Claire Oliver Gilkes v St. Clair Thomas et al

THE EASTERN CARIBBEAN SUPREME COURT SAINT VINCENT AND THE GRENADINES IN THE HIGH COURT OF JUSTICE Claim No. SVGHCV1996/0288 Between: CLAIRE OLIVER GILKES Claimant And ST. CLAIR THOMAS 1st Defendant JOSEPH RAJKUMAR 2nd Defendant Before: Master Fidela Corbin Lincoln Appearances: Grahame Bollers with Richard Williams for the Claimant Bertram Commissiong QC for the 1st defendant _________________________ 2016: December, 7 ________________________ Assessment of Damages - Negligent Medical Care – Permanent Tracheostomy – Loss of Income - Loss of Housekeeping Ability – Future Loss of Income

[1]CORBIN LINCOLN M: Mrs. Claire Gilkes commenced this claim against Dr. St. Clair Thomas and Dr. Joseph Rajkumar for damages for personal injuries sustained as a result of their alleged negligent medical treatment.

Background

[2]Mrs. Gilkes visited Dr. Thomas’ office in August 1990 complaining of a sore throat and was treated for tonsillitis. During the course of the next three (3) years she visited Dr. Thomas’ office on a number of occasions for soreness of her throat. At the time she was suffering from a thyroid condition and had a goiter on her neck. Dr. Thomas repeatedly told her that she should consider undergoing surgery to remove the goiter but she never bothered because it was never a source of bother to her.

[3]In or around June 1993 she went to Dr. Thomas’ office accompanied by her husband because she was suffering from a sore throat and hoarseness. Dr. Thomas again raised the issue of having the goiter surgically removed and informed them that he had performed the procedure on numerous occasions both in St. Vincent and Barbados and that it was a simple operation. He informed her that she would loose her voice for a short time after the operation but would regain it fully.

[4]At no time during any of the consultations did Dr. Thomas tell her: (1) that there was a risk of permanent damage to the nerves surrounding her voice box and if that happened her voice box could be paralysed; (2) of any other risks associated with thyroid surgery or advise her of alterative forms of treatment that were available; or (3) that there was a risk of vocal paralysis which could result in difficulty breathing and if that happened she would possibly have to have a tracheotomy.

[5]Mrs. Gilkes contends that if Dr. Thomas had provided her with any information regarding the risks associated with the operation she would not have considered the operation. She decided to proceed with the operation and was admitted to hospital on 27th July 1993.1 She signed a consent form which stated that she was consenting to undergo a thyroidectomy. She was assured that Dr. Thomas would perform the operation. The operation was performed on 29th July 1993 but Dr. Thomas later informed her that the operation was in fact performed by Dr. Rajkumar with Dr. Thomas acting as his assistant.

[6]In the evening after the surgery she started wheezing and vomiting and felt like she could not breathe. On 30th July 1993 Dr. Thomas performed an emergency tracheostomy whereby she was only able to breathe through a tube. She was discharged from the hospital on 6th August 1993 with a hole in her neck which she had to have dressed at a clinic.

[7]The discharge certificate shows that she was admitted to the hospital under the care of Dr. Thomas and that both a subtotal thyroidectomy and a tracheotomy were performed. On 12th August 1993 she went back to the hospital to have the hole sutured.

[8]Mrs. Gilkes continued to be treated by Dr. Thomas as an out- patient. During her visits to him between 9th August 1993 and 14th September 1993 she complained that she was having headaches, snored excessively, had shortness of breathe and difficulty breathing. On 18th August 1993 Dr. Thomas removed the sutures at the hospital. She visited him again at his office on 30th August 1993 complaining about snoring, headaches and shortness of breathe. He told her it was a cold.

[9]She later met Dr. Elsworth Charles while he was collecting his child from Vinsave, the school at which she was employed, and discussed her medical problems with him. She went to his office and he gave her asthma medication and an inhaler. On the following Monday morning while at work she was experiencing difficulty breathing and Dr. Charles took her to the hospital to have an x-ray. He consulted with Dr. Wilfred Layne who advised him that she was suffering from laryngeal nerve injury following the thyroidectomy. Dr. Charles referred her to Dr. Dennis Bailey, an ENT specialist in Barbados. Between December 1994 and March 1995 she had to undergo several procedures to determine the extent of the damage done and to remedy the damage including a diagnostic fiberoptic laryngoscopy in December 1994. On 8th February 1995 Dr. Dr. Bailey operated on her but the operation was unsuccessful. Consequently, she was forced to consider having a permanent tracheotomy which Dr. Bailey performed on 21st March 1995. The result of the permanent tracheotomy is that she has to breathe through a tube in the throat area.

[10]Dr. Bailey informed her that it was all a result of the operation which was performed without her informed consent.

[11]Mrs. Gilkes commenced this claim against Dr. Thomas and Dr. Rajkumar. On 26th November 2012 Mrs. Gilkes obtained a consent judgment against Dr. Thomas. The judgment states: “This action having on the 26th November 2012 been called on for trial before……at the High Court of Justice… AND WHEREAS the Claimant instituted these proceedings against the Defendant for failure to inform the Claimant of the risks associated with the surgical procedure and failing to inform her that the operation would be conducted by the Added Defendant. AND WHEREAS the claimant also instituted these proceedings against the Added defendant for (a) failing to inform the Claimant that he would be performing the surgical procedure and obtaining her consent to the operation ; (b) failure to inform the Claimant of the significant risks associated with the medical procedure and (c) negligence. AND THE CLAIMANT has suffered injury as set out in the Claim Form the risk of which she should have been informed AND UPON hearing counsel for the Defendant. Added Defendant and counsel for the clamant; IT IS BY CONSENT ADJUDGED as follows: 1. Judgment is hereby entered for the Claimant against the Defendant for the personal injury resulting from the Defendant’s failure to fully inform the Claimant of the risks associated with the surgical procedure and failing to inform her that the operation would be conducted by the Added Defendant and for payment by the Defendant to the Claimant of an amount to be decided by the Court and prescribed costs to be assessed. “

[12]On 27th November 2012 Mrs. Gilkes obtained judgment against Dr. Rajkumar in an amount to be decided by the court.

[13]The issue before the court is the quantum of damages that should be awarded to Mrs. Gilkes.

Preliminary Issue

[14]Mrs. Gilkes filed witness statements and submissions prior to the date fixed for the assessment of damages. The defendants failed to file witness statements or submissions prior to the date fixed for the assessment.

