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THE REPUBLIC OF TRINIDAD AND TOBAGO

In the High Court of Justice

Claim No. CV2012-04844

BETWEEN

SAVITRI MOONSAMMY-MOTILAL

Claimant

AND

GREGORY LAING

1st Defendant

KRYSTLE LAING

2nd Defendant

SAGICOR GENERAL INSURANCE INC.

3rd Defendant

By Ancillary Claim

BETWEEN

GREGORY LAING

KRYSTLE LAING

Defendants/Ancillary Claimants

AND

TAIB RAGOO

ANDREA RAGOO-BORNEO

Ancillary Defendants

THE PRESIDENTIAL INSURANCE CO. LTD

Ancillary Co-Defendant

Appearances:

Claimant: Lennox D. Sanguinette instructed by Yaseen Ali

Defendants/Ancillary Claimants: Faarees F. Hosein instructed by C. M. Sinanan

Ancillary Defendants: Ken Sagar instructed by Natasha Baiju-Patrick

Before The Honorable Mr. Justice Devindra Rampersad

Dated the 24th day of April 2017

JUDGMENT

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Contents

Introduction ............................................................................................................................. 3

Facts .......................................................................................................................................... 4

Issues ........................................................................................................................................ 4

The Claimant’s Case ............................................................................................................... 5

The claimant’s evidence .................................................................................................. 7

Comment ....................................................................................................................... 11

The Defendants’ case ........................................................................................................... 12

Krystle Laing................................................................................................................... 12

Tricia Maingot ................................................................................................................ 13

Lisa Rollocks ................................................................................................................... 14

The case for the Ancillary Defendants............................................................................... 14

Andrea Borneo Ragoo ................................................................................................... 14

Conclusion on Liability ........................................................................................................ 15

The Expert Evidence ............................................................................................................ 16

Dr. Henry Bedaysie’s Witness Statement and Report dated 8 June 2012 .............. 17

Dr. Devindra Ramnarine ............................................................................................... 22

Dr. Bedaysie’s Second Report filed 12 February 2015 .............................................. 23

Matters discovered by the court after the close of the case .................................... 27

Comment ......................................................................................................................... 29

Dr. Reddy’s report ......................................................................................................... 31

Discussion and conclusion .................................................................................................. 32

The Order ............................................................................................................................... 33

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Introduction

1. The court has before it a claim for damages for personal injuries and consequential

losses allegedly suffered by the claimant as a result of a collision which occurred

on 22 October 2011. It was the claimant’s case that the collision occurred as a result

of the negligent driving of the second defendant who collided into the rear of a

vehicle in which the claimant was a passenger.

2. It was not disputed that the collision was one whereby the second defendant’s

number plate made minimal contact with the left rear bumper of the vehicle in

which the claimant was an occupant. It was also not disputed that the only damage

to that vehicle was the transference of paint from the second defendant’s license

plate. For this reason there was much skepticism that the accident as described

caused what the claimant described as ‘severe personal injuries’. Put another way,

the nature of the accident made it very necessary for the claimant to not only

establish that the defendants were negligent but also to show a causal link between

the accident and the severity of the injuries pleaded and claimed. That much was

made clear by the defendant who put the claimant to strict proof of same and by

the court when the issue was raised at the case management conference (CMC).

The claimant failed in that regard.

3. The court found that it was not probable that the accident caused the injuries of

which the claimant complained. The court found that the claimant was not a

credible witness. There were inconsistencies in her evidence when compared to

her pleaded case and her evidence and what she would have represented to Dr.

Bedaysie. The claimant also failed to plead pertinent facts and then sought to rely

on the same at the trial. The court was left only with the conclusion that she was

untruthful.

4. The evidence which was presented by the claimant, and that which came out

during cross-examination, was at odds with the picture the claimant attempted to

paint. The claimant attempted to paint a picture of a once young active woman

made to live life as an old person as a result of the accident and who could only

cope with the aid of medication. However, despite this representation the claimant

failed to produce any evidence whatsoever of having taken pain medication by

perhaps producing receipts or prescriptions. There was also no evidence pleaded

of the claimant having sought medical attention in relation to the injuries

complained of until 10 May 2012, almost 7 months after the accident, and definitely

no follow up since then to date – a period of a further 4 years or so after that

intervention.

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5. The claimant relied on the witness statement and medical reports of Dr. Bedaysie

in an attempt to show a nexus between the accident and her injuries. However, the

court did not attach much weight to Dr. Bedaysie’s evidence for reasons which

would be highlighted below. Further, when his evidence is juxtaposed against that

of Dr. Ramnarine and the unreliability of the claimant, whose representations Dr.

Bedaysie relied on to produce his reports, the court was of the opinion that the

claim could not be sustained.

Facts

6. The claimant was the front passenger of motor vehicle no. PBX 3034 which was, at

the material time, owned by the first ancillary defendant, driven by the second

ancillary defendant and insured by the ancillary co-defendant.

7. The second defendant was the driver of vehicle no. PCE 7977 which was owned

by the first defendant and insured by the third defendant.

8. Vehicle no. PCE 7977 was being driven along Richmond Street, Port of Spain, in a

southerly direction behind PBX 3034. The evidence of the ancillary defendant was

that she applied her brakes to maneuver a depression whereas the second

defendant pleaded that vehicle no. PBX 3034 came to an abrupt stop causing her

to collide with the car.

9. The collision was a minor collision. The damage to PBX 3034 was confined to the

transference of paint/scratches to the left rear bumper.

10. At the time of the accident the second defendant’s vehicle had two other

occupants. There was no evidence that any other person other than the claimant

complained of injuries arising out of the accident and, other than a counterclaim

for $3,400.00 which included alleged damage to the ancillary defendants’ vehicle

in the sum of $1,800.00, there was no other claim for property damage. The

counterclaim was abandoned at the trial so, effectively, no significant damage to

any vehicle was claimed or established.

Issues

11. It is common knowledge that to successfully found a claim for negligence the

claimant has the onus of proving, on a balance of probability, that there was a duty

of care, a breach of that duty by the defendant and damages causally connected

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with such breach.1 According to Clerk and Lindsell on Torts 17th Edn at paragraph 2-

03, page 40:

“The plaintiff must adduce evidence that it is more likely than not that the wrongful conduct of the defendant in fact resulted in the damage of which he complains. He must establish a link, a prima facie connection between the wrongdoing and the relevant damage.”

12. Therefore, the burden is on the claimant to establish:

12.1. That the second defendant was negligent; and

12.2. As a result of that negligence, she suffered injury and damage.

13. This case turned on the claimant’s inability to prove a causal link between the

injuries pleaded and the accident and as such the court will address the issues in

the following order:

13.1. What is the extent of the claimant’s injuries and whether she was able to

prove on a balance of probabilities that they were the result of the collision;

13.2. If the claimant was able to prove the relevant nexus between the accident

and her injuries, who is liable to compensate the claimant; and

13.3. What is the quantum to which the claimant would be entitled?

The Claimant’s Case

14. The injuries pleaded by the claimant in her statement of case were reflected in an

extract from Dr. Henry Bedaysie’s report dated 8 June 2012 in which the doctor

noted that:

14.1. M.R.I report and scan of the Lumbar Spine done on the 10th May, 2012

reported:

14.1.1. variable disc desiccation at all levels with posterior annular

tear in L4-5 intervertebral disc.

14.1.2. mild diffuse disc bulge of the L4-5 with posterior central small

disc protrusion causing mild narrowing of spinal canal and

bilateral neural foramina annular disc bulge indenting the

epidural fat in the anterior spinal canal and neural foramina.

14.1.3. M.R.I. scan revealed disc bulge of the L5-Sl level.

1 See Charlesworth and Percy on Negligence 11th Edn pg. 17 at para 1-33; Francis v Wells [2007] EWCA Civ 1350

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14.2. M.R.I. report and scan of the Cervical Spine done on the 10th May, 2012

reported:

14.2.1. minimal disc bulge of the C4-5 level with no significant

narrowing of the spinal canal.

14.2.2. mild disc bulge of the C5-6 level causing mild narrowing of the

spinal canal.

15. Further, examination by Dr. Bedaysie FRCS revealed:

15.1. decreased right supinator reflex.

15.2. weakness of the right thumb.

15.3. severe low back pain radiating to the legs.

15.4. back tenderness.

15.5. diminished sensation of the right S1.

15.6. weakness of plantar flexion and left dorsiflexion.

15.7. absent right and left ankle jerk reflexion.

15.8. lumbar spasm.

16. Examination of the lumbar spine revealed decreased range of movements with

spasm, diminished left ankle reflex and diminished sensation of the S1

dermatome.

