LEGAL OPINION

TO: Phyllis Richards S.C.

FROM: Melanie Simon, Junior Associate
SUBJECT: Advice on Proposed Settlement
DATE: 4th January 2024

FACTS
Mr. Lloyd Davis (hereinafter referred to as the client) now forty (40) years old, worked as a
motorcycle delivery driver for Coalpot Foods, a chain food restaurant in the Co-operative
Republic of Guyana. While he was riding his motorcycle on February 23, 2023 he was
involved in a Road Traffic Accident. The accident was caused by an employee of Total
Furnishers Ltd (TFL) who was driving one of their furniture delivery vans at the time of the
accident.

An initial assessment of the client’s injuries was conducted by a doctor at the St. Lewis
hospital who indicated that there was nothing wrong apart from severe bruising to the client’s
right arm, right leg and to the right side of his face. The client however complained from the
outset of pains in both of his legs and right shoulder. He was forced to go on sick leave for
three (3) weeks at the end of which, he was still complaining of pains in the knee and ankle
joints in both of his legs.

He visited his general physician on March 16, 2023 and was referred to a consultant whom he
met with twice on March 20, 2023 and April 4, 2023 respectively. On his second visit on
April 4, 2023, he was advised by the consultant following a test conducted on him, that he
potentially had serious injuries to both knees and ankle joints and both of his legs were
thereafter placed in plaster cast for three (3) months. The casts were removed in July 2023
and the client was diagnosed with Degenerated Muscle Tissue in his joints and was told to
perform specific exercises to potentially remedy this and if not, he would have to undergo
surgery to pin the joints in a fixed position. The exercises proved unfruitful, and the client
had to therefore undergo the recommended surgery in August, 2023.
The pain thereafter, as the client instructs, eased significantly but he was now unable to bend
his right knee or move his right ankle which rendered him permanently unable to ride a
motorcycle. This led to the client selling his motorcycle for a cost of $17,000.00 although it
had been worth $25,000.00 before the accident, as he could neither repair it nor was unable to
ride it.
He is concerned about the unsecured nature of his current work and worries that in hard times
he would be unable to get the same income and would also find difficulty in obtaining
alternative employment should the need arise.

TFL has since admitted liability and offers a proposed settlement of $450,000.00 consisting
of $200,000.00 for general damages and $250,000.00 for special damages. The client seeks
advice on whether or not he should accept the proposed settlement.