[15]On the date fixed for the assessment of damages Queen’s Counsel for Dr. Thomas stated that he has been instructed that Dr. Thomas never instructed Ms. Mira Commission , counsel with conduct of the case, to enter into a consent judgment and the consent judgment was entered in his absence and without his consent. Further, Dr. Thomas instructs that he only recently became aware of the consent judgment and intends to take steps to have the consent judgment set aside. Queen’s Counsel also sought an extension of time to file witness statements and submissions.

[16]The 1st defendant was granted an extension of 14 days to file affidavits and submissions and the matter was adjourned. The 1st defendant filed an affidavit but no submissions. At the adjourned hearing the court was not provided with evidence of the filing of any proceedings and, more significantly, there was no application for or an order staying the proceedings. In the circumstance the hearing proceeded.

[17]At the end of the hearing the parties were given 21 days to file any further submissions. Neither party filed further submissions within the time fixed by the court.

SPECIAL DAMAGES

[18]It is well established that generally damages must be pleaded and proved. 2 Loss of Income

[19]Mrs. Gilkes pleaded loss of income from August 1993 to the date of filing of the claim in the sum of $60,775.00 and continuing thereafter at a rate of $425.00 per month. Her evidence however is that she was employed at as a teacher at Vinsave and earned a monthly salary of $750.00. There was no explanation provided for the discrepancy between the quantum pleaded and the evidence given. Under cross examination Mrs. Gilkes confirmed that she earned $750.00 per month from her job at Vinsave. I accept that Mrs. Gilkes earned $750.00 monthly from her job at Vinsave.

[20]Mrs. Gilkes states that she is seeking loss of income from August 1993 “to date” - presumably to the date of filing of the witness statement - in the sum of $204,750.00 and continuing thereafter at a rate of $750.00. Her evidence with respect to date when her loss of income commenced is however contradictory. She states: “as a result of what happened to me I was obviously unable to speak to my pupils and I had to resign from my job because I had no energy and suffered shortness of breath and felt tired all of the time and in fact I would fall asleep in class.” 3

[21]She does not state the date she resigned from her job and stopped receiving an income but I infer that she is asserting that she resigned and ceased earning an income in August 1993 since this is the period from which loss of income is claimed. Mrs. Gilkes’ claim to have resigned from her job since August 1993 is contradicted by other evidence. Specifically: 2 Ashcroft v Curtin [1971] 1 WLR 1731. Grant v Motilal Moonan Ltd. and Another (1988) 3 WIR 372 (1) Mrs. Gilkes states that she was being treated by Dr. Thomas as an out patient and during her visits to him privately between 9th August 1993 and 14th September 1993 she complained of various symptoms including headaches, shortness of breathe and difficulty breathing. She states that “one day” she met Dr. Elsworth Charles when he was collecting his child from Vinsave and she discussed her medical problems with him , especially her breathing difficulties. She states “ He told me to come to his office and I did and he gave me asthma medication and an inhaler to take. On the Monday morning at work I was experiencing difficulty breathing and Dr. Charles took me to the Hospital to have an x-ray taken.” (2) Mrs. Gilkes tendered a medical report from Dr. Charles. In the report Dr. Charles states that he first became aware of Mrs. Gilkes’ problem of breathing difficulties when he talked to her at her work place (Vinsave) in November 1994. He suggested that she should come to his office the following Saturday for examination and she was examined on 19th November 1994. If Dr. Charles met Mrs. Gilkes at her workplace in November 1994 it follows that she was still employed at least up to November 1994 – more than one year after the time that she asserts or infers that she ceased employment and ceased earning an income. (3) Under cross examination Mrs. Gilkes stated that she could not recall the exact dates she travelled to Barbados but knows that she travelled there for the first time in 1994 and returned again in 1995 for an operation. She states that she did return to work at Vinsave after she “came back from Barbados”. It is unclear whether it was after her return from Barbados in 1994 or her return in 1995 that she did not return to work. What is clear is that if she only stooped working after returning from Barbados in 1994 or 1995 her evidence that she resigned and ceased earning an income in August 1993 could not be true.

[22]In the circumstance the claimant has failed to provide clear and credible evidence of when she ceased employment and ceased earning an income.

[23]With respect to the period for which loss of income is claimed, Mrs. Gilkes is claiming loss of income from August 1993 and continuing. Under cross examination she stated that she has not looked for any other form of employment since 1993 because of her breathing problems.

[24]Under cross examination Mrs. Gilkes admitted that neither Dr. Charles nor Dr. Hughes Dougan told her that she could not work. Under further cross examination, she admitted that after returning from Barbados she was looking for disability benefits from the National Insurance Scheme and went to the medical board to be examined as to whether she was physically and mentally fit to return to work.

[25]Dr. Thomas exhibited a letter from the director of the National Insurance Scheme to the Permanent Secretary in the Ministry of Health, dated 12th May 1995, which states : “Mrs. Claire Oliver Gilkes has applied to the National Insurance Scheme for payment of Invalidity benefit on the recommendation of Dr. E.H Charles. Grateful if this case be referred to the medical board for examination. We would appreciate a definite statement on the patient’s ability to engage in any form of gainful employment.”

[26]Mrs. Gilkes was referred to the report of the medical board dated 1st June 1995, which states: “ A medical board was convened on the 31st May to assess the ability of Mrs. Claire Gilkes to engage in any form of gainful employment. Mrs. Gilkes has a permanent tracheostomy and as such is unable to continue in her former employ as a pre-school teacher. However, her mental and other physical attributes are quite normal and she has already shown an interest in retraining herself for the job market (she has started a fashion design and fabric painting course at home). The board recommends that if possible, some financial support be given to Mrs. Gilkes for the next two years, during which time she will continue her retraining exercise. At the end of this period she should be able to return to the productive labour force”

[27]Mrs. Gilkes stated that she was aware that the board gave a report and was also aware of the content of the report. However, she did not return to work and did not make a second attempt to get an assessment from the board. She denied telling the board that she was doing a fashion painting course.

[28]The medical board found that while Mrs. Gilkes could not continue in her employment as a school teacher her mental and other physical attributes are normal and that upon retraining she could reenter the job market. There is therefore no medical evidence that Mrs. Gilkes was unable to work at all since August 1993 as alleged.