17. It is important to note that the earliest medical diagnosis reflected in the claimant’s

pleaded case was made on 10 May 2012. Further, there was no pleading of the

claimant having experienced pain shortly after the accident or of her having

sought medical attention until May 2012. The court raised this concern at an early

stage with counsel for the claimant who indicated that the claimant was taken to

the hospital for treatment on the night of the accident. However, apart from the

fact that that was not pleaded, no hospital records were produced to support that

contention and no amendment of the statement of case requested to reflect same.

18. The claimant attempted to produce into evidence a witness summary of a Dr. Ravi

Reddy who allegedly saw the claimant on 27 October 2011. However, the court

gave its ruling on evidential objections on 29 February 2016 and struck out that

summary together with Dr. Reddy’s report which was also annexed to the

claimant’s witness statement. That decision was not appealed and so the court

considers that report to be inadmissible. However, Dr. Reddy’s report was

allegedly relied on by Dr. Bedaysie in his supplemental report dated 11 February

2015 in relation to which there was no objection. That report then will be

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considered in the limited context of its relevance to Dr. Bedaysie who referenced

it in his later report and not for the fact of the matters stated therein.

19. In relation to the claimant’s injuries, the court was thus left with the evidence of

the claimant, her expert, Dr. Henry Bedaysie and the defendants’ expert, Dr.

Devindra Ramnarine. It is noted that the claimant’s case was that the collision

caused the injuries complained of and there has been no contention that she had a

pre-existing condition which was agitated by the collision.

The claimant’s evidence

20. The claimant’s evidence in relation to the accident and her injuries would be

considered together as they both have a bearing on her credibility and,

consequently, the findings which this court has to make.

21. This accident occurred at the time of the state of emergency imposed by the

Trinidad and Tobago Government of the time which had set an 11 PM curfew.

This accident, according to the parties on both sides, occurred sometime after 10

PM.

22. Both the claimant and the ancillary defendant sought to suggest belatedly that

there was a depression in the road which caused the ancillary defendant, who was

the driver of the vehicle in which the claimant was a passenger, to slow down

unexpectedly. There was no mention of any pothole or depression in the statement

of case so, quite rightly, attorney at law for the defendants raised that objection.

23. Neither the claimant not the driver of the vehicle she was in observed how far the

defendants’ vehicle was so the defendants’ evidence in that regard is

uncontroverted. In particular, and further, they were not in a position to describe

anything about the speed that the defendants’ vehicle was being driven.

24. The claimant seeks the court to make the inference that the D was driving too fast

in the circumstances since there was no direct evidence of speed.

25. In describing the accident in her witness statement the claimant indicated that she

heard a bang and the car she was in pushed forward. However, in recounting the

accident under cross examination the claimant indicated that she could not recall

if she heard a bang but she heard a ‘crackling sound’ and felt her body move

forward and back and that she and her friend tried to figure out what had

happened. This leads the court to believe, consistent with the unshaken evidence

of the defendants, that the nature of the accident was of such a low velocity that it

was not immediately apparent that there was a collision. The claimant omitted

this fact from her pleadings and attempted to paint a different picture when she

included in her witness statement that she heard a ‘bang’.

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26. Neither the claimant not the driver of the vehicle she was in observed how far the

defendant’s vehicle was so the defendant’s evidence is uncontroverted. In

particular and further, they were not in a position to describe anything about the

speed that the defendant’s vehicle was being driven.

27. The claimant went on in her witness statement to state that the car was pushed

forward and she was suddenly pushed forward against the seatbelt and slammed

back into her seat. She explained that she was 7 months pregnant at the time and

that she immediately began to feel mild pain in her neck, chest and back.

According to the claimant that pain became worse whilst they were at the police

station. These facts were not pleaded. The claimant pleaded nothing about being

pregnant or of having experienced pain at the site of the accident or shortly

thereafter at the police station. Similarly, when asked by counsel for the

defendants to recount the accident on more than one occasion, on none of those

occasions did she mention that she was in any pain immediately thereafter or at

any point. The evidence of the second ancillary defendant was that the claimant

complained of feeling unwell whereas the second defendant maintained that the

claimant did not indicate that she was in any pain at the scene.

28. The claimant stated that she continued to experience pain to her back, usually

when she was on her feet for more than 15 minutes, and it became worse after she

had the baby. According to her, she had pain on a daily basis leading her to visit a

Dr. Santana who requested that she have the M.R.I. scans done. The claimant

further stated that she could not see Dr. Santana after she had the scans done,

although she did not indicate why, but was able to see Dr. Bedaysie. She stated

that she informed Dr. Bedaysie of the problems she was having and he prescribed

medication, Arcoxia 120mg and Losec 20 mg, once per day and recommended that

she have physiotherapy.

29. According to Dr. Bedaysie’s report dated 8 June 2012 the claimant represented that

she had not resumed work since the accident due to the pain and discomfort she

was experiencing. However, at paragraph 12 of her witness statement the claimant

indicated that she returned to work approximately 4 months after her child was

born. In cross examination she admitted that her child was born on 16 December

2011. The claimant would have thus returned to work in or around the middle of

April, before she went to Dr. Bedaysie on 1 June 2012. Further, the claimant was

shown on Facebook posing in her salon after the accident and before her baby was

born in posts dated 25 November 2011. Despite having returned to work the

claimant pleaded special damages at $500.00 per day from the date of the accident

to 30 July 2012 and continuing at 3,000 per week until assessment. There was no

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account of the fact that she would have returned to work or the fact that she would

probably have taken maternity leave as a result of her pregnancy.

30. At paragraph 10 and 11 of her witness statement the claimant went on to give her

account of how the accident would have affected her:

“10. Since the accident I have felt like an old person. I can't stand or walk for more than 15 minutes at any one time. I have to take rests in between. I am reminded when I was younger and spending time with my grandparents they would have to "take a rest" for a few minutes in between when standing or walking for more than 15 minutes at any one time. When my child was younger I could have lifted them up, but as they got older and put on weight I cannot lift them up. I feel sad and I am frustrated that I cannot lift up my child or run around and play games with them. As they have gotten older and started walking and running I constantly have to run after them this aggravates my back pain. After the accident a simple task like turning to scrub my back, buckling my bra and bending to put on my shoes causes me terrible pain. In fact my husband has to bathe my little daughter as bending to do so causes me terrible pain.

11. Prior to the accident I used to go out occasionally with family and friends to lime. Since the accident, however I rarely go out by. When I do, I feel left out, as I would often be the only one sitting whilst everyone else was dancing. I also liked to tend my plant and tend to my garden. However, since the accident I cannot enjoy spending lime in the garden. Since moving to Canada, I have not been able to tend to garden we have here because I am afraid that my back would be further damaged. Simple tasks like, like vacuuming, dusting, scrubbing the bathroom and cleaning cause me pain. Whilst in Trinidad I may have had some help from family members, everyone here is busy working and I often have to do these things by myself. This causes my back to hurt but I have just gotten used to bearing the pain as I have to. I wish I can hire a domestic helper but I cant afford to pay a domestic helper who I would have to pay at least he minimum wage in Canada of Can $10.25 per hour at least 4 hours per day 5 days per week.” (sic)

31. Despite all the complaints of debilitating pain since the accident the only medical

evidence the claimant sought to rely on in her statement of case was that of Dr.

Bedaysie who she saw on one single occasion and who admitted that she was

referred to him for the purpose of a neurological assessment for litigation. Her

alleged visit to Dr. Reddy was not pleaded nor was he allegedly available to give

a statement in the matter or for the dates set for trial. She was allegedly seen by

Dr. Santana whose name appears of the M.R.I. scans yet he was not called as a

witness nor was any medical report from him produced in evidence.

32. The claimant gave no evidence of having taken medication before her visit to Dr.

Bedasyie. Further, even when Dr. Bedasyie recommended Arcoxia there is no

evidence that she purchased same. It is the claimant’s evidence that her father

purchased them for her but got no receipts. In addition, she casually mentioned

that she spent about $2,500 in medicines rubs, ointments and sprays over the past

2½ years but did not keep receipts as they were often bought by other family

members. It is startling to note that even though the claimant was referred to Dr.

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Bedaysie for the purpose of litigation, and noting that the litigation was been

considered, she did not keep or produce any receipts. As mentioned by attorney

for the defendants, she called no doctor, no care giver, no relative or any person to

corroborate her condition or circumstances or to even corroborate the purchase of

medication. Dr. Bedaysie indicated in his report that there would be a need for

restrictions, accommodations and medical assistive devices to help her carry out

her usual but now restricted activities but there is no other evidence of her having

needed or sourced any medical assistive device.

