How is compensation for personal injury assessed in Trinidad and Tobago?

Special damages: losses already incurred

Special damages are the money losses the injured person has already suffered by the date of trial. Common examples are medical, hospital and treatment costs, travel to and from treatment, damaged property, and earnings lost up to trial. These losses can usually be calculated precisely. They must be claimed specifically and proved by evidence, such as receipts, bills, pay slips and records of earnings.

General damages: the injury, pain and suffering, and loss of amenity

General damages compensate for losses that cannot be calculated exactly. In Trinidad and Tobago, the courts assess them by considering the five factors accepted by the Court of Appeal in Cornilliac v St Louis:

1. the nature and extent of the injuries sustained;
2. the nature and gravity of the resulting physical disability;
3. the pain and suffering which had to be endured;
4. the loss of amenities suffered; and
5. the extent to which, as a result, the injured person’s pecuniary prospects have been materially affected.

“Loss of amenities” means loss of the enjoyment of life: for example, no longer being able to work in the same way, play sport or music, or carry on a normal social life. Pain and suffering covers both past and future pain, physical and mental. The court converts these losses into money by considering awards made in comparable cases.

Future loss of earnings and future expenses

Where the injury will reduce what the injured person can earn in future, the court awards a lump sum for that loss. In general, it estimates the yearly loss of net earnings and multiplies it by a figure that reflects the likely period of loss, reduced to take account of the person receiving the money early and of the ordinary uncertainties of life. Future costs caused by the injury, such as continuing medical treatment, care or equipment, may also be awarded where the evidence shows they are likely to be needed.

Interest

In a claim for damages, the court may include interest, at the rate it thinks fit, on all or part of the damages for all or part of the period between the date the cause of action arose and the date of judgment (Supreme Court of Judicature Act (Chapter 4:01), s 25). The court may not award interest on interest (s 25(a)). Different rules can apply under some other Acts. For example, in proceedings under the Motor Vehicles Insurance (Third-Party Risks) Act (Chapter 48:51), where the court considers interest payable, it is at the mean of lending and borrowing rates then prevailing, or a higher rate the court fixes (s 10A(8)); see the page on road accident claims.

After judgment, the judgment debt carries interest at 5% a year from the time judgment is entered until it is paid (Supreme Court of Judicature Act, s 25A(1), as varied by Legal Notice 168/2016). Judgments against the State carry interest at the same rate (State Liability and Proceedings Act (Chapter 8:02), s 26(1); Remedies of Creditors Act (Chapter 8:09), s 13(1), as amended by Act 8 of 2016).

Reductions: shared fault and failure to mitigate

If the injured person’s own fault contributed to the damage, the court reduces the damages “to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage” (s 28(1)). The court first records the total damages that would have been recoverable without that fault (s 28(2)).

An injured person must also act reasonably to keep their losses down, for example by taking reasonable medical treatment or suitable work where they are able to. This is known as the duty to mitigate. Losses that could reasonably have been avoided are not recoverable.