[29]McGregor on Damages, 4 states that the onus of proof on the issue of mitigation is on the defendant, and approval is given at page 191 to the statement of Sir John Donaldson MR in Sotiros Shipping Inc v Sameiet Solholt 5, where he said: “A plaintiff is a under no duty to mitigate his loss, despite the habitual use by the lawyers of the phrase ‘duty to mitigate’. He is completely free to act as he judges to be in his best interests. On the other hand, a defendant is not liable for all loss suffered by the plaintiff in consequence of his so acting. A defendant is only liable for such part of the plaintiff’s loss as is properly to be regarded as caused by the defendants’ breach of duty.”

[30]It is clear that for some period Mrs. Gilkes would have lost income as a result of her injuries. There is no clear evidence of the exact period from which she started to loose income. There is no medical evidence which states that Mrs. Gilkes could not work at all after August 1993 to support a claim for a total loss of income from August 1993 and continuing to the date of filing of the claim in 1999. In the absence of any medical evidence that Mrs. Gilkes was unable to work at all or any evidence of real and substantial obstacles to her retraining and reentering the labour market the defendants in my view should not be held liable for Mrs. Gilkes’ choice not to take any steps whatsoever to return to some form of employment.

[31]In determining what is a reasonable period for which loss of income should be awarded, I have taken into consideration all the circumstances and, in particular, the fact that there is inconsistent evidence with respect to the date when Mrs. Gilkes’ loss of income commenced and the recommendation of the medical board that Mrs. Gilkes be given financial assistance for two (2) years during which time she could retrain and return to the labour market.

[32]I find that the sum of $18,000.00 being loss of income for a period of two (2) years at a rate of $750.00 per month is reasonable compensation for Mrs. Gilkes.

Loss of Domestic Care

[33]Mrs. Gilkes pleaded a loss of $52,800.00 for “domestic care” at a rate of $400.00 per month from July 1993 “to date” – presumably the date of filing of the claim. In her witness statement however she claims the sum of $700.00 per month for domestic care from July 1993 “to date” i.e presumably to 3rd May 2016 when the witness statement was filed. She states that she is aware that the cost of employing domestic assistance to perform domestic chores would amount to $700.00.

[34]There was no evidence led to address the difference between the pleaded cost and the evidence given with respect to the cost of monthly domestic care.

[35]Mrs. Gilkes’ evidence is that since her final operation in 1995 her life has not been the same. She used to be able to perform household duties like cooking, cleaning, washing and other household chores. All her chores in and around the house such as cooking , cleaning, and sweeping are now performed by her husband and brother. The evidence of Mr. Benson Gilkes, Mrs. Gilkes’ husband, is that prior to the operation Mrs. Gilkes “was a good home-maker; she is no longer [sic] to do anything around the home. The Domestic chores around the house are now performed by myself and the claimant’s brother. The cost of providing these domestic services is $700.00 per month.”6

[36]Under cross examination Mrs. Gilkes was asked how she came to the view that the cost of employing someone to perform household chores is $700.00 per month. She stated that she asked around. She admitted that she did not go to the Labour Department to make any enquiries and is not aware that the statutory rate for domestic help is cheaper than $700.00 per month.

[37]In further cross examination Mrs. Gillkes admitted that she succeeds in doing her household chores, including sweeping , but she does so with pain. She admitted that she cooks, cleans and does laundry with a washing machine. Thus while both Mr. and Mrs. Gilkes testified that Mrs. Gilkes is no longer able to perform household chores and that all her chores in and around the house are performed by Mr. Gilkes and Mrs. Gilkes’ brother, Mrs. Gilkes’ evidence under cross examination contradicted this. In the circumstance I find that there is no credible evidence that Mrs. Gilkes lost her ability to perform household chores as a result of the injury and consequently there is no evidence to support the claim for compensation for the cost of “domestic care”.

[38]In any event, while this claim is made under the heading of ‘domestic care’ it appears to me from the evidence that this is in essence a claim for loss of housekeeping ability. It is well established that an award of damages can be made for loss of housekeeping ability. Halsbury’s Laws of England 7states: “Where the plaintiff has suffered an impairment of his ability to perform household chores, that loss will be assessed on the basis of the cost of employing a housekeeper to perform them, even though the plaintiff may choose not to employ a housekeeper. Where a member of the plaintiff’s family voluntarily undertakes to perform the chores previously performed by the plaintiff, the plaintiff is entitled to an award of damages representing the value of those services. Where, prior to the accident, the plaintiff performed an unfair proportion of the household chores, he will not be entitled to damages representing the full amount of those chores actually performed, only those which could fairly be said to represent the plaintiff’s share of such chores.”

[39]In Daly v General Steam Navigation 8 the Court of Appeal held that in assessing claims for loss of housekeeping ability for a pre-trial period : “…the court had to look at the actual loss sustained by the plaintiff, and therefore, in regard to that period, it was not correct to evaluate the loss of housekeeping ability by reference to the amount it would have cost to employ the necessary domestic help when the plaintiff had not in fact employed such help. The pre-trial loss properly fell to be assessed as part of the plaintiff's general damages for pain, suffering and loss of amenity by considering to what extent her difficulties in performing her housekeeping duties due to her disability had increased those damages.” (emphasis mine)

[40]With respect to a claim for future loss of housekeeping ability, the Court held: “…the proper measure of damages was the estimated cost of employing domestic help for eight hours a week during the plaintiff's life expectancy, even though she might not use the award to employ domestic help and might struggle to do the housekeeping herself and use the award for another purpose, for the award so assessed represented the court's view of reasonable compensation for the future loss of housekeeping ability.”

[41]Based on the evidence before the court, I am not satisfied on a balance of probabilities that Mrs. Gilkes lost her ability to perform household chores as a result of the injury sustained, remains unable to perform any household chores and that Mr. Gilkes and Mrs. Gilkes brother have been performing these chores as alleged. Mrs. Gilkes states that she performs her household chores albeit with pain. In any event, there is no evidence of any actual pre-trial costs incurred to engage household help and thus any pre-trial loss falls to be assessed as part of general damages for pain, suffering and loss of amenities. This will be taken into consideration in the award made for pain and suffering and loss of amenities.

[42]I therefore make no award for the claim for “domestic care’, pre-trial or future loss of housekeeping ability.

Lawn Care

[43]The statement of claim avers a loss of $11,440.00 for lawn care at a rate of $400.00 per month from July 1993 “to date”.

