defect” in his right
ear. A medical report dated 20th October 2011 was attached to Dr. Aziz’s
witness summary. In that report Dr. Aziz noted that there was no change
in hearing from tests conducted on 5th May 2009. He considered that this
hearing impairment was permanent.
[63] In his medical report dated 5th May 2009 Dr. Aziz reported the Claimant’s
history as that of decompression in an aircraft cabin and a high pitched
sound. An audiometry test showed forty five percent hearing loss in the
left ear and thirty five percent in the right ear. He advised medication. A
witness summons was issued for this witness and he gave evidence and
was cross-examined on 20th November 2011.
Dr. Aziz
[64] Dr. Aziz attended court on 20th November 2013 and was cross examined.
He testified that he is a retired Ear Nose and Throat consultant having
served in the public service for twenty nine years.
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[65] In examination in Chief14 he testified that hearing tests using an
audiometer are subjective. He testified that he found a forty five percent
loss in the left ear and thirty five percent loss in the right ear when he
examined the Claimant on 5th May 2009. During his later examination of
the Claimant on 20th October 2011 he conducted further tests and found
that there was no change in the readings.
[66] In cross-examination this witness testified that he prescribed medication
for the Claimant which he refused15. He explained that an audiometer is an
audiogram. He stated that he would not be surprised to know that in
February 2009 this Claimant was seen by Dr. Ashraph and his audiogram
and tympanogram were normal. He later stated that he found this a bit
strange16.
[67] During the cross-examination the following exchange took place between
Mr. Nanga and Dr. Aziz:
Q: “Dr. Aziz do you know what caused this patient’s
complaints?”
A: “From the history that he gave me there was a sudden
decompression and I supposed the aircraft was…at the
tarmac and there was a severe blast and what he
described was that the door was about to open and they
got an effect of that. There was a blast with a high
sound, a screeching sound.”
14 Transcript 20th November 2013 page 7 15 Transcript 20th November 2013 page 9 16 Transcript 20th November 2013 page 10
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Q: “So was it a high screeching sound?
A: “”Yes
Q: “That is what was described to you?”
A: “With the blast effect.17”
Q: So he described to you a blast and a high screeching
sound. Would you say that what you found in May 2009
was consistent with that?
A: Yes I think it was because I saw him 6 months after.
Q: Can there be any other explanation for the hearing loss
that you discovered in May 2009?
A: Well the both ears are involved and it fits in with this
acute acoustic trauma that he complained that he
suffered 6 months ago.
Q: Could there be any other explanation for the hearing loss.
A: There are several explanations: blast of gun or something
exploding but that would be in one ear.
Q: Anything else? What else could account for this type of
hearing loss in both ears?
17 Transcript 20th November 2013 page 10
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A: You will get that in someone who is working in an
industry where the decibel is very high over 95 to 100db.
Noise induced hearing and this comes under that.
Q: And independent of that high pitched noise that he
complained of had it not been for that high pitched noise
would his hearing been affected?
A: The hearing would not have been affected.
Q: So you believe it was the high pitched noise that cause
the hearing loss…
A: High pitch with the blast. You see noise and sound go
together and the sound creates the pressure effect. This is
why you have the sonic boom because of the low heavy
wave and the force preceding it. You also have the high
pitch sound that causes damage to the what we call the
hair cells in the cochlea.
Q: If the hearing loss was as a result of what occurred in
November of 2008 would that hearing loss be felt
immediately or would it take some time to manifest
itself?
A: You get it sometime immediately.
Q: If it is in February 2009 his audiogram was found to be
normal but in May 2009 this is what you found would it
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be correct to say that it is unlikely that the event in
November of 2008 caused his hearing loss?
A: I think so.
[68] This doctor was asked whether anything could have assisted the patient
with respect to the hearing loss which this doctor diagnosed. He indicated
that the Claimant was advised to avoid noisy surroundings and to take
vitamins to perk up the nerve endings. He went on to explain that with a
loss of thirty five decibels of hearing one would not need a hearing aid but
would be able to hear18. He clarified that the patient having suffered a
thirty five percent in the right ear he would not have needed a hearing aid
for that ear. However, he would need a hearing aid for the right ear which
suffered a forty five percent hearing loss19.
[69] In answer to Mr. Thompson in re-examination the witness opined that the
Claimant would have suffered some disability since at thirty five decibel
hearing loss does affect hearing and speech20.
[70] The Defendant elected not to call Dr. Juman in respect of whom a witness
summary had been filed.
18 Transcript 20th November 2013 Page 12 19 Transcript 20th November 2013 Page 13 20 Transcript 20th November 2013 Page 14
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SUBMISSIONS ON BEHALF OF THE CLAIMANT
[71] The Claimant submitted that the Court ought to accept Dr. Aziz’s
assessment on the Claimant’s hearing impairment of forty five percent in
his left ear and thirty five percent in this right. He acknowledged that Dr.
Aziz based his findings on the tests that he conducted as well as the
history the Claimant gave him of being seated in an aircraft and
experiencing severe depressurization and a blast.