33. Post Dr. Bedaysie’s visit, the claimant’s evidence is that she took the medication

prescribed but could not afford the physiotherapy recommended. The claimant

allegedly resided in British Columbia, Canada according to her witness statement

and further stated that she is unable to afford the physiotherapy services there but

gave no evidence of having sought medical attention there. However, during cross

examination the claimant stated, for the first time, that she was a Canadian citizen

and as a citizen she would be entitled to free medical treatment as a result of the

Ontario Health Insurance Plan (OHIP). She further agreed that she was entitled to

basic medical care with no restriction in relation to income or preexisting

conditions yet this was not mentioned in her witness statement. It was also only

during cross examination that the claimant alluded to having received a free

consultation with a chiropractor in Vancouver who she described as the doctor she

was talking about when she said in her evidence that she ‘intend to take the

recommendation and follow all the advice of my doctors’. There is no evidence that she

ever attempted to access the free medical services now available to her even after

the court raised the availability of OHIP at the trial. The fact is, one would have

expected that if a person has access to free medical services, she would seek to

access it to alleviate any continued discomfort or pain arising out of this serious

injury that she alleged but there was not one iota of evidence in that regard.

34. There is thus a failure of the claimant to show any need for medical care and

attention as a result of the accident save for Dr. Bedaysie’s testimony and reports.n

addition to the inconsistencies in the claimant’s case and evidence, the defendants

were able to unearth evidence which contradicted her claims of feeling like an old

person in the form of Facebook posts which in one instance portrayed her

dancing/”wining”, moving, bending and crouching in a costume as a part of a

Carnival Sensations Band in the 2013 Pride Parade held in Vancouver. The

claimant accepted that the parade took place in August 2013, mere months before

she filed her witness statement on 07 February 2014.

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Comment

35. It is incredible that a claimant postulating such intense pain and suffering from the

date of the accident provided not one shred of evidence of any follow-up medical

interventions or maintenance or referrals whether by way of prescriptions, doctor

visits, medication, medical assistance or any contemporaneous documents

whatsoever. Further, her suggestion that she was unable to do so because of

financial constraints is rejected as she failed to produce any such evidence to

support this contention.

36. She produced no workers or relatives to corroborate her condition.

37. From the court’s own experience, the OHIP program in Ontario is not as limited

as she sought to put forward to this court2 so that, at the very least, some sort of

minimal follow-up documentation could have been presented had she been

serious about the effects of the accident as she alleged. When that is compounded

with her failure to mention anything about an alleged pregnancy in her pleadings

and the pictures that she posted on Facebook about her business and her

participation, very actively, in Carnival like celebrations for over 4 hours, the court

had serious reasons to doubt her evidence. On top of that, the claimant sat in court

for the entirety of the evidence of Dr. Bedaysie, which was just a little over 2 hours,

and gave her own evidence in the witness box for over an hour and a half after a

brief lunch break without flinching or displaying any obvious signs of discomfort

or any evidence of being uneasy for having sat for so long.

38. Her reason for wanting to have Dr. Bedaysie do her surgery is also incredible. She

has met him once in her life – for the purpose of the report which he prepared for

her but, according to him, that report was done without any reference from any

general practitioner but rather upon the request made of him by his “colleague”

Dave Maharaj3 and not through the claimant’s own request. She lives in Canada

and her entire nuclear family lives in Canada. Why would someone in those

circumstances choose to come to Trinidad to have surgery done by an unknown

doctor when she has a wide range of specialists at her disposal in Canada with all

of her recovery options, physiotherapy, maintenance of the surgery and any

possible complications, follow-up visits, etc. available to her in Canada (and

2 Of which the court is entitled to take judicial notice – see Ontario’s Health Insurance Act website available online 3 The person "Dave Maharaj" was referred to by the said doctor and by the claimant but he never gave evidence in this matter. The court noted his presence in court and the court is aware from a previous matter which the court dealt with involving this gentleman that his name is Davindra Maharaj and is not an attorney at law or a medical doctor, as far as the court knows. Definitely, he did not sit at the bar table while the matter was proceeding which suggests that he was not an attorney at law. In fact, as far as the court is aware, Mr. Maharaj is an insurance "consultant" whom Dr. Bedaysie described as his colleague.

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especially in light of the OHIP available to her in Ontario)? It was unimaginable,

as she alleged, that her medication was bought by her father in Trinidad and sent

up to her in Canada. This allegation is totally unbelievable especially since her

father never attended to give evidence nor did anyone else on her behalf attend to

give evidence in circumstances where she and or her counsel would have known

that the matter was the subject of litigation and documentary evidence by way of

bills or receipts for the purchase of these medication would have been required for

the court.

39. It absolutely makes no sense and it leaves the court with the distinct impression,

together with all that has gone before, that the claimant is being dishonest.

The Defendants’ case

Krystle Laing

40. With respect to liability, the second defendant was the main witness on behalf of

the defendants. She was the driver of the vehicle that night.

41. According to her, she was traveling along Richmond Street that night and was not

driving fast when she observed a red vehicle in front of her driving at the same

rate of speed as she was going. All of a sudden, this red vehicle came to a dead

stop without giving any indication. She said she tried to avoid coming into contact

with the vehicle by applying her brakes but her number plate still touched the left

of the bumper of the red vehicle. She said the contact was so slight that she did not

feel anything and that she did not even know she had touched the other vehicle

until she saw the driver of the other vehicle come out. Her evidence was that she

observed that some of the white from her license plate had rubbed off onto the left

side of the bumper of the vehicle in front and there was no damage otherwise to

her vehicle. Photographs of the vehicles were taken by her that night and exhibited

and they corroborated her allegation with respect to the minimal extent of the

damage.

42. It is uncontroverted that the parties attended the Central Police Station after the

accident and, according to this defendant, statements were taken by the police

during the two hours that they spent there. The police were not summoned as

witnesses in these civil proceedings to produce those statements or to give any

evidence as to what they observed that night. Needless to say, however, because

of the minor damage, it seems that no further proceedings were taken by the

police.

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43. It is difficult to understand why, on a road on which there were allegedly no other

cars, the 2nd named defendant was traveling as closely as she was. It was not as

though there was traffic causing cars to move so slowly that they would be forced

to lineup relatively close to each other. In cross-examination, the 2nd named

defendant was not at all helpful as to how fast she was traveling as she was clearly

unable to recall her speed but she did accept that if she had been travelling 3 cars

behind, she would have been able to stop without colliding. She said that her

speed was between 5 and 10 but did not know the unit of speed that she was

referring to – whether miles per hour or kilometers per hour. Generally, however,

she came across as a sincere and credible witness and seemed to genuinely not

know her speed. The court accepts when she said that the ancillary defendant

stopped suddenly.

Tricia Maingot

44. The second defendant produced her friend Tricia Maingot as a witness in these

proceedings on her behalf. Ms. Maingot was a passenger in the second defendant’s

vehicle on the night.

45. This witness gave the impression that she came to court to support her friend. On

a couple of occasions she tried to give “smart” answers. It is obvious to the court

that she was not really paying attention to what was happening ahead of her and,

in any event, she is not able to assist as to how long the ancillary defendant was

driving in front of them before the accident or even the speed at which they were

traveling. Her attempts to describe the speed as “medium” did not make any sense

and when counsel attempted to have her clarify that, she kept throwing back the

question to counsel saying, in essence, that it depended on the circumstances.

Clearly, she was there to discuss the circumstances of that night and was not

answering in a direct manner to the questions being asked of her. Further, when

she was asked if she had heard anything about there being a depression in the

road, she shifted uneasily in the witness box and looked downwards and then

answered uncomfortably that she did not. The court did not believe that response.

All in all, this witness did not seem to have a grasp as to what was going on and

did not come across as a forthright witness. Even though mention was made with

respect to alleged LASIK surgery which would have affected her nightvision as

she suggested, she was put forward as a witness by the defendants to describe

what happened on the day. This court does not accept her evidence as being

reliable.

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Lisa Rollocks

46. Ms. Rollocks was an administrative assistant employed with Insurance

Investigation Services Limited and she produced copies of the claimant’s

downloaded Facebook profile and photos for the period 2011 to 2013. Those

photographs, in particular, showed the claimant at her business establishment set

up after the accident in Canada and also showed her in various activities including

her participation in a carnival-like parade. The claimant’s earlier objection to that

Facebook information forming a part of the record was withdrawn.

47. The claimant’s Facebook post on 30 June 2012, more than 8 months after the

accident, stated:

“TO MY WONDERFUL CLIENTS AND FRIENDS I WILL BE MIGRATING TO CANADA ON THE 1ST AUG AND MY LAST WORKING WEEK WILL BE THE 3RD WEEK IN JULY. I WANT TO THANK EACH AND EVERYONE WHO HAVE BEEN THERE WITH ME EVERY STEP OF THE WAY ….”

48. Evidently, up until that time and continuing until the third week in July, the

claimant continued to work by her own admission in her post, a position she

confirmed in cross examination. By March 2013, the posts reveal that the claimant

had opened up a business in Canada doing the same thing as she was in Trinidad,

namely as a beautician/aesthetician.