[44]Mrs. Gilkes’ evidence is that prior to the operation “ she was tasked with the job of cutting the lawn with a weed eater and or lawn mower and maintaining the yard” 9 but “since the operation I can no longer perform this task. I was forced to hire my brother Alexander Oliver to cut the lawn and to maintain the yard for this service we paid him $400.00 per month.”10

[45]The sum of $108,400.00 is claimed for lawn care at a rate of $400.00 per month from July 1993 “to date.” Mr. Gilkes also gave evidence to this effect.

[46]Under cross examination in relation to the claim for lawn care Mrs. Gilkes stated: • My brother is 58. • Yes, my brother lives with me. • Yes, he is part of the household. • When I gave the witness statement in May 2016 I was living in Prospect. • I am living on the road going down the hill to Salt Pond. • I moved to prospect about 7-8 years ago. • The size of my the land that I live on is about 12,000 sq ft. • I don’t know how much the house takes up. • I can’t give you the area of my lawn • Yes I have enquired about the cost of mowing the lawn. • Yes, I pay my brother Alexander Oliver $400.00 a month to mow the lawn where he lives. • The lawn is mowed twice a month • No I do not pay $200 for every time the lawn is mowed. • No, I do not understand that it is my duty to cut my losses as far as I reasonably can.

[47]The claim for lawn care appears to me to capable of being considered within the scope of a claim for loss of housekeeping ability.

[48]In essence, Mrs. Gilkes’ evidence is that while in full time employment as a teacher she did all household chores and gardening and was also tasked with mowing the lawn. In the absence of any evidence other than oral evidence I am not satisfied about the veracity of the claim that since July 1993 when Mrs. Gilkes was admitted to hospital she has paid her brother, a member of the household, $400.00 every month to mow the lawn. My serious reservations about accepting this evidence stems not only from seeing and hearing Mr. and Mrs. Gilkes give evidence but also from the nature and quality of the evidence adduced with respect to other elements of the claim. This includes but is not limited to : (a) Mrs. Gilkes’ evidence that she ceased employment in August 1993 which could not be true and; (b) Mr. and Mrs. Gilkes’ evidence in chief that she is unable to perform household chores and thus those chores are performed by Mr. Gilkes and Mr. Oliver which was admitted not to be accurate under cross examination.

[49]In the circumstance I am not satisfied on a balance of probabilities that Mrs. Gilkes incurred or will in the future incur the cost of $400.00 monthly for lawn care. I will take into consideration the loss of ability to mow the lawn in the award for pain and suffering and loss of amenities.

Medical and Related Expenses

[50]Mrs. Gilkes’ evidence is that she incurred costs of $35,806.83 for medical and related expenses and that the receipts evidencing this expenditure are exhibited. A careful scrutiny of the receipts discloses that several claimed expenses are unsupported by the receipts. This was conceded by counsel for the Mrs. Gilkes.

[51]The receipts were not marked, numbered or in any chronology order thus creating great difficulty identifying which receipts supported the costs claimed. The claimant and her counsel were therefore required to identify the receipt that supported each claim during the hearing. The schedule of expenses provided by Mrs. Gilkes is as follows: DATE PARTICULARS USD BDS EC$ COMMENT 1. 06.08.1993 Surgery (St. 1,500.00 No receipt Vincent) 2. 06.08.1993 Anesthetist (St. 100.00 No receipt Vincent) 3. 09.08.1993 Hospital Fees (St. 159.60 No receipt Vincent) 4. Feb-April Medication 67.44 91.04 No receipt (Barbados) 5. 06.12.1994 Diagnostic visit 260.00 351.00 No receipt 6. 28.12.1994 X-Rays (local) 50.00 No receipt 7. …12.1994 Airfare to Barbados 380.00 No receipt 8. 00.12.1994 Departure Tax 25.00 33.75 No receipt 9. 00.02.1995 Airfare to Barbados 499.80 No receipt 10. 00.02.1995 Departure Tax 20.00 No receipt 11. 06.02.1995 Laboratory Fees 115.25 No receipt 12. 07.02.1995 Surgery (Barbados) 6,000.00 8,100.00 No receipt 13. 08.02.1995 Anaesthetist fees 750.00 1,012.50 No receipt (Barbados) 14. 08.02.1995 Hospital fees 3,982.00 5,375.70 No receipt (Barbados) 15. 03.04.1995 Hospital fees 2,299.00 3,103.65 No receipt (Barbados) 16. 13.04.1995 Fed Ex to Claire 39.90 Receipt Gilkes provided. 17. 23.10.1995 MCMH Lab Fee 20.00 Receipt provided. 18. 29.04.1996 MCMH Lab Fee 20.00 Receipt provided. 19. 20.02.1997 MCMH Lab Fee 20.00 Receipt provided . 20. 02.12.1997 Insurance – Dennis 100.00 135.00 Receipt Bailey provided 21. 16.01.1999 Fed Ex to Dennis 43.20 No Receipt Bailey 22. 08.02.1999 Laundry 420.00 567.00 No Receipt 23. 08.02.1999 Food/Miscellaneous 500.00 675.00 No Receipt Expenses 24. 08.02.1999 Transportation (12 960.00 1,296.00 No Receipt days Benon Gilkes) 25. 24.07.2001 Insurance – Dennis 100.00 135.00 Receipt Bailey provided 26. 04.09.2003 Caribbean Star 334.80 Receipt Flight to Barbados provided 27. 04.09.2003 Departure Tax 25.00 33.75 Receipt provided 28. 09.02.2005 Insurance – Dennis 150.00 202.50 Receipt Bailey provided 29. 16.02.2005 MCMH Lab Fee 50.00 Receipt provided. 30. 21.02.2005 Fex Ex to Dennis 59.67 Receipt Bailey provided 31. 25.02.2005 People’s Pharmacy 12.75 Receipt provided. 32. 02.09.2005 Maryfield Medical 30.00 40.50 Receipt provided 33. 13.11.2006 Airfare to Barbados 142.75 387.84 Receipt provided 34. 13.11.2006 Queen Elizabeth 40.00 54.00 Receipt Hospital provided 35. 13.11.2006 Queen Elizabeth 20.00 27.00 Receipt Hospital provided 36. 13.11.2006 Medical Attention – 100.00 135.00 Receipt Dr. Bell provided 37. 13.11.2006 Insurance Dr. 150.00 202.00 Receipt Bailey provided 38. 06.00.2007 Fed Ex to Dennis 68.78 Receipt Bailey provided 39. 02.07.2008 Airfare to Barbados 310.00 843.87 Receipt provided 40. 15.08.2008 Caribbean 135.00 Receipt Reference Lab provided. 41. 20.10.2008 Caribbean Medical 80.00 Receipt Imaging Lab provided 42. 03.09.2009 Caribbean 75.00 Receipt Reference Lab provided. 43. 12.09.2003 Consultation 250.00 337.50 Receipt Vincent Clarke provided. 44. 28.10.2009 Caribbean 110.00 Receipt Reference Lab provided. 45. 26.10.2009 Caribbean Medical 80.00 Receipt Imaging Lab provided 46. 24.11.2009- Airfare to Barbados 1,595.50 Receipt 2.12.2009 provided 47. 24.11.2009 Mayfair Medical 50.00 67.50 Receipt provided. 48. 27.11.2009 Imaging & 100.00 135.00 No Receipt Ultrasound Inc 49. 27.11.2009 Medical Services – 150.00 202.50 Receipt Vincent Clarke provided. 50. 12.02.10 – Mustique Airways 356.50 968.60 Receipt 3.3.10 to Barbados provided 51. 07.03.10- Airfare to Barbados 224.60 610.22 Receipt 28.03.10 .provided 52. 13.06.2010 Airfare to Barbados 84.40 229.31 Receipt provided. 53. 20.08.2010 Airfare to Barbados 146.80 398.85 Receipt provided 54. 28.06.2011 Airfare to Barbados 129.60 352.12 Receipt provided. 55. 28.06.01 Airfare to Barbados 488.62 1,327.54 Receipt provided 56. 28.06.2011 Haresh Gopwani 100.00 135.00 Receipt Medical provided 57. 08.12.2011 MCMH Lab 765.00 Receipt provided 58. 08.12.2011 MCMH Lab 15.00 Receipt provided. 59. 27.08.2012 Airfare to Barbados 142.10 386.09 Receipt provided. 60. 30.08.2012 Imaging & 250.00 337.50 Receipt Ultrasound provided. 61. 09.11.2013 Imaging & 250.00 337.50 Receipt Ultrasound provided 62. 28.08.2012 Medical services – 130.00 175.00 Receipt Vincent Clarke provided 63. 10.09.2013 Medical Services – 180.00 243.00 Receipt Vincent Clarke provided Consultation 250.00 337.50 No Receipt. Vincent Carke Departure Tax 25.00 33.75 No Receipt Overseas 767.08 No Receipt Telephone Calls Departure Tax 20.00 No Receipt Airfare to Barbados 348.75 Receipt and Departure Tax provided – B Gilkes Departure Tax 25.00 33.75 No Receipt Insurance – Dennis 100.00 135.00 No Receipt Bailey Consultation – ARS 250.00 337.50 No Receipt

