Factors to note when bringing a claim for Personal Injuries

In life accidents do happen, sometimes this may be as a result of the negligence, recklessness or intentional wrongdoing of someone else. Consequently, individuals may sustain personal injuries for which they may seek redress at the High Court. Some persons may also suffer personal injuries which resulted from-

• a nuisance such as the constant emission of toxic fumes or chemicals into the environment by the intended defendant;
• a breach of duty by the intended defendant- be it a contractual duty, statutory duty or one under the law of tort (a wrongful act); or
• assault and battery.

 

What does personal injuries include?

Section 2 of the Limitation of Certain Actions Act Chapter 7:09 (hereinafter “the Limitation Act”) defines “personal injuries” to include

“any disease and any impairment of a person’s physical or mental condition…”

 

In The Attorney General of Trinidad and Tobago; Police Constable Khadoo #16878 v Muhammed Hosein Civil Appeal No. P173 of 2020 the Court of Appeal clarified that the type of “personal injuries” contemplated by the Limitations Act must be “physical injury and severe conditions of mental disease… mental damage, defect or disorder or recognizable type of medical illness” for which there must be some medical evidence or diagnosis to support same. The Court further noted that it does not include “injuries to feelings or anxiety”.

 

Time limit for bringing a claim:

Section 5 of the Limitation Act stipulates that the time limit for commencing an action for damages (monetary compensation) for personal injuries based on negligence, nuisance or breach of duty is within four years from-

(a) the date on which the cause of action (‘legal basis for a claim’) arose; or

(b) the date on which the person injured first acquired knowledge of the

existence of the cause of action.

 

Where the person injured dies before the expiry of the said four-year period, for the benefit of the estate of the deceased, Subsection 5 (3) permits the cause of action to survive and the time limit shall be four years from-

“(a) the date of death; or

      (b) the date on which the personal representative first acquired knowledge of    

           the accrual of the cause of action whichever is the later.”

 

Where the person injured is under a disability as defined in Section 2 (3) of the Limitation Act, for instance, an infant (under 18 years of age), is suffering from a mental disorder, etc, Section 11 of the Limitation Act permits such persons to bring their claim “before the expiry of four years from the date when the person ceased to be under a disability or died, whichever first occurred, notwithstanding that the period of limitation has expired.”

 

Where the time limit has expired, Section 9 of the Limitation Act empowers the Court to override the limitation period in certain cases where, after having regard to all the circumstances of the case, the Court perceives that it would be unjust and would prejudice either the plaintiff or the defendant to uphold the limitation period.

 

Required Evidence:

When bringing a claim for personal injuries it is very important that you obtain and produce to the Court all your relevant documents which may include:

• medical reports, tests, scans.
• medical reports from a qualified medical doctor who has expertise on the type of injury suffered and who is willing to testify in your court proceedings. If you will no longer be able to work, the medical report should state this along with the percentage and nature of your disability.
• Bills, receipts, financial records for medical treatment received, medication and/or medical equipment purchased, and transportation costs to and from the relevant medical facility/facilities.
• Pay slips, job letter and any other documentary evidence to support loss of earnings, if any.

 

Damages Awarded:

Special Damages

This type of damages refers to the quantifiable sum of money you actually spent on expenses arising as a direct result of the injury such as medical expenses, transportation costs to and from medical appointments and loss of earnings. It is necessary that you specifically state and outline these expenses in your claim and provide documentary proof of same in order to successfully claim this type of damages.

 

General Damages:

General damages are awarded for non-economic losses that arise as a result of the injury. In Cornilliac v St. Louis (1965) 7 W.I.R. 491 the Court established the factors that it must consider when assessing general damages as follows:

 

(a) the nature and extent of the injuries sustained;

(b) the nature and gravity of the resulting physical disability;

(c) the pain and suffering endured;

(d) the loss of amenities suffered; and

(e) the effect on the Claimant’s pecuniary prospects (potential for future earnings).

 

To commence your claim, you must obtain the name and address of the intended defendant(s) to serve them with your claim. In claims arising from motor vehicular accidents, you may sue the driver and/or the owner of the motor vehicle and the relevant insurance company, if necessary.

 

Submitted by: Norisa Tyson

Legal Officer

Civil Legal Department

Legal Aid and Advisory Authority,

23 Stanmore Avenue, Port of Spain.

Contact: 638-5222

Email: [email protected]

Website: www.laaa.org.tt

This article is not legal advice. Consult an Attorney-at-law for legal issues.