49. The posts contain photographs which seemed to contradict the claimant’s

allegation in her witness statement that she now felt like an old person due to her

injury. In particular, the posts show her in pictures participating in the Pride

Parade in Vancouver in 2013 – a participation which was the subject of heavy cross

examination by the attorney at law for the defendants.

The case for the Ancillary Defendants

Andrea Borneo Ragoo

50. She is the second ancillary defendant and the driver of the vehicle which the

claimant was in. In cross examination, she admitted:

“I did not see the lights at all behind. I observed a depression and tried to manouvre the depression. It was an unevenness in the road. It was not deep or cut pothole. I slowed down to manouvre over the depression and I was about to manouvre and felt an impact and heard a sound.

…

The other party disputed whether there was a depression. The police did not go to see if there was in fact a depression.”

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51. This witness gave a creditable account of herself. She remembered the details and

gave her evidence in a very assured manner while remaining very calm and

collected in the box. She seemed to have intimate knowledge of the matters which

she was giving evidence about and was able to recollect details such as the

investigating officer’s name and the times which were involved in the process that

night without any hesitation. She seemed to answer truthfully when she was asked

about whether the 2nd named defendant had left prior to her signing her

statement and she genuinely seemed to not be aware as to whether or not the

claimant had been taken away prior to the 2nd named defendant leaving.

52. The fact that she did not seem to notice the 2nd named defendant’s vehicle behind

her, since she was unable to say when she first noticed the lights on that vehicle,

suggests that she was not paying sufficient attention to other users on the road and

maintaining a constant monitoring of her rearview mirror so that she would not

have been aware of the possible effects of her slowing down as she alleged. She

said that she slowed down to maneuver the depression and, even though she

denied that she did so suddenly, it seems more probable than not that she did as

she was not paying proper attention.

53. On top of that, it must be noted that this material fact of there being a depression

in the road was not pleaded and therefore the fact of it being introduced at this

late stage affected the credibility of the parties relying upon it and placed the

defendants at an unfair disadvantage.

Conclusion on Liability

54. It has to be, on a balance of probabilities, that the driver stopped suddenly – it was

up to her to show the reason why and she did not. Therefore, her stopping was

unexplained and unexpected and unreasonable in the circumstances. That seems

the more probable cause of the very minor collision as opposed to the 2nd named

defendant’s failure to pay attention to what was happening on the road ahead of

her. The very fact that the collision was not more calamitous lends credibility to

the 2nd named defendant’s account.

55. In the circumstances, the court accepts the version that the ancillary defendant was

not paying proper attention to other users of the road that night by failing to notice

the 2nd named defendant’s vehicle at all prior to the accident and she stopped

suddenly in the circumstances causing the accident.

56. It is obvious that the 2nd named defendant was driving at a rate of speed which

was sufficiently slowed to avoid any major collision with the ancillary defendant

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but it just may have been that she was a bit too close to have avoided any contact

whatsoever. As a result, the court is minded to hold her partially liable for driving

too close and would quantify that contribution as 20%.

57. For the reasons given above, the court does not impose sole liability upon the

ancillary defendant and holds her 80% liable for the accident.

58. The court notes at this stage that there was no claim made against the ancillary

defendants by the claimant.

59. The question which now arises is what, if anything, is the claimant entitled to?

The Expert Evidence

60. The claimant relied primarily on the expert evidence of Dr. Bedaysie who

provided a witness statement filed 31 January 2014. Annexed to Dr. Bedaysie’s

witness statement was his report dated 08 June 2012. Dr. Bedaysie later tendered

a supplemental report filed 12 February 2015 in response to the witness statement

and report of the defendant’s expert, Dr. Ramnarine, filed 01 December 2014.

61. In relation to medical evidence generally, the defendants’ attorney stressed that to

be useful an opinion must be more that a conclusory assertion on causation.4 It

was submitted that the court ought to be reluctant to accept conclusions without

carefully considering the reasons for such conclusions as the assumptions upon

which the expert gives their opinion might prove to be incorrect by the time the

judge has heard all the evidence of fact.5 For that reason, the court is entitled to

prefer the evidence of the expert whose view was more consistent with the

evidence before the court.6

62. Reference was made to the case of Routestone Ltd. v Minories Finance Ltd & Anor

[1997] B.C.C. 180 in which Jacob J stated at pages 188-189:

“I think this provision makes the opinion admissible. It by no means follows that the court must follow it. On its own (unless uncontested) it would be ‘a mere bit of empty rhetoric’ (Wigmore, Evidence (Chadbourn rev.), para. 1920). What really matters in most cases is the reasons given for the opinion. As a practical matter a well constructed expert's report containing opinion evidence sets out the opinion and the reasons for it. If the reasons stand up the opinion does, if not, not.” [emphasis added]

63. In Austin Bousigard v The Airports Authority of Trinidad and Tobago CV2010-

00132 Boodoosingh J observed at page 10 that “…merely because statements are made

4 See Parry v Vargas (2012) BCSC 1925 at paragraph 121 to paragraph 124 5 See Coopers Payen Ltd. v Southampton Container Terminal Ltd 17 [2003] EWCA Civ 1223 per Clarke LJ 6 See Telles v South West Strategic Health Authority [2008] EWHC 292

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by medical practitioners, without the basis for so finding, even where no contrary evidence

is advanced, does not mean that the court would or must necessarily accept it”.

64. It is for the court to determine how much weight it would ascribe to the expert’s

evidence and it ought not to accept that evidence without considering the evidence

before it.

Dr. Henry Bedaysie’s Witness Statement and Report dated 8 June 2012

65. By his witness statement Dr. Bedaysie indicated that he specialized in the area of

neurosurgery having been in medical practice since 1976 and practicing in this

specialty since 1983. There was no dispute about his stated qualifications or his

representation that he was a specialist in the prevention, diagnosis, treatment and

rehabilitation of disorders which affect any proportion of the nervous system of

the body such as the spinal cord and the peripheral nervous system (PNS).

Counsel for the defendant did however question whether Dr. Bedaysie was

qualified to give evidence on what had caused a particular diagnosis he had made

in relation to a patient.

66. Dr. Bedaysie indicated that he first met the claimant on 1 June 2012 when she

visited his office seeking medical treatment. This gave the impression that she

chose him on her own. Upon being cross examined it became evident that that was

a mischaracterization of the evidence as the claimant had in fact been referred to

him by one Dave Maharaj, who the court has ascertained is properly named

Davindra Maharaj and who was described by Mr. Sanguinette as Mr. Yaseen Ali’s

law clerk, for the purpose of neurological assessment with a view to litigation and

that she did not just arbitrarily visit his office nor was she recommended there by

any medical professional. Clearly, she was sent there by Mr. Maharaj.

67. Dr. Bedaysie went on to state that he was informed by the claimant that she was

involved in a motor vehicle accident on 21 October 2011 and he examined the

documents she presented in the form of two M.R.I. reports dated 10 May 2012 of

the cervical spine and the lumbar spine along with M.R.I scans. He indicated that

he ordered that she take new M.R.I.’s with no indication why he would have

ordered same. It is instructive that he mentioned nothing about receiving or

viewing or considering any other document than these. Therefore, having regard

to his position as an expert in these proceedings, the court notes that the

contemporaneous document of 8 June 2012 i.e. his medical report, mentions

nothing whatsoever about considering any report from one Dr. Reddy.

68. He went on to note that upon examining her she complained of:

68.1. pain radiating down to both the lower and to the sole of the feet

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68.2. restricted range of movements of the neck and back

68.3. neck pains going down to the arm

68.4. butt cheeks pain

68.5. difficulty in getting into and out of bed

68.6. unable to bend/squat or stoop properly

68.7. unable to walk fast or run

68.8. unable to lie down on ride side for more than 15 minutes without extreme

pain

68.9. unable to sit for more than 20 minutes without feeling irritable with back

pain

68.10. standing for more than 30 minutes brings on extreme back pain

68.11. unable to lift objects more than 15lbs without pain

68.12. walking for more than 15 minutes brings about swelling on the right ankle,

ties (sic) and pain in the left foot

68.13. discomfort during sexual intercourse

69. While the court does not doubt that this information may have been

communicated to the doctor, as already noted above, the claimant was shown to

have made a material omission to the doctor about her pregnancy and in light of

the court’s finding that the claimant was, more probably than not, not being honest

about the extent of the pain she was in, the court does not attach much weight to

these subjective complaints recorded by Dr. Bedaysie as represented by the

claimant. Dr. Bedaysie however went on to indicate the findings of his own

examination which revealed those injuries as reproduced in his report dated 8 June

2012 and outlined above. He also confirmed the injuries shown by the M.R.I. scans.