[52]With respect to the expenses listed from numbers 1 to 15 of the schedule, no receipts were provided. However, in addition to the oral evidence of Mrs. Gilkes that these expenses were incurred there are medical reports which confirm that Mrs. Gilkes was referred to Dr. Bailey in Barbados and received medical treatment there. The defendants did not challenge these costs. I therefore accept on a balance of probabilities that these costs were incurred and do not find the quantum claimed unreasonable. Applying the approach of the court in Grant v Motilal Moonan Ltd. and Another 11 I award Mrs. Gilkes $20,892.29 being the total costs set out in numbers 1 to 15 of the schedule.

[53]There is no evidence of how the claim for Fed Ex charges, listed at numbers 16, 30 and 38 of the schedule relate to or flow from the injuries sustained. I therefore do not award these sums.

[54]The claims listed at numbers 17,18,19, 29,40,41, 42,44 and 58 relate to laboratory fees incurred at various laboratories. There is however no evidence of what laboratory tests were conducted in some cases and where some reference is made to the nature of the test there is no evidence of how they relate to or flow from the injury sustained. I therefore do not award these sums.

[55]I am however satisfied that the claims for $12.00 for bronclair listed at number 31 of the schedule, laboratory fee of $765.00 for a CT scan of the neck listed at number 57 of the schedule and the claim for $80.00 for a chest x-ray listed at number 45 of the schedule likely bear some connection to the injury and I therefore award these sums.

[56]With respect to the items listed between numbers 20 to 63 related to travel expenses to and costs incurred in Barbados after 1995, Mrs. Gilkes’ evidence is that between December 1994 and March 1995 she had to undergo several procedures in Barbados to determine the extent of the damages done to her and to remedy the damage including a fiberoptic laryngoscopy performed in December 1994.12 Her final operation was in 1995.13 There is no evidence that Mrs. Gilkes: (1) Was required to or underwent any other operation after 1995; or (2) was required to and did travel out of the jurisdiction after 1995 to receive medical treatment related to the injuries caused by the negligence of Dr. Thomas and Dr. Rajkumar.

[57]Notwithstanding the absence of pleadings or evidence that Mrs. Gilkes was required to travel out of the jurisdiction for medical treatment after 1995 there are receipts evidencing travel to Barbados and expenses incurred there after 1995. At the hearing it was conceded that these claimed expenses were not pleaded or supported by the evidence. In the circumstance I am unable to award special damages for travel to and medical treatment in Barbados after 1995.

[58]Mrs. Gilkes is therefore awarded a total of $ 21,749.29 for medical and related expenses.

GENERAL DAMAGES

Principles for Assessing General Damages

[59]The legal principles governing the assessment of general damages are well established. The main factors to be taken into account are: the nature and extent of the injuries sustained; the nature and gravity of the resulting physical disability; the pain and suffering endured; the loss of amenities suffered; and the extent to which the claimant’s pecuniary prospects have been affected (1) Nature and Extent of Injuries Sustained

[60]A medial report dated 25th October 1995 by Dr. Charles states that he examined Mrs. Gilkes on 19th November 1994. He gave her a Berotec Inhaler and Berotec Liquid for use over the weekend. When he went to her school on Monday, 21st November 1994 she was experiencing stridor and using all necessary muscles of respiration. He took her to Kingstown General Hospital where a chest x-ray and lateral x-ray were performed. The chest x-ray showed increased bronchial markings while the lateral x-ray showed a normal caliber trachea. A consultation was obtained that same morning from Dr. Wilfred Layne who diagnosed Mrs. Gilkes with “damage to the recurrent laryngeal nerve at prior surgery.” He states that Mrs. Gilkes had a partial thyroidectomy on 29th July 1993 and that her surgery was complicated by “Chronic Laryngeal Obstruction due to Bilateral Recurrent Laryngeal Nerve Damage.” He referred her to Dr. Dennis Bailey FSRC (Edin), Consultant in Ear Nose and Throat /Head and Neck Surgery in Barbados.