LAW AND ANALYSIS

Introductory
1. The purpose of an award of damages is to place a person who has suffered some
harm, loss or damage as a result of the action(s) or omission(s) of the tortfeasor, back
into a position, so far as money is able to do, that he/she would have been in had the
tort not occurred: Livingstone v Rawyards Coal Co. (1880) 5 App Cas 25
2. Damages can be classified as being either General or Special Damages: Heeralall v
Hack Bros (Construction) Co Ltd (1977) 25 WIR 117 (Court of Appeal, Guyana)
at pg. 124
General Damages
3. General Damages are those harm, losses, or injuries which are presumed by law to
flow naturally from the wrong committed upon a claimant and is therefore not
required to be pleaded (Prehn v Bank of Liverpool (1890) LR 5). These damages
therefore would be awarded to Mr. Davis simply by virtue of being injured and since
TFL has admitted liability what has to be considered is whether the proposed amount
is sufficient enough to be accepted by the client.
4. Because of the very nature of these categories, the quantum of damages is incapable
of precise mathematical calculation and the court has to take into consideration a wide
array of factors in arriving at a value to ameliorate the loss of the claimant (Heeralall
supra at p. 124) including looking at awards made for similar losses or injuries in
previous cases.
Pain and Suffering
5. In Cornilliac v St Louis (1965) 7 WIR 491 at p. 492, Wooding CJ asserted that in the
assessment of General Damages the court should take into account:
(a) The nature and extent of the injuries sustained;
(b) The nature and gravity of the resulting physical disability;
(c) The pain and suffering which he had to be endure;
(d) The loss of amenities suffered; and
(e) The extent to which, consequentially, the plaintiff’s pecuniary prospect has
been materially affected.
6. In this instance, the client’s injuries have been severe and has resulted in him now
being unable to bend his right knee or move his right ankle. The extent, nature and
gravity of his injuries has therefore been severe and he is now permanently unable to
ride his motorcycle which he was doing prior to the accident as part of his
employment.
7. Further loss that has been suffered as a result of pain and suffering is viewed by the
courts as being subjective in that the quantum of damages that may be awarded
depends of the awareness of the pain and suffering: H. West and Sons Ltd. V
Shepherd [1963] 2 All ER 625.
8. The client here, would have began suffering pain in both of his legs and right shoulder
from the time the accident occurred. At no point thereafter did he lose consciousness
and so was always aware and enduring the pain which continued from the accident in
February,2023 up until his surgery in August, 2023.
9. As indicated prior, he is now permanently disabled being unable to bend his right
knee and ankle of which he continues to be aware of and which likely causes him
great embarrassment.
Loss of Amenities
10. An additional consideration has to be made in relation to the loss of amenities. This is
where the claimant is no longer able to exercise certain abilities as a result of the
injury occasioned by the act or omission of the tortfeasor and includes but is not
limited to: the loss of ability to practice profession and loss of ability to engage in
recreational activities: Pickett v British Rail Engineering Ltd [1979] 1 All ER 774.
11. On the client’s instructions, Mr. Davis worked as a motorcycle delivery driver before
the accident. Due to the injuries received as a result of the accident, Mr. Davis has
 been rendered unable to utilize his motorcycle and practice his profession thereby
constituting a loss of amenities.
Loss of Earning Capacity
12. A claimant who has suffered personal injuries that can affect his current employment
or his competitiveness in being able to procure new employment in the open labour
market may receive a compensatory award for such damages: Smith v Manchester
City Council (1997) 118 Sol. Jo. 597.
13. In making an award under this head the Court must find that there is a real risk that
the claimant at some time before the end of his working life will lose his employment
and be forced into the labour market (Smith (supra)).
14. The court also considers a variety of factors such as the plaintiff’s age and the nature
of the disability (Smith (supra)).
15. Mr. Davis, although gainfully employed as a saxophonist and earning more than he
previously did, has expressed concern that such employment is not secured and
should things go bad in this industry he will find it difficult to obtain alternative
employment. Considering such, along with the client’s age and the fact that Mr. Davis
is permanently disabled in his right leg and no longer able to use a motor cycle for
employment as a delivery man, may constitutes a real and substantial risk of him
becoming unemployed during his working years and forced into the labour market.
Thus, an award under this head may be appropriately considered.
16. It must be noted that although Mr. Davis is employed currently as a musician and
earning more than he did before the accident, he is still entitled to compensation under
this head. As per Sir Owen Woodhouse in Lau Ho Wah v Yau Chi Biu [1985] 1
WIR 1203; the concept of earning capacity is not limited to the present or to be
measured by some immediate and possible fortuitous achievement. It is concerned
with a continuing state, with potential of an individual and so very much with the
future as well.
Loss of Future Earnings
17. This head of damage is compound by two elements: 1. The claimant can no longer
earn his pre-accident rate of earnings and 2. The weakening of the claimant’s
competitive position in the open labour market, i.e., if the claimant is to lose his
current employment, what are the chances of obtaining comparable employment
(Smith v Manchester City Council (1997) 118 Sol. Jo. 597).
 18. Since Mr. Davis has lost his job with Coalpot Foods and he no longer able to work as
a motorcycle delivery driver due to his inability to ride a motorcycle, he will be
entitled to damages under this head. In calculating damages under this head, the court
will utilize the multiplier/multiplicand approach (Taylor v O’ Connor [1970] 1 All ER
365).
19. The Multiplicand is the annual net loss to the claimant and begins with net earnings of
the claimant at the time of the trial. In Mr. Davis’s case this would be:
Employment as Motorcycle delivery:
$2000 per week X 4 = $8000 per month
$8000 per month X 12 months = $96000

Employment as Saxophonist:
$1200 per week X $ 4 = $4800 per month
$4800 per month X $1200 = $57,600

$96,000 + $57,600 = 153,600 MULTIPLCAND

20. The multiplier is the number of years the disability is expected to last. Mr. Davis
disability is expected to last for the remainder of his life. At the time of the accident,
he was 40 years old. This is a fairly young age and means that the disability will
remain for a significant number of working years. The Court will take this factor into
consideration and the multiplier may be reduced: Taylor (supra). The multiplier will
also be reduced because Mr. Davis will receive the money earlier than it was earned
and as a lump sum: Wells v Wells.
21. After the deductions are made to the multiplier, the Multiplicand is multiplied by the
Multiplier. The resulting figure is further subject to deductions for taxation, national
insurance, and expenses incurred in the performance of his job: Dews v National
Coal Board [1987] 2All ER
ADVICE
22. Based on the legal principles adumbrated above it is hereby submitted that the client
should be advised that the amount offered by TFL in respect of the quantum of
damages is insufficient to restore Mr. Davis into a position he would have been had
the accident not occurred. Mr. Davis is therefore advised not to accept such award and
instead negotiate a higher settlement and if that is not fruitful, approach the Court.