70. Dr. Bedaysie went on to explain that the injuries of the nature stated in the M.R.I.

reports occur where force is applied to the cervical and lumbar regions of the

human spine. More importantly, he went on to state that he has seen many motor

vehicle accident victims with similar injuries to the claimant. Dr. Bedaysie

however failed to indicate to the court what type of accidents those victims would

have been involved in to justify the comparison especially in circumstances where

the evidence suggested that he would not have been familiar with the particular

facts of the accident such as the damage which was caused, the type of vehicle

involved or whether or not the claimant was wearing her seatbelt. He went on to

note that he considered the fact that the claimant told him that the accident was a

relatively minor collision and that her injuries were consistent with being in the

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motor vehicle accident as described by her. However, Dr. Bedaysie’s knowledge

of the accident was challenged and he admitted that he did not know exactly how

the accident took place:

A: She was a passenger in a motor vehicle, she was pregnant, there was a head restraint, the car hit directly. I’m not quite sure how accident took place. The car hit jerk forward, pain in the neck and back

Q: Did she say where she was?

A: I assume front. I did not ask and she never told. Operating as if the passenger she was in the left passenger front seat.

71. Dr. Bedaysie indicated that the claimant told him she was rear-ended but that he

did not have any other information about the accident as according to him, it was

better for him not to know as that made him objective. The court thus finds it hard

to reconcile this evidence with the doctor’s comparison of the claimant with other

‘vehicle accident victims’ and his conclusion that ‘her injuries were consistent with

being in the motor vehicle accident as described by her’ when as he admitted, he

had no real description of the accident. His evidence was:

Court: Dr. Bedaysie I've gone through your witness statement but I've not seen where you described what Mrs. Moonsammy-Mootilal told you about the motor vehicular accident.

Dr. Bedaysie: Yes. It was very short. She just said she was rear-ended.

Court: That's it?

Dr. Bedaysie: That’s it ok.

……..

Mr. Hosein continues cross – examination:

Q: Dr. Bedaysie following from that answer to the question by his Lordship the question as to this Claimant describing consistent with her being in a motor vehicle accident as described by Mrs. Moonsammy-Mootilal all she told you simpliciter was she was rear ended and as we have already ascertained you did not know the size of the vehicle she was sitting in, you don't know what she was hit by from the back and all of these things, more importantly, the actual knowledge of the information with respect to the vehicles came after you went…

A: It’s more objective when you didn't know all of that.

Q: Sorry

A: The examination becomes more objective.

Q: Objectivity here comes out of you not ascertaining from the patient why it is she said what she did

A: That's right. Sometimes it better not to ask

72. Despite his lack of knowledge about the accident Dr. Bedaysie went on to state

that his conclusion, that the claimant’s injuries were consistent with being in the

motor vehicle accident as described by her, was consistent with international

medical opinion as reflected in an article by F. Morris in the Archives of Emergency

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Medicine entitled Do head restraints protect the neck from whiplash injuries? 1989, 6

pages 17-21. In relation to this article the court notes that:

72.1. The article is dated 23 years before the accident in question;

72.2. There is absolutely no information as to the author’s qualifications other

than his description in a footnote as a Senior Registrar in Accident and

Emergency Medicine, University College Hospital, Gower Street, London

WC1A6AU, England. The court does not know how long he was in this

position, what his speciality was, if anything, and how that speciality

related to the article at hand;

72.3. The doctor indicated that he cited the article for the conclusion in relation

to speed, that rear-end impacts of as little as 5 mph can give rise to

significant symptoms – see page 20. However, the article does not indicate

what those symptoms are likely to be. For completeness, it is appropriate

to refer to the exact words of the paragraph upon which the doctor relies:

“Rear-bumper impacts account for 20 – 30% of all types of car accidents (Langweider et al., 1982; McNab, 1977; States, 1979) and it has been stated (Dean’s, 1987) that these give rise to a disproportionately high incidence of neck injury compared with other mechanisms of impact. The reported percentage of rear-bumper injury in this country is in fact lower, but an analysis of car-accident reporting in this country shows how this discrepancy can be accounted for. The Transport and Road Research Laboratory, Crowethorne, collects data on the road-traffic accidents reported to them by the police, only routinely attend accidents where there has been obvious injury, their presence at other accidents depending upon manpower availability. Given that whiplash symptoms may not be present initially, and that rear-end impacts of as little as 5 mph can give rise to significant symptoms, the true figure is probably higher. For practical reasons, no attempt was made to ensure that head-restraints fitted to the cars in the study were:

(1) at an optimal height for the vehicle occupants (in one study, 75% of all adjustable head-restraints were found to be in the down position at the time of the impact) (Garrett & Morris, 1972);

(2) fitted so that there was less than 25 mm between the occupants’ occiput and the head-restraint;(3) were not faulty in design, or fitting, all points which have shown to be of some importance (O Neil et al., Fox et al., 1976).

The demonstrated marked difference of incidence of whiplash between the 2 groups may be even more significant if the above considerations were taken into account.”

[Emphasis added]

72.4. As observed by attorney for the defendants, that statement about speed

was made in the context of vehicles not having been equipped with head

restraints. In fact this article focused on the marked increase in the

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incidence of whiplash in the unrestrained neck compared with the

restrained neck and indicates that requiring head restraints would be a

major factor in reducing whiplash injuries. As the claimant’s vehicle in

these proceedings was equipped with head restraints the defendants

submitted that the article would actually suggest that she would be less

likely to sustain any whiplash type injury. Logically, the words “significant

symptoms” must obviously relate to symptoms in relation to whiplash

injuries and the doctor has not described this injury as a whiplash injury.

In any event, there is no suggestion in this case that the vehicle that the

claimant was in did not have head restraints or that those head restraints

were not properly positioned. Even further, the study was done with

reference to data on road-traffic accidents at a particular research

laboratory - a differentiating factor which has absolutely no corresponding

or correlating application to the facts at hand.

73. There is no evidence that Dr. Bedaysie has done any empirical studies whatsoever

in this field i.e. the analysis of the effects of low velocity rear-end collisions on the

cervical and or lumbar spine in vehicles with head restraints nor has he referred to

any such study.

74. Clearly, therefore, his application of the sentence highlighted above in the quote

from the article that he relied upon to the facts and circumstances of this case

seems flawed. He admitted that he did not have the empirical data with respect to

the accident – he did not know the speeds involved, the vehicles involved, or any

of the details of the accident whatsoever other than it was a minor rear-end

collision .

75. In that regard, the court is of the respectful view that various factors which may

have an effect on the extent of the injury include the types of vehicles involved

(whether they were heavy trucks or SUVs, etc.), the speeds of the vehicles, their

weights, the location and direction of the impact, the location of head restraints,

the angle and height of the seats along with any other relevant factors.

Respectfully, Dr. Bedaysie had absolutely no information of any of these factors, if

they are in fact relevant.

76. Dr. Bedaysie then went on to state that he advised the claimant that the nature of

her injuries were such that she would be able to work approximately 3 hours per

day and not any longer. She was also advised to avoid any strenuous work where

bending is required. The doctor’s advice to, on the one hand, work only 3 hours a

day but, on the other, to avoid bending is very telling of the lack of a history taken

from the claimant in coming to his findings. The claimant was identified as an

aesthetician by Dr. Bedaysie. The claimant’s evidence was that the job as an

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aesthetician entails bending over to treat customers’ feet, face, fingers, waxing and

deep tissue massaging. It appears that Dr. Bedaysie never questioned the claimant

about the nature of her job or whether or not she had suffered any injuries before

the accident. In cross-examination it became apparent that he had absolutely no

idea what an aesthetician did, only that it had to do with “beauty” and did not

include the task of loading a truck. The claimant also admitted that she had not

disclosed to him the fact that she had sustained a fall as a teenager and that, based

on her evidence, he never asked. She also did not tell him that she was pregnant

at the time of the accident. This is an amazing fact especially since it was later

contended for the claimant that Dr. Bedaysie had considered the alleged medical

report of Dr. Reddy which would have alluded to the fact that the claimant was

pregnant. Therefore, even if Dr. Bedaysie was in a position to conclude that her

injuries were consistent with being in the motor vehicle accident as described by

her, it is certainly not conclusive of whether or not the injuries were caused by said

accident as the doctor failed to make the necessary inquiries that would have

allowed him to make an informed conclusion.

Dr. Devindra Ramnarine

77. Dr. Ramnarine’s report and witness statement appeared to have been made after

an unbiased consideration of the medical evidence before him. His qualification as

a Specialist Medical Officer in the field of Neurosurgery was not disputed.

78. His findings in relation to the M.R.I. scans were similar to that of Dr. Bedaysie with

the exception that he did not find a disc bulge of the L5-S1 level in relation to the

scan of the Lumbar Spine.