[61]Under cross examination Mrs. Gilkes states that she is aware that Dr. Charles is a gynecologist and that she knows the difference between a gynecologist and an ENT specialist.

[62]A letter from Dr. Wilfred Layne to Dr. Charles dated 10th March 2016 states that he examined Mrs. Gilkes on 21st November 1994. The letter states: “Her history of hoarseness and difficulty breathing followed Total Thyroidectomy in August 1993 performed by Mr. St. Clair Thomas ENT Surgeon. Her current complaints of vocal tiredness, poor sleep and general fatigue have improved with the medically imposed rest from her Pre-School duties. However, the underlying problems of vocal cord paralysis due to laryngeal nerve injury following her thyroidectomy is unresolved. She needs further E.N.T evaluation from an independent consultant to assess if any useful intervention is possible.”

[63]Dr. Bailey’s report, dated 13th October 1995, states that he first saw Mrs. Gilkes on 6th December 1994 and she complained that she had developed acute respiratory obstruction following thyroid surgery on 29th July 1993. He states that this was apparently due to surgical trauma to the recurrent laryngeal nerves of her larynx (the motor nerves to her larynx), a well recognized complication of Thyroid surgery. A laryngofissure tracheostomy procedure was attempted on 8th February 1995 but acute respiratory difficulty recurred on 21st March after decannulation. A tracheostomy tube had to be reinserted to overcome the acute respiratory difficulty which ensued. A final decision was made by Mr. and Mrs. Gilkes following further medial consultation with him to abandon all further attempts at corrective laryngeal surgery and persist with the tracheostomy tube as a permanent solution. (2) Nature And Gravity Of The Resulting Physical Disability

[64]Dr. Bailey’s report states that a permanent tracheostomy preserves a patient’s life by guaranteeing adequate respiration via a tube inserted in the neck. However, it imposes certain obvious limitations on a patient’s life. He states that “there can be no swimming, no lifting of heavy weights, and limited exertion; and the tracheostomy tube requires constant hygienic lifelong care.”

[65]He states that Mrs. Gilkes will have to live the rest of her life with a permanent tracheostomy tube and all the limitations on her lifestyle it imposes.

[66]A report by Dr. Hughes Dougan, dated 1st October 2015, states that his evaluation on 24th September 2015 shows a permanent tracheostomy tube with a flap valve. In his opinion her condition is irreversible and will not improve in the future. (3) Pain, Suffering and Loss of Amenities

[67]Mrs. Gilkes was admitted to the hospital on 27th July 1993 for a thyroidectomy. An emergency tracheotomy had to be performed on 30th July 1993. She was discharged on 6th August 1993 with a hole in her deck. The hole was sutured on 12th August 1993. After her discharge she began suffering from headaches, excessive snoring and shortness of breath. She was referred to Dr. Bailey in Barbados . On 8th February 1995 Mrs. Gilkes had to undergo a laryngofissure tracheostomy but suffered acute respiratory difficulty which resulted in a tracheostomy tube being inserted.

[68]Mrs. Gilkes states that since her final operation in 1995 her life has never been the same. She still suffers with insomnia and persistent pain and discomfort day and night from the tube in her neck. Her tracheotomy has caused her to withdraw from society and lack self esteem and self worth and she is conscious that she is different from everyone else who has the ability to breathe through their nose. Her condition has caused her to loose interest in anything that may make her happy and she feels at times that she is no use to anyone. She is constantly in a state of depression and feels like her life has been taken away from her.

[69]Before her life changed she enjoyed simple pleasures like fishing, cycling, sewing, painting, playing table tennis, swimming and walking. She was able to perform household duties like cooking, cleaning and washing. She can no longer enjoy any of these things and her chores around the house have to be performed by her husband and brother.

[70]She once enjoyed a healthy sexual relationship with her husband but she no longer enjoys sex and if she does has sex it cannot be prolonged because she is unable to breathe properly and may suffocate. This has put a strain on her marriage as she is not able to sexually satisfy her husband like any wife should. Mrs. Gilkes’ evidence in this regard was supported by Mr. Gilkes who states that they do not have a healthy sexual relationship. Under cross examination Mr. Gilkes explained that a healthy sexual relationship is when you have sex and it lasts for a long time. It is not a healthy sexual relationship if sex does not last for a long time. He confirmed that he and Mrs. Gilkes still have sexual intercourse but it does not last a long time.

[71]All of the above has caused her to loose interest in anything that may make her happy and she does not socialise.

[72]Under cross examination Mrs. Gilkes states that when she saw the medial board in May 1995 and Dr. Dougan in 2015 she did not tell them of any of the matters referred to in paragraphs 26 to 28 above.

[73]Mrs. Gilkes’ evidence is that and she and her husband were considering children but she was advised by her doctor that as a result of her condition “she cannot have children”.14 Under cross examination Mr. Gilkes states that he was informed by Dr. Bailey, who he knows is an ENT specialist, that Mrs. Gilkes could not have children because of her condition. (4) Extent to Which Pecuniary Prospects Have Been Effected

[74]This aspect of the claim will be addressed under the heading of future loss of earnings.

Quantification of General Damages for Pain and Suffering and Loss of Amenities

[75]Counsel for Mrs. Gilkes cites the cases of Travia Douglas v Shivougn Warde et al15 where the court awarded the claimant, who was rendered a paraplegic, $100,000 for pain and suffering and $170,000 for loss of amenities in 2012; Winston George v Anderson Franklyn et al 16 where the court awarded the claimant $90,000 for pain and suffering for the loss of an eye; and the Canadian case of Thorsell v Hoem17 where the claimant was awarded CND$125,000. It is submitted that the sum of $97,500 would be reasonable compensation for pain and suffering and loss of amenities

[76]In 1997 the Court of appeal awarded the claimant in Fenton Auguste v Francis Neptune18 $75,000 for pain and suffering and $125,000 for loss of amenities for injuries which resulted in him being a paraplegic and confined to a wheelchair for the rest of his life.

[77]In Cletus Dolor v Alcide Antoine et al 19 the claimant became a quadriplegic as a result of his injuries sustained in a motor vehicle accident. The medical evidence disclosed that the claimant would never walk again and could not do anything for himself. He spent most of his days in a wheel chair with special convoluted foam behind him for support. He had to be bathed, cleaned and fed, drank from a straw with someone holding the glass for him and had to use pampers and a catheter. He continued to experience pain in his neck and often got bedsores. The claimant, who was an acrobatic dancer, who regularly performed at various hotels and public functions. He had a normal and active sex life prior to the accident but could no longer enjoy this. His girlfriend left him and took away their two children and his prospects of marriage were virtually non-existent. In 2004 the court awarded the claimant $100,000 for pain and suffering and $150,000 for loss of amenities.

