Robert v United Concrete Product (Seychelles) Ltd (CS 45/2015) [2018] SCSC 8075 (15 February 2018)

IN THE SUPREME COURT OF SEYCHELLES Civil Side: CS45/2015 [2018] SCSC /"15 ELVIS ROBERT Plaintiff versus UNITED CONCRETE PRODUCT (SEYCHELLES) LIMITED Defendant Heard: Counsel: Miss Louise for plaintiff Mr. Chetty for defendant Delivered: 16 February 2018 JUDGMENT ._---- --_._--_ _._-_ _-----_._----- 1. In the plaint, Plaintiff Elvis Robert is surng Defendant United Concrete Product (Seychelles) Limited (" UCPS") for damages as a result of an accident at work. The plaint avers that Elvis Robert was in the process of cleaning gutters at the UCPS Providence site when stacks of concrete bricks fell onto him, injuring his back. UCPS denies the claims of Elvis Robert and claims that he was not tasked to clean the gutters; and that the accident occurred through his sole negligence. Moreover, the defence avers that Elvis Robert was paid compensation by Sacos Insurance Company Limited in the sum of Seychelles Rupees 5,000.001- in full and final settlement of the claim against it. 2. 3. The evidence for Elvis Robert The evidence of Elvis Robert. The only version of the accident is that of Elvis Robert. Elvis Robert used to work for UCPS, as a forklift driver. Mr. Lablache, who gave directions to staff, asked him, on 24 May, 20 I0, to clean the gutters on site, which he cleaned on the 24th and 25th, without any accident. On 26 May, 20 I0, at 7 45 a.m., he was cleaning the gutters, which were full of water and pieces of brick. Bricks were stacked close to the gutters, from where he was cleaning. While he was stepping on pieces of brick, he felt his body slipping so he leaned against the bricks and then he fell onto the bricks hitting his back on them, and the bricks fell onto his body and chest. 4. There were scratches on his stomach and he experienced back pain and pain throughout his body. Elvis Robert suffered injury to his spine. He was rushed to the Victoria hospital in an ambulance, where he stayed for one week. Upon leaving the Victoria hospital, he underwent physiotherapy at the N0l1h East Point Hospital. He walks with crutches. As a result of his spinal cord injury he is unable to sleep well, to move, to walk in a straight line, and to bend his knees. The accident affects him morally and has affected his future because it has impaired his ability to find a steady job and to contribute at home. 5. Since 2011, Elvis Robert has been receiving invalidity benefits from the Social Welfare Agency. He now receives Seychelles Rupees 5050.00/- monthly. (Exhibits P2, P3, P5, P6, P7 and P8). The Social Welfare Agency also provides him with "home care assistance under family support on a half day basis effective October 2012". (Exhibit P4). 6. When cross-examined, Elvis Robert states that he was paid Seychelles Rupees 5,000.00/ from Sacos Insurance Company Limited "in full and final settlement discharge and satisfaction". The FORM OF DISCHARGE is before the Court as Exhibit D 1. 7. The evidence of Doctor Jhowal Manu ("Dr. Manu''). Dr. Manu testifies that he used to work for the Ministry of Health as a Specialist Medical Officer in the Department of Orthopedic. He is now in private practice. He knew Elvis Robert from as far back as 2005-2006 as a patient, who would complain of back pain. They treated Elvis Robert on several occasions. Later Elvis Robert decided to go for an operation abroad after which his condition improved. 8. In 2012, Elvis Robert sought his services complaining of worsening lower back pain and pain in his legs. He reported that he had an accident around 2 years back. Dr. Manu ordered an MRI scan and from the MRI scan report, he was able to say that Elvis Robert had a "prolapse disc". Dr. Manu referred him to physiotherapy to strengthen his back muscle and stimulate the nerves. However, the treatment did not yield much. Dr. Manu referred Elvis Robert to Dr. Louange, a spine surgeon. He did not see Elvis Robert after that. 9. When cross-examined, Dr. Manu states that Elvis Robert always had a back problem. He states that Elvis Robert underwent a laminectomy, though he had not seen the report of the operation. 10. Evidence of Doctor James Commettant (Dr. Commettant). Dr. Commettant, an "Emergency Physician by specialty" and a family practitioner at the Beau- Vallon Health Care Centre, testifies that Elvis Robert was brought to him on 26 May, 2010, at 8:45 a.m., with a history of having bricks fell onto him during working hours. The undated CONTINUA nON SHEET in the name of Elvis Robert is before the court as Exhibit P9. He had multiple injuries; mainly some abrasions on his chest and back. A chest examination did not diagnose any internal bleeding. Elvis Robert complained of pain in the right side of the upper part of the abdomen and the lower part of the spine. He made a diagnosis of "blunt trauma to abdomen" and proceeded to do an ultrasound of Elvis Robert's abdomen, which did not diagnose any internal injuries to his abdomen. The CT scan he ordered did not diagnose any obvious acute spinal cord injury. It is to be noted that Exhibit P9 refers to "MRJ of the lumbar spine done: see attached results", which results were not tendered to court. Dr. Commettant referred Elvis Robert to Dr. Manu, a "bone specialist". 