79. Dr. Ramnarine went on to explain what an M.R.I. was and explained that it was

impossible to date abnormalities on the M.R.I. scan without previous reference

scans showing that the abnormalities were not present. Further, he explained that

acute spinal injuries including muscle bruising, bony fractures and ligament injury

may be demonstrated on an early M.R.I. scan done hours or days following the

accident but these changes would disappear once healing has taken place.

However, he noted that the scan was done 6 months following the accident and

did not demonstrate any trauma related changes.

80. Dr. Ramnarine was of the opinion that the changes that were present on the scan

could also be due to age related degeneration of the spine and not related to

trauma. According to him such change may be present in the absence of symptoms

but those symptoms may be manifested following a traumatic event albeit a minor

one. Dr. Ramnarine also opined that it was possible that the changes on the scan

may pre-date the accident as there was the presence of osteophytes in the

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claimant’s cervical spine which is suggestive that changes in her cervical spine are

chronic, over 7 months, and not related to a single traumatic event.

81. Having considered the photographs and statements made in relation to the

accident by both parties Dr. Ramnarine stated that it is extremely unusual that

such an accident causes spinal injuries such as bony fractures, ligamentous

disruption or intervertebral disc herniations. He considered Dr. Bedaysie’s report

and while he agreed with the suggested management plan, he stated:

“It is my expert opinion that based on the information provided to me and the MRI scans Ms, Savitri Moonsammy-Motilal does display symptoms and signs that are attributed to problems in her spine. MRI appearances demonstrate changes affecting both her cervical end lumbar spine. It is impossible to identify a causative event or even date these changes based on the MRI scans. It is my view that some of these changes are definitely chronic and certainly pre-dates the incident that forms the subject matter of this case.”

82. The conclusions of Dr. Ramnarine are more measured and objective whereas Dr.

Bedaysie testified that his findings could have gone either way. Dr. Ramnarine’s

evidence was not shaken in cross examination. In a full and frank manner he

agreed with Dr. Bedaysie’s evidence that an annular tear can be trauma related but

further stated that it is connected with general wear and tear in the aging process.

He however disagreed with Dr. Bedaysie’s evidence that it was consistent with a

forward/rear impact as described by the claimant. According to Dr. Ramnarine,

the injury in relation to that type of impact tends to be at a higher level with the

fractures appearing at what is called the thoracolumbar junction.

Dr. Bedaysie’s Second Report filed 12 February 2015

83. This report was filed as an expert report and opinion in reply to the witness

statement of Dr. Ramnarine. This was not, nor did it profess to be, a witness

statement. However, it emerged in cross examination that this expert report was

written in part by the claimant’s attorneys or an authorized agent. The cross

examination by Mr. Hosein in that regard with reference to paragraph 7 of this 2nd

report, which was quite obviously in a different font to the rest of the report

suggesting that it was cut-and-paste from a different source or was not prepared

contemporaneously with the rest of the report, was as follows:

Q: Good. Now your paragraph 7 actually causes me some concern. You talk specifically about cervical osteophytes. Thats what this supplemental report is about. 'Cervical osteophyte formation typically occurs when ligaments and tendons around the bones and joints in the cervical are damaged or inflamed. The inflamed or damaged tissue abnormally influences surrounding bone growth though hard bones are constantly renewing like fingernails and hair. As a result new bone cells are deposited where they would not normally grow. Cervical osteophyte formation is referred to as cervical spondylosis. The term bone spurs illicit images of radiating spikes but bone spurs osteophytes are actually rounded and scalloped. The outer edge of a vertebra with bone spurs can resemble the hem of a ruffled dress or dripped wax

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built up at the bottom of a candle. Traumatic injury can also lead to osteophyte formation.' Yes?

A: You want to see an osteophyte

Q: Now can I suggest well first of all is this you expressing your opinion here in paragraph 7?

A: No that's taken from an explanation.

Q: It's taken from where?

A: An explanation of what an osteophyte is.

Q: Sorry I'm not hearing you?

A: Explanation of an osteophyte.

Q: An explanation of an osteophyte? But you don't say that in your witness statement?

A: We should have yes.

Q: Right. You should have said that. That it is taken from an explanation of an osteophyte where?

A: One of the text books.

Q: One of the text books?

A: Yes

Q: Can I suggest it comes from a written study by Dr. Carl Greene MD?

A: Yes

Q: And its entitled 'Cervical Osteophytes Bone Spurs in the neck'?

A: That's right.

Q: Yes? You would accept that? So this is actually taken completely out of ...?

A: Yes

Q: It is cut and paste for want of the better expression into your witness statement?

A: Yes

Q: So this is not you speaking?

A: No. This is an explanation.

84. After the court confirmed that the paragraph recited the words from Dr. Greene’s

text, the cross examination continued:

Q: Did you see this witness statement at the time it was presented to you? Prepared?

A: Yes

Q: Did you prepare it?

A: Partly

Q: What did you prepare in this witness statement?

A: Most of the medical stuff

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Q: Most of the medical stuff. Alright. Well it's a medical opinion so I'm not sure what you mean. Which parts of it you didn't prepare?

A: Well that part for sure and ... you see legalese and medical reports need to be blended sometimes so you have to depend sometimes on the lawyers to turn it into legalese.

Court: So you did not prepare this particular paragraph 7?

A: No. I didn't prepare that.

Cross Examination continues

Q: Did you read the witness statement before you signed it? Did you accept that this was not your evidence?

A: Well it is somebody else's.

Q: It is commended as if it is your evidence?

A: It is actually an explanation but I suppose...

Q: You have cited other things in your other reports, in your other witness statement but here it is being presented as though it is your words which you accept it is not?

A: No that can't be my words

Q: Right. This is the expression of an opinion from another person.

A: Yes

Q: Who has written a paper on it?

A: Yes

Q: And I want to suggest to you that in the use of the language they have used here 'The inflamed or damaged tissue abnormally influences surrounding bone growth though hard bone are constantly renewing like fingernails and hair. As a result new bone cells are deposited where they would not normally grow. Cervical osteophyte formation is referred to as cervical spondylosis.” Yes?

A: Yes.

Q: That there is an omission. Before the words 'cervical osteophytes formation' is referred to as 'cervical spondylosis' There are the words. These joints include these discs include the disc spaces?

A: Yes

Q: You would?

A: Yes.

Q: And would you accept as well, critically doctor, that at the end where it says “traumatic injury can also lead to osteophyte formation…” that before that other words “other types of arthritis, traumatic injury and poor posture can also lead to osteophyte formation”?

A: I would disagree with poor posture

Q: Well you would not agree with poor posture but I am suggesting to you that is what the work has?

A: The work has that, yes

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85. The words there being referred to, which were not that of Dr. Bedaysie, were in

relation to Dr. Bedaysie’s explanation of a cervical osteophyte in his supplemental

report. Nowhere in his first medical report did he make mention of osteophytes or

the development of same and his attempt to explain that later on was that the issue

only arose out of Dr. Ramnarine’s opinion. Yet, if this was an indicator of the extent

of the claimant’s injury then it ought to have been there at first instance. In this

supplemental report he accepted that the deterioration in the cervical and lumbar

spine could occur naturally but he disagreed that the M.R.I. scans did not

demonstrate trauma related changes then went on to explain why he did not agree.

Tied to his explanation was a definition of cervical osteophytes which indicated

that traumatic injury can also lead to its formation. However, whomever prepared

the report, it having already been established that it was not fully Dr. Bedaysie’s,

purposefully altered by deletion what appears to have read….”other types of

arthritis, traumatic injury and poor posture can also lead to osteophyte formation”. To my

mind, this was a startling admission by a well-qualified and experienced specialist

practitioner who had obviously allowed this second report to be tainted by

plagiarism and deletion of a significant part of the plagiarized material in what

was a seemingly obvious attempt to tailor the “expert evidence” to suit the claim.

86. Dr. Bedaysie also makes the most shocking statement that he cannot agree with

Dr. Ramnarine’s opinion that the osteophytes in her cervical spine is suggestive

that changes in the cervical spine was over 7 months as there is no history, medical

or scientific data for him to conclude that. Further he noted that her history and

medical records did indicate that she received trauma to her neck and back as per

Dr. Reddy’s report but, remarkably, that report never found its way into his hands

at the time of his examination of the claimant so it could not have formed part of

his consideration at that time. It is beyond confusing that a doctor who has failed

to properly investigate a patient’s history, medical or otherwise, would rely on

that lack of evidence as the basis upon which he makes a finding especially after

having certified that he understood the duty to the court. It is as if Dr. Bedaysie

was informed of the accident and decided that was the cause of the claimant’s

complaints without any independent/unbiased consideration as to whether or not

it was in fact the cause.