[78]While the nature and extent of the injuries and the resulting disability of the claimants in the above cases and the case of Travia Douglas were more severe than that of Mrs. Gilkes I propose to use the awards made in those cases as a benchmark with due regard being given to their antiquity and the effect of inflation on the awards.

[79]In Sheldon Jules v Brent Williams20 the claimant suffered multiple injuries including internal bleeding, factures to the facial bones and wound to the face. The claimant was hospitalised for 9 days and was operated on to deal with the internal bleeding. At the time of his admission to the hospital it was noted that there was severe deformity of the face. The claimant was referred to a plastic and reconstructive surgeon since it was discovered that the claimant had “malocclusion, inability to open his mouth and loss of sensation of his lower lips." The medical report diagnosed fracture of several bones in the face. The claimant had to undergo further surgery and the appearance of his face was permanently altered. The claimant, who was 26 years old and an amateur boxer who represented his country, was awarded $55,000 for pain and suffering and $45,000 for loss of amenities in 2012.

[80]The injuries and resulting disability suffered by he claimant in Sheldon Jules are also not the same as Mrs. Gilkes. I however find the award in that case a useful tool since the claimant suffered injuries to the facial area which affected his appearance.

[81]The court exercises its discretion in determining the quantum of damages that would be fair and reasonable compensation in all the circumstances. In determining how to exercise its discretion on the question of general damages for personal injuries it is well established that: “ In the context of damages for personal injuries, there are certain principles which apply and there is a discretion which needs to be exercised. In the case of pain, suffering and loss of amenity, that discretion could be wholly subjective and hence unpredictable, or it could be precedent based ; that is to say; the trial judge, having considered all of the evidence led before him, would take into account other awards within the jurisdiction and further a field. Awards of similar injuries would be clearly very helpful in relating the claimant’s injuries on a comparative scale. This is not a precise science, leaving much room for the trial judge’s discretion”. 21

[82]In Darel Christopher v Benedicta Samuels dba Samuel Richardson & Co Hariprashad-Charles J stated: “It is obvious that damages for pain and suffering are incapable of exact estimation and their assessment must necessarily be a matter of degree, based on the facts of each case. They must be assessed on the basis of giving reasonable compensation for the actual and prospective suffering entailed including that derived from the plaintiff’s necessary medical care, operations and treatment.”

[83]It is clear that Mrs. Gilkes suffered and continues to suffer pain and discomfort. She underwent several surgical procedures following the thyroidectomy culminating in a permanent tracheostomy in 1995. She still suffers with insomnia and persistent pain and discomfort day and night from the tube in her neck. She performs her household chores but experiences pain while doing so. The permanent tracheostomy will require lifelong hygienic care and will continue to cause discomfort for the foreseeable future. I find that $60,000.00 is reasonable compensation for pain and suffering.

[84]With respect to loss of amenities the medical report by Dr. Bailey states that Mrs. Gilkes will be unable to swim or lift heavy weights and must limit her exertion.

[85]Mrs. Gilkes’ evidence is that she used to enjoy fishing, cycling, sewing, painting, playing table tennis, swimming and walking and that since her injury she has been unable to enjoy any of these activities or perform duties like cooking, cleaning, washing and mowing the lawn. Her chores around the house have to be performed by her husband and brother.

[86]As discussed previously,23 Mrs. Gilkes admitted under cross examination that she is able to perform her household chores but experiences pain while doing do. I therefore find that Mrs. Gilkes was not being candid when she asserted that she is unable to perform any household chores and that these chores are performed by her husband and brother.

[87]Both Mr. and Mrs. Gilkes’ evidence was that they were informed by a doctor that Mrs. Gilkes cannot have children as a result of her tracheostomy. Under cross examination Mrs. Gilkes stated that it is not that she cannot have children but was advised that she should not. There is no medical evidence to support the assertion by Mr. and Mrs. Gilkes that Mrs. Gilkes is unable to and ought not to have children as a result of her condition. In the absence of medial evidence I am unable to accept this evidence.

[88]Mrs. Gilkes evidence was that the permanent tracheostomy has caused her to “withdraw from society” and lack self esteem. She is constantly in a state of depression and feels like her life has been taken away from her. Mr. Gilkes’ evidence was also that Mrs. Gilkes no longer socialises. Under cross examination he stated that when he says that she no longer socializes he means that she no longer goes to parties. She however goes to church and friends and family come to visit her. He is not sure whether she goes to visit friends and family.

[89]I note that while Mrs. Gilkes gives extensive evidence regarding her loss of amenities she failed to mention any of these issues to the medical board or to Dr. Dougan during her recent visit in 2015. Mrs. Gilkes and provided no explanation for her failure to do so.

[90]Taking all the evidence into consideration I find that Mrs. Gilkes’ ability to enjoy activities she once enjoyed has been affected. Mrs. Gilkes is able to and does perform household chores, but she experiences pain in the process. She is no longer able to mow the lawn. I accept that the permanent tracheostomy has negatively impacted her enjoyment of sexual relations with her husband. While there is no medical evidence that Mrs. Gilkes suffers from depression as a result of her condition, I accept that her happiness and self esteem have been negatively affected by her condition. The medical evidence is that her condition is irreversible and will not improve in the future. I find that $30,000 is reasonable compensation for loss of amenities.

Future Loss of Earnings/Impact on Pecuniary Prospects

[91]Mrs. Gilkes seeks damages for future loss of earnings. Damages for future loss of earnings is the amount which a claimant has been prevented by the injury from earning in the future. 24 The conventional approach to calculating this head of damage is the multiplier/multiplicand approach. Alternatively, the court may use a lump sum approach where there are evidentiary uncertainties. 25 24 Heeralall v Hack Brothers Constructing Co. Ltd and another 1977) 25 WIR117 at pages 132

[92]Mrs. Gilkes’ evidence is that she earned $750.00 from her job as a teacher and prior to her injury she intended to open her own preschool from which, after expenses, she would have earned $1800.00 per month. Mrs. Gilkes asserts that she has been unable to engage in any employment as a result of her injury.