[72] Mr. Thompson submitted however that the court ought not to take into
consideration any evidence relative to causation of the injury since the
Defendant had already admitted liability and the sole issue before this
court is that of the quantum of damages to be awarded the Claimant, the
Defendant having admitted liability. (The evidence of causation in this
case related to the testimony of Dr. Aziz that he based his findings in part
upon the history of the Claimant that he was subjected to sudden
decompression and a blast coupled with a high pitched screeching sound
while in the Defendant’s aircraft).
[73] It was also argued on behalf of this Claimant that it was not open to
counsel to cross-examine Dr. Aziz on Dr. Ashraph’s medical report since
that report had not been admitted into evidence. He further stated that the
Claimant neither relied upon the witness summary nor the medical report
of Dr. Ashraph.
[74] On the issue of damages the Claimant submitted that the finding of Dr.
Aziz amounted to a severe injury to the Claimant and an award of
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damages should be made on that basis. He relied upon several authorities
in which awards for serious injury to the ear were made and submitted in
the round that the court should award the Claimant the sum of $275,000.00
for pain, suffering and loss of amenities. He claimed special damages as
follows:
a) Loss of earnings - $117,000.00
b) Medical expenses - $7,437.00
[75] It was also this Claimant’s argument this his claim for damages was not
limited under the Warsaw Convention but was at large.
SUBMISSIONS ON BEHALF OF THE DEFENDANT
[76] The Defendant submitted that this Claimant had pleaded that his injury21
was caused by depressurization of the aircraft’s cabin. There was no
pleading about a blast and a high screeching sound. The Defendant
admitted liability on the basis of the Claimant’s pleading and not
otherwise. Counsel also asked the Court to take into account the fact that
even in his witness statement this Claimant did not attest to there being a
blast and high screeching sound at the time of the depressurization. He
went on to state that had a blast and high screeching sound been pleaded
the Defendant’s conduct and preparation of the trial would have been
affected in that whilst they would have accepted depressurization they
would have denied the presence of a high screeching sound and the blast;
they therefore would not have accepted liability.
21 Paragraph 5 of the Amended Statement of Case filed 20 May 2011
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[77] Counsel submitted that the medical evidence shows that it was the blast
and high screeching sound which caused the Claimant’s injury and not the
depressurization; accordingly the court could not determine that
depressurization caused the Claimant’s loss. The cause of the Claimant’s
injury, he submitted, could not be attributed to the negligence of the
Defendant.
[78] The Defendant relied upon the medical report of Dr. Juman in submitting
that the Claimant did not suffer any major injury as a result of the incident.
[79] With respect to special damages, Mr. Nanga submitted that it was
incumbent on the Claimant to prove his loss of earnings as a taxi driver
and his medical expenses; the Claimant having failed to annex any
receipts, no award for special damages should be given him. The
Defendant further submitted that on the basis of the evidence the
Claimant’s injury was caused by a blast and high screeching sound which
was not related to the incident giving rise to the claim as pleaded. He
therefore argued that medical expenses were not payable.
[80] He contended that even Dr. Aziz did not say that the Claimant was unable
to drive or earn an income as a taxi driver. Indeed his evidence was that a
hearing aid would assist the Claimant in his day to day functions. It was
further argued by the Defendant that the Claimant’s claim of severe pain
was not supported by the evidence; even if such pain did exist it is not
attributable to depressurization of the Defendant’s aircraft but to a blast
and a high screeching sound.
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ANALYSIS & CONCLUSION
[81] As before, I hold that the Defendant is entitled to raise the issue of
causation with respect to the heads of damage claimed by the Claimant. As
such, the evidence of Dr. Aziz as to the cause of injury and hearing
impairment that he found in this Claimant is relevant and admissible. I
have come to the conclusion that Dr. Aziz’s finding of a forty five percent
hearing loss in the Claimant’s left ear and thirty five percent in his right
ear is not attributable to the depressurization which the Claimant was
subjected to in the Defendant’s aircraft. It is the clear evidence of this
doctor upon whose evidence the Claimant relies in support of his case that
this injury was caused by the high pitch sound and blast which the
Claimant alleged that he heard on 27th November 2008.
[82] Additionally, this claim of a high screeching sound and blast did not form
part of the pleaded case of this Claimant. As such the Defendant would
not have had an opportunity when determining whether to admit liability
to assess this claim. It would be unfair to allow this Claimant to raise for
the first time at the hearing of the assessment these new bases of his claim
without the Defendant having had an opportunity to treat with them.
[83] In the circumstances I am of the view that this Claimant having
experienced depressurization would have had some discomfort in his ear
but certainly not the severe injury that he claimed. I note that the
Defendant admitted liability for some pain and discomfort experienced by
the Claimant upon the depressurization of the cabin. I consider that
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discomfort to have been minor and temporary and I therefore make an
award of damages on that basis.
[84] I also take into account this doctor’s evidence that the tests for hearing are
subjective; as a doctor he relies upon the responses of the patient which
form the basis of his assessment22. I am also of the view that this Claimant
was not honest when he was administered the audiogram neither was he
honest in his account to Dr. Aziz of the incident giving rise to his claim.
[85] I therefore award this Claimant:
i. General damages in the sum of $35,000.00, interest at the rate of 6%
from 6th February 2009 to 13th January 2016
ii. Special damages in the sum of $2,437.00
iii. Loss of earnings in the sum of $300.00 a day for fourteen days in the
sum of $4,200.00, interest at the rate of 3% from 17th November 2008