11. The evidence of Doctor Joseph Joachim Bistoquet ("Dr. Bistoquet''). Dr Bistoquet is a medical practitioner, who has practiced over 22 years and has been working as a specialist for over 9 years. 12. He did not deal with Elvis Robert personally. Dr. Bistoquet was not aware about the medical history of Elvis Robert. He wrote a report dated 17 April, 2015, (Exhibit PI0), showing the results of the MRI Scan, which was done on 31 March, 2015. Exhibit PIO shows that Elvis Robert had "lumbar spondylosis and that this will happen with age, anybody can have it at a certain age". Upon being questioned about the term "spondylosis", he states that "Itl» all the term which we sometime use is degeneration but this it shows aging. And some people it can start a little lower, some people can start at a later age ... [a]ging process is the main factor but ... speeding up can happen. It is sometimes with sport or with physical activity ... ". 13. The evidence of Doctor Danny Thomas Louange ("Dr. Louange''). Dr. Louange is the Chief Executive Officer of the Health care Agency of the Ministry of Health. Dr. Louange has been a medical practitioner for over 20 years and an Orthopedic Spine Surgeon for over 12 years. 14. He first saw Elvis Robert on 22 April, 2015. According to an extract of the medical record of Elvis Robert, dated 31 January, 2013, Elvis Robert had pain in the lower back radiating to both lower limbs since 2010. [t was observed that stenosis had occurred in the central spinal canal "at multiple level in his lumbar spine ... it means that in his lumbar spine in his lower back spine the space that occupies the neurological elements are narrow", which, according to Dr. Louange, is "abnormal". With reference to the MRI images, Dr. Louange explains that the cause of the abnormality described "w[as] that of degenerative changes ... of the spinal structure which includes the bone the discs the ligmental jlavum". The cause of the degeneration, in the opinion of Dr. Louange "is the aging process". His initial treatment was "conservative treatment that is observed physio, change the lifestyle and rest when he has symptoms". 15. He saw Elvis Robert in April, 2015, who was still "symptomatic". Upon being asked by Counsel "Is it possible in your opinion that his condition could improve? Dr. Louange opines that "A: The nature or the natural history of spinal canal stenosis, his condition is the degenerative condition and it is unpredictable. And it will not get better in the pathology itself; it will get worst but the symptoms may vary. You may have days of feeling better and days of him feeling worst. If. 16. According to Elvis Robert's medical notes his back pain was recorded on his first hospital visit in 1990, but the "symptoms were not significant". It is Dr. Louange's testimony that Elvis Robert reported that he had an accident, in 2010, that aggravated the symptoms; and that aggravation of the symptoms could be explained by exacerbation of the degenerative process. 17. When cross-examined, Dr. Louange refers to a spinal cord surgery, which Elvis Robert underwent, in 2006, abroad. 18. The evidence for UCPS 19. The evidence of Kevin Perrine. Kevine Perrine is an assistant Human Resource Manager at UCPS. He has been with the company nearly 3 years. Elvis Robert had been paid an amount of Seychelles Rupees 5,000.001- by Sacos Insurance Company Limited. 20. The Analysis 21. It is a settled position of our jurisprudence that "an injured party could claim compensation from the author of a "delict" irrespective of any claim he might have been paid by his insurance company"". Sinon v Chang Lcng 1974 SLR 301; United Concrete Products (Seychelles) Limited v Mark Albert 19/1994; Jacques v Property Management Corporations Supreme Court 385/2006; Government of Seychelles v Charles Ventigadoo SeA 2812007. 