87. Dr. Bedaysie went on at paragraph 11 of this report to talk about having seen

minor accidents such as a “slip and fall” with an even much lower force of impact

than this accident result in more serious cervical and lumbar spine injuries than

the claimant. However, having already ascertained that he knew nothing about

the force of impact involved in this accident, it is difficult for this court to accept

this conclusion. Further, it seems apparent to this court, that the forces at work in

a “slip and fall” would operate in a different direction and manner than in a rear-

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end, low velocity vehicular collision. Therefore, the analogy drawn seems

inappropriate and inapplicable.

Matters discovered by the court after the close of the case

Paragraph 10 of Dr. Bedaysie’s Supplemental Report:

88. At paragraph 10 of his report, he spoke about the principle known as “magnification

of acceleration” which, quite obviously, would be a principle more apt to the field

of physics and mechanical engineering, which is not Dr. Bedaysie’s speciality or

area of expertise, than neurosurgery, which is. Again, it is absolutely striking that

this paragraph, like paragraph 7 mentioned above, contains 2 sets of fonts with

obvious interlineations. This paragraph, with the portions thereof which are in a

different font to the font used at the beginning of the paragraph and which are

highlighted and underlined, reads as follows:

“Passengers such as Ms. Moonsammy are also at risk regardless of the speed of the impact, grounded on a principle known as “magnification of acceleration.” This means that the occupants of the car will accelerate much faster than the car being impacted and so will absorb much of the force involved.”

89. This was not the subject of cross-examination. However, in this court’s research, it

came upon the following quotation from an article online – “Can Low-Impact

Accidents Cause Injuries?”7. The court has emphasized in bold and by underlined

a portion of this quotation, which forms a particular section of the article referred

to, which bears the exact same words which are emphasized in paragraph 10 of

Dr. Bedaysie’s second report:

“The Forces Involved in a Car Accident

Few people will dispute the great forces involved in a high-speed automobile collision, but these forces also apply in low-speed impacts. A typical automobile weighs about 2,000 pounds, so a collision at 10 miles per hour will result in an average impact force of about 3.7 tons. A larger vehicle of about 3,000 pounds, colliding at 10 miles per hour, will produce an average impact force of about 5.6 tons, a significant blow to an occupant’s neck and back.

Victims in rear-end collisions are also at risk regardless of the speed of the impact, based on reliable car crash studies, grounded on a principle known as “magnification of acceleration.” This means that the occupants of the car will accelerate much faster than the car being impacted and so will absorb much of the force involved — over 5 tons worth in the example given above. An experienced automobile accidents attorney should be consulted for more information.”

90. Once again, it is obvious, that someone – whether Dr. Bedaysie or the same person

who plagiarized his previously mentioned paragraph 7 – has cut-and-paste work

7 http://www.attorneys.com/auto-accidents/can-low-impact-accidents-cause-injuries

http://www.attorneys.com/auto-accidents/who-is-liable-in-a-rear-end-collision/

http://www.attorneys.com/auto-accidents/

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which is not Dr. Bedaysie’s original work but, rather, the work of the author of the

article cited.

91. This article was forwarded by email to the attorneys for the parties after the court

had indicated that it had concerns about Dr. Bedaysie’s evidence. In that regard,

and also in light of the fact that the court indicated the seriousness with which it

was treating this new revelation to the extent that it was considering whether a

report of this information from Dr. Bedaysie should be sent to the Medical Board

of Trinidad and Tobago, on opportunity was given, upon his request, for Dr.

Bedaysie to obtain independent legal advice. Despite the same, and despite the

invitation extended to Dr. Bedaysie to attend court to clarify this issue and to

explain how this information may have found its way into his supplemental

report, he did not accept.

Paragraph 9 of the Report:

92. Sometime after the invitation referred to above, the court discovered another

suspicious bit of evidence in his supplemental report. At paragraph 9 of his report,

which was not the subject of extensive cross-examination, Dr. Bedaysie talked

about an independent study allegedly done by the Spine Research Institute of San

Diego but failed to provide the court with a copy of the same and never gave any

citation for it. The exact words of his paragraph were as follows:

“A minor event or a minor velocity collision does not necessarily equate to a minor or a less traumatic injury. The Spine Research Institute of San Diego who crashed dozens of cars in an independent study found that a large percentage of occupants get injured in no damage crashes.”

[Emphasis added]

93. The court has found the following information at

http://www.batchelorchiropractic.com/whiplashandmildtraumaticbraininjury/ under

the heading “More Whiplash Research” at page 4:

“5 MPH Bumper Damage Myth

It has been widely reported that the majority of automobiles deform or crush, as per the manufacturer’s rating at 5mph, and as a result, occupants can not be hurt at such a low velocity of impact. The Spine Research Institute of San Diego who crashed dozens of cars in an independent study, found a flaw in the manufacturer’s rating. As you can see by the late model car in the graphic (which is only one of many models crashed), the car withstood multiple crashes beyond 5 mph, therefore invalidating the manufacturer’s report. Their research showed that “cars can withstand speeds of 8 – 12 mph without sustaining crush damage.” Richter et al (2000) showed in their research that occupants sustained injuries beginning at 6.8 mph, proving that a large percentage of occupants get injured in no damage crashes.”

94. The words highlighted by the court in the quotation set out in the preceding

paragraph seem to have been lifted off from this research excluding quite a

http://www.batchelorchiropractic.com/whiplashandmildtraumaticbraininjury/

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substantial portion of the words in between to come to a conclusion which seems

fitted to meet the circumstances of this case. Once again, the learned doctor did

not refer the court to this research or to the full transcript including the actual

study done. Had it been provided, it would have been obvious that the research

done by the Spine Research Institute of San Diego found a flaw in the

manufacturer’s ratings but did not find that a large percentage of occupants get

injured in no damage crashes. That latter finding in fact came from research done

by Richter et al., research which was not provided for this court.8

95. The court did not refer this later discovery to him having regard to his failure to

respond to the court’s earlier invitation and request mentioned above.

Comment

96. Dr. Bedaysie – a professional who comes to assist the court - was given an

opportunity to explain what happened in the supplemental report in relation to

the court’s discovery with respect to paragraph 10 thereof. Having regard to the

fact that he did not respond, the court infers that his explanation would be similar

to what transpired in cross examination in respect of paragraph 7 of the same

report. As a result, the contents of his supplemental report seem to be the

manifestations of the words of others rather than of himself and therefore the court

does not feel comfortable relying upon his evidence. It is difficult, in light of the

court’s impression of plagiarism which was not been displaced, to rely upon any

of his evidence as it may not be truly his. His failure to attend at the court’s

invitation cast him in a negative light as he did not seem interested in clarifying

the court’s impression.

97. Further, he never mentioned anything about osteophytes in his report until after

Dr. Ramnarine mentioned it and then attempted to justify his conclusion by

relying upon what seems to be flawed reasoning. Particularly, having not taken

any relevant information from the claimant as to her history, etc. (he did not even

know that she was pregnant), he is not able to assist this court with a true analysis

of the claimant and her diagnosis and prognosis.

98. The court notes that Dr. Bedaysie, in his evidence, indicated that he had seen Dr.

Reddy’s report when he had attended to the claimant. If that were so, then he

would have been aware from that report that she was pregnant. Yet, in cross-

examination, he was clear when he said that he did not know that she was. The

court has serious doubts as to whether he in fact had Dr. Reddy’s report at the time

8 The report is possibly at https://www.researchgate.net/profile/Hans_Pape/publication/11874851_Correlation_between_Crash_Severity_Injury_Severity_and_Clinical_Course_in_Car_Occupants_with_Thoracic_Trauma_A_Technical_and_Medical_Study/links/0046353bf949271d19000000.pdf

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of his examination of the claimant. If he did, one would have expected that he

would have referred to it in his original report but he did not. At the very least, he

would have read the allegation in that report that the claimant was pregnant and

that information would have been brought to his attention.

99. All in all, the court was very disappointed in, and even alarmed by, the evidence

given by Dr. Bedaysie and is of the respectful view that he has come across as a

person who was hired specifically to put forward a case to this court without

regard to the true position of the claimant. In fact, his very selection as the expert

by Dave Maharaj, by his own admission, raised eyebrows as he was quite

obviously not selected by the claimant nor was she referred to him by any

practitioner to act on her behalf for medical purposes as is the normal practice. He

came across as partisan with evidence tailored for litigation purposes.

100. The court raised its concerns with respect to the court’s findings in relation to

paragraph 10 of his supplemental report at the date which was fixed for the

delivery of this court’s decision. Prior to the date, the court indicated that it was

not yet ready to deliver its decision and instead wished to see the parties. When

the parties attended, Mr. Sanguinette, for the claimant, was apprised of the court’s

concern without giving any details at that time except to say that the Court wished

to have Dr. Bidaysie attend to give further evidence. At that time, the court was

protective of the information it had received in relation to that paragraph 10 in

order to ask Dr. Bidaysie about it and to give him an opportunity to explain it

without prior coaching. Mr. Sanguinette indicated that he would have had to have

taken instructions on that. That hearing was followed up by 2 emails from the

claimant’s attorney – the first being that the claimant’s attorney wished to make

an application for the court to recuse itself and secondly to allow 21 days for Dr.