22. In light of the facts of this case, the court has to consider the issue of causation. Elvis Robert's accident was not disputed by UCPS. The issue is whether Elvis Robert suffered a spinal cord injury to the lumbar cord; a voluminous EDL L5-S I left with fragmentary (Further and Better Particulars of Plaint dated 5 October, 2015) in the course of the accident. It is trite law that: "il ne suffi: pas d'etablir I 'existence d'un prejudice et d'un fait generateur de responsabilite pour que naisse aussitot un droit it reparation au profit de fa victime du dommage. Encore faut-il qu 'une relation de cause it eifet soit etablie et constatee par Iejuge entre Ie fait generateur et Ie prejudice invoque. If. The burden is on Elvis Robert to establish that he suffered the injury in the course of the accident. The court refers to JurisClasseur: Responsabilite Civile et Assurances: Art. 1382 a 1386: fasc. 160 at note 64 seq- ''Note 64: Conforrnernent au droit commun, la charge de la prevue du lien de causalite pese, en principe, sur Ie demandeur en responsabilite; c'est done ala victime qu'il appartient, en l'absence de toute presomption legale en sa faveur, d'etablir qu'un fait generateur de responsabilite est en relation causale avec Ie prejudice dont elle se plaint. A defaut, elle sera deboutee de sa demande de reparation, et supportera done I'absence de preuve. La jurisprudence fait une constante application de ces principes. Note 65: Ce que Ie demandeur doit etablir, ce sont les conditions d'existence du lien de causalite, c'est it dire Ie rapport de necessite entre Ie fait generateur et Ie dommage. Pour que cette preuve soit rapportee, il faut et il suffit que la victime etablisse qu'un fait generateur de responsabilite a ete une condition sine qua non du dommage, un evenement sans lequel Ie dommage ne serait pas produit on n'aurait pas ete aussi grave. La relation causa Ie doit done, en principe, etre etablie avec certitude, ce qui ne laisse aucune place de doute; les juges devront rejeter la demande en reparation tant qu'une incertitude demeure sur I'existence de la relation causale, c'est it dire tant qu'ils n'ont pas acquis la conviction que Ie fait generateur a ete indispensable it la realisation du dornrnage .... " (underlining is mine). 23. The court has considered the written submissions on behalf of Elvis Robert. Elvis Robert states that he suffered injury to his spine in the course of the accident. His medical notes illustrate that his first visit to the hospital, where he complained of back pain, was in 1990. Dr. Commettant first saw Elvis Robert at the Beau VaIIon Clinic on 26 May, 2010. A CT scan did not diagnose any obvious acute spinal cord injury. Dr. Commettant ordered an MRI of the lumbar spine, the result of which is not before the Court. 24. Elvis Robert saw Dr. Manu about his medical condition in 2012. Dr. Manu testifies that Elvis Robert had a ''prolapse disc". In light of the testimony of Dr. Manu the court cannot determine whether the injury pleaded was sustained by Elvis Robert as a result of the accident of the 26 May, 2010. 25. Dr. Bistoquet made a report dated 17 April, 2015, in relation to an MRI scan done, on 31 March, 20 IS, about one month before this suit was filed. Dr. Bistoquet was not aware of the medical history of Elvis Robert. His impression was- "Impression: Lumbar spondylosis. Associated muscle spasm. Multilevel degenerative disk disease. L4-LS intervertebral disk concentric bulge, associated with posterior osteophytes and facet joint hypertrophic OA, causing narrowing of the intervertebral neural foramina. Impingement of L4 exit nerve roots cannot be excluded. LS-S 1 intervertebral disk left paracentral type herniation, likely causing impingement of transiting left S 1 nerve root. Type 2 degenerative endplate disease at LS-S 1 level." He opines that lumbar spondylosis is a spine condition that refers to the natural deterioration of the lower spine mainly due to age. He adds that the condition may be aggravated by physical activity or sport, Again in light of the testimony of Dr. Bistoquet, the court is unable to determine whether the injury pleaded was sustained by Elvis Robert as a result of the accident of26 May 20 10. 26. Dr. Louange opines, concerning Elvis Robert's condition, that stenosis had occurred in the central spinal canal. The cause of the deterioration, in his opinion, was "... the aging process ... ". Referring to the pathology of Elvis Robert's condition, he stated that his condition "will not get better ... it will get worst but the symptoms may vary". Again in light of the testimony of Dr. Louange, the court is unable to determine whether the injury pleaded was sustained by Elvis Robert as a result of the accident of26 May 2010. 27. Dr. Louange opines that the accident of 10 May, 2010, could have aggravated the degenerative process. 28. Decision 29. In light of the medical opinion and findings, the court finds that Elvis Robert has failed to establish that there was a lien de causalite between the accident of the 10 May, 2010, and the spinal cord injury to the lumbar cord, a voluminous EDL LS-S 1 left with fragmentary. The claim of Elvis Robert is dismissed, save for the following order. 30. In light of the testimony of Dr. Louange, who suggested that the accident of 10 May, 2010, could have aggravated the degenerative process, the court makes a compassionate award of Seychelles rupees 30,000.00/- to Mr. Elvis Robert and orders that UCPS pays Elvis Robert the sum of Seychelles Rupees 30, 000.00/-. 31. Each party shall bear his or its own costs. Signed, dated and delivered at lie du Port on 16 February 2018 9