Bedaysie to obtain legal representation and advice in light of the court’s indication

that it was concerned about Dr. Bedaysie’s evidence to the extent that it could

possibly result in the court referring the matter to the Medical Board of Trinidad

and Tobago.

101. Following this, the court forwarded to the claimant’s attorney its findings with

respect to paragraph 10 of the supplemental report because, at that time, the court

had not found the information relating to paragraph 9 set out above. Since then,

upon the expiry of the 21 day period requested for Dr. Bedaysie to get

representation and advice, the court has found the matters referred to in relation

to paragraph 9 above. Despite the time frame given, Dr. Bedaysie did not present

himself for further cross-examination and as a result of which the court has

proceeded to deliver its judgment.

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102. Overall, Dr. Bedaysie’s evidence is totally rejected by this court as being dishonest

and tailored to assist the claimant’s case. Even at its highest, Dr. Bedaysie’s

evidence cannot prove on a balance of probabilities that it was the accident that

caused the injuries the claimant complained of but merely that it was possible that

it did. The claimant having been referred to him for the purpose of litigation it

appears that he ran with the assumption that the accident caused the injuries and

had his evidence bolstered in his 2nd report by improper cut-and-paste evidence.

103. The claimant’s submission that Dr. Bedaysie was impartial, unbiased,

independent and objective is therefore rejected as is his evidence as he cannot be

seen to be reliable.

Dr. Reddy’s report

104. Despite the fact that this court had struck out Dr. Reddy’s witness summary and

medical report as part of the evidential objections raised by the defendants’

attorney-at-law, which was not appealed, the claimant’s attorney at law sought to

try to reintroduce it as evidence in this matter as a result of a contention that it was

considered by Dr. Bedaysie for his report dated 12 February 2015.

105. The court notes that on the first day of the trial, Mr. Sanguinette, for the claimant,

indicated a desire to have Dr. Reddy still attend to give evidence but then said that

Dr. Reddy was not available that morning due to a prior commitment and would

not be available until the next week from 8 AM. The court notes further that no

application was made nor any suggestion tendered in respect of the matter being

adjourned for Dr. Reddy to attend. In any event, the claimant’s case was closed

without any such application being made.

106. Clearly, as per the list of un-agreed documents signed by the parties and filed in

these proceedings, this report was never an agreed document amongst them.

Therefore, the burden was on the claimant to have it brought into evidence

properly. Since it dealt with matters which were beyond the claimant’s expertise,

and since that was prepared by a person, whose credentials, experience, and

qualifications were never established before this court, the maker of the document

ought to have been brought as a witness. He was not and the explanation proffered

by attorney at law for the claimant for Dr. Reddy’s failure to attend despite the fact

that the witness summons was issued for him was not a complete or an acceptable

one.

107. Reference was made to the fact that attorney at law for the defendants cross-

examined the claimant in relation to that report by Dr. Reddy. However, the report

was never put into evidence and cross-examination on this document does not

automatically make it a part of the evidence until it is physically so done.

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Therefore, the court rejects the submission made by the claimant’s attorney at law

that Dr. Reddy’s report ought to be considered in these proceedings. It did not

form part of the claimant’s case on the pleadings despite the provisions of Parts

8.6 (2)9 and 8.10 (3)10. The suggestion made by attorneys-at-law for the claimant

that there was some sort of waiver of these requirements of the rules by the

defendants’ attorneys at law was not borne out by the record nor by the

defendants’ attorneys’ conduct in pursuing, successfully, evidential objections in

relation to this report.

108. In any event, the thrust of this report was meant to address the issue of nexus

raised by the court at the early CMCs along with the fact that it raised the

contention, which was not one that was pleaded, that the claimant was pregnant

at the time of the accident. Therefore, for completeness, the assertions made in this

report, which in any event was at odds with the claimant’s pleaded case, was

excluded by this court from its consideration as it did not form a part of the case.

109. Reference is made to the fact that a concession was granted at the beginning of the

trial for the report to be referred to as being a report relied upon by Dr. Bedaysie

but more will be said about that aspect later on in this judgment.

Discussion and conclusion

110. The evidence before the court shows that the claimant may have had a prior

chronic generative condition i.e. arising from the fall when she was younger or

possible poor posture but there is no cogent evidence that she has experienced any

adverse symptoms that can be attributed to this very minor accident.

111. When one considers the very questionable evidence of Dr. Bedaysie, the court feels

very uncomfortable in reaching to any conclusion on a balance of probabilities in

favour of the claimant. There is evidence before the court of some sort of medical

problem afflicting the claimant but she has not established on a balance of

probabilities that she suffered these injuries as a result of the accident in 2011. It is

more likely than not that the same arose as a result of degenerative issues as

described by Dr. Ramnarine, whose evidence the court prefers to that of Dr.

Bedaysie for the reasons given.

9 Part 8.6 (2)- The claim form or the statement of case must identify or annex a copy of any document which the claimant considers necessary to his case. 10 Part 8.10 (3) – If the claimant will be relying on the evidence of a medical practitioner the claimant must attach to the claim form a report from a medical practitioner on the personal injuries which he alleges in his claim.

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112. To my mind, and even taking Dr. Bedaysie’s evidence into account, this claimant

seems to have come before this court upon the mistaken impression that she would

be successful just upon her say-so as opposed to producing any corroborating

evidence to substantiate her claim. In passing, the court notes that no one else

suffered injuries or losses arising out of this accident. The 1st ancillary defendant

claimed damage to his vehicle in the sum of $1,800.00 but never attended court to

substantiate that claim, and in fact abandoned the claim at the trial, and so the

court rejects that any damage was done other than as shown on the photographs

which, in the case, was absolutely de minimis. To ascribe to this minimal touching

of 2 vehicles any of the ramifications alleged by this claimant would be to

manufacture an outcome out of nothing in light of the quality of the evidence

which the court has – an outcome which is what the court gets the impression it is

being asked to ratify here.

113. The claimant’s allegation with respect to having been unable to work after the

accident was proven to be untrue by her own Facebook posts to her clients prior

to her leaving Trinidad in August 2012 to emigrate to Canada and then afterwards

when she was in Canada and announced opening for business over there. There

was not one shred of evidence of any alleged income to the extent that she sought

to allege before this court. The bona fides of her claim with respect to the extent of

her injury is rejected especially in light of the matters referred to above relating to

the availability of OHIP, the failure to produce one shred of evidence of any

follow-up medical treatment after leaving Trinidad despite the availability of more

than adequate free healthcare both locally and abroad and the finding reached by

this court of her unreliability brought about by her failure to accord with her

pleaded case by trying, for example, to raise the issue of her pregnancy even

though that was never referred to by her in the pleadings or by her specialist and

expert doctor.

The Order

114. The court rejects the claimant’s case of having incurred damages as a result of the

accident in its totality. She has not been able to prove any aspect of the particulars

of negligence although the court was able to establish the liability involved to be

apportioned 80% for the 2nd ancillary defendant and 20 % for the 2nd defendant.

Not only does the court find that she has not established any injury arising out of

the accident, it also finds that she has attempted to manufacture a claim which is

not based on any cogent evidence whatsoever and that claim is rejected.

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115. With respect to the ancillary claim, the court again notes that there were no

damages arising under the counterclaim to the ancillary claim so that an allegation

of any liability without any damages arising is of no consequence in the

proceedings and the court is therefore not required to come to any finding on this

counterclaim.

116. The claim is dismissed, as is the ancillary claim and the ancillary counterclaim.

117. By consent the parties agree that the issue of costs be reserved to be dealt with by

the court after reviewing their full written submissions. Such full written

submissions to be filed and exchanged by 5 May 2017 and any replies thereto to

be filed and served by 15 May 2017. All submissions to be forwarded to the court

by email on the days prescribed for filing copied to the other sides in word format.

118. With respect to the issue of costs the court will consider a wasted costs order being

made under part 66 of the CPR against Mr. Yaseen Ali and in that regard an

appropriate notice would be sent out to the parties involved before the next date

of hearing.

119. The court will also consider at the next date of hearing whether Mr. Yaseen Ali

should be referred to the Disciplinary Committee of the Law Association pursuant

to section 37 of the Legal Profession Act

120. Further hearing on the issue of costs is adjourned to 23 May 2017 at 9:30 AM in

POS 20.

121. The court directs the Registrar of the Supreme Court to forward a copy of the

judgment herein to the Council of the Medical Board of Trinidad and Tobago.

………………………………………………………………

Devindra Rampersad J

Assisted by

Charlene Williams

Judicial Research Counsel

Attorney at Law

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