[93]Counsel for Mrs. Gilkes submits that using a multiplier of 11.52 and a multiplicand of $21,600 per annum ($1,800 x12) an award of $248,832.00 should be made for future loss of earnings. Alternatively, using the same multiplier and a multiplicand of $9000.00 per annum ($750 x 12) Mrs. Gilkes should be awarded $103,680.00.

[94]I do not accept Mrs. Gilkes’ uncorroborated evidence that she would have earned a monthly net income of $1800.00 if she had opened the intended preschool without any basis being provided for this estimate. I find this evidence purely speculative.

[95]I accept that, as stated by the medical board, Mrs. Gilkes is unable to continue to work as a teacher and consequently I accept that she would be unable to earn the $750.00 which she earned as a teacher prior to sustaining the injury.

[96]In Parahoo v S.M. Jaleel Company Limited Hamel-Smith JA noted that a claimant who claims loss of pecuniary prospects must show that the injury was of such a nature that it rendered her incapable of performing her pre-accident job or any other form of work whatsoever. Where she is rendered incapable of performing the prior job but is not prevented from doing other work, it was necessary to show that in order to mitigate the loss.

[97]The learned authors of Halsbury’s Laws of England26 state: “ 378. Claimant’s Duty to Mitigate Loss The claimant must take all reasonable steps to mitigate the loss which he has sustained consequent upon the defendant's wrong, whether that wrong be a breach of contract or a tort 1. If he fails to do so, he is not in breach of duty as such, but he cannot claim damages for any such loss which he ought reasonably to have avoided 2, the reason being that such loss is regarded as flowing not from the defendant's wrong but from the claimant's unreasonable behaviour 3. …. A personal injury claimant must mitigate his loss by obtaining proper medical treatment and not acting so as to retard his recovery, and he is not entitled to damages in respect of any pain, suffering, loss of amenities or loss of earnings 8. Furthermore, even if disabled from consequent upon his failing to do so continuing his present employment, he should be prepared to accept reasonable 9… alternative work The law of mitigation may exceptionally operate in favour of the claimant. If, in taking reasonable steps to mitigate, he incurs expenses or further loss, he may 12 or loss 13 from the defendant, even if the resulting recover such expenses damage is greater than it would have been had the mitigating steps not been taken at all.”

[98]Mrs. Giles will not be permitted to recover damages which could have been avoided by acting reasonably. What is reasonable is a question of fact.

[99]The essence of Mrs. Gilkes’ evidence is that her injury has prevented her from performing any work at all and thus she has suffered a loss of future earnings to be calculated a rate of $750.00 per month - being her earnings prior to sustaining the injury. Her oral evidence is however unsupported by the medical evidence. None of the medical reports she tendered stated that she is incapable of working. The medical board found that her mental and other physical attributes are normal and that she could retrain and reenter the job market. While Mrs. Gilkes denies telling the medical board that she was taking a fashion design and fabric painting course, it is clear that the board found that the injury did not create a permanent disability so as to prevent her from engaging in any form of employment whatsoever.

[100]I accept that Mrs. Gilkes is unable to engage in any employment which requires heavy lifting or too much exertion 27. These limitations do not however restrict every form of employment. Mrs. Gilkes has provided no evidence that: (a) she took any steps whatsoever to retrain in another field which does not require heavy lifting or too much exertion ; or (b) she made efforts to engage in alternative employment not requiring heavy lifting or too much exertion. She has provided no medical or other credible evidence of obstacles to her retraining or finding alternative employment.

[101]Based on the evidence before me I find that Mrs. Gilkes’ failure to take any steps to retrain in a different field or seek some form of alternative employment to mitigate her loss without any medical or credible evidence being provided for her failure to do so was unreasonable. Mrs. Gilkes is therefore not entitled to recover any damages for future loss of income which could have been avoided if she had acted reasonably and sought alternative employment.

[102]The difficulty facing the court is how to quantify Mrs. Gilkes’ future loss taking into consideration her failure to mitigate. The task is rendered more difficult by the absence of direct evidence of what Mrs. Gilkes could have earned had she retrained or engaged in some form of alternative employment.

[103]The court can only do the best that it can with the evidence before it. I propose to use the multiplier/multiplicand approach to determine what Mrs. Gilkes would have been entitled to if she was unable to engage in any employment and discount this sum to take into consideration the fact that she was under a duty to mitigate her loss.

[104]I propose to use $9000.00 per annum as the multiplicand based on a monthly income of $750.00. With respect to the multiplier, counsel for Mrs. Gilkes submitted that 11.52 was an appropriate multiplier.

[105]In Martin Alphonso et al v Deodat Ramnath28 the Court of Appeal reduced the multiplier to 12 for a claimant who was 45 years old at the time of the accident with a working life of up to 65 years. Singh JA stated: “Dr. Gonsalves presented this Court, for our guidance, with nine other unreported authorities from the region showing comparable injuries and the multipliers adopted e.g. 32 years old, multiplier 13, 33 years old, multiplier 13, 26 years old, multiplier 9, 30 years old, multiplier 13, 24 years old, multiplier 14, 52 years old, multiplier 5, 40 years old, multiplier 12, 31 years old, multiplier 10, 47 years old, multiplier 9 (but reduced to 6). It is obvious from these authorities that the identification of the true multiplier depended on the individual facts and circumstances of each case and that there was no rigid formula... In determining the multiplier a Court should be mindful that it is assessing general and not special damages. That it is evaluating prospects and that it is a once for all and final assessment. It must take into account the many contingencies, vicissitudes and imponderables of life. It must remember that the plaintiff is getting a lump sum instead of several smaller sums spread over the years and that the award is intended to compensate the plaintiff for the money he would have earned during his normal working life but for the accident.”

[106]In Claudette Francis v Cecilia Marti29 a multiplier of 3 was used for a plaintiff who was 57 years at the time of the trial with a working life up to 65 years. In Aubrey Smith v Calvert Fleming et al 30 a multiplier of 6 years for the freelance work and a multiplier of 2 years for the contract work was used for a claimant who was 57 years old at the time of the accident and planned to work up to 65.

[107]Mrs. Gilkes was approximately 28 years old when the thyroidectomy and emergency tracheostomy were performed, 30 years old when the permanent tracheostomy was performed , 47 at the time of the consent judgment on liability and is now 51 years old. On the premise that Mrs. Gilkes would have had a working life of up to 65 years of age and taking into consideration “the many contingencies, vicissitudes and imponderables of life” I find that a multiplier of 9 would be reasonable.

[108]Using a multiplicand of $9000.00 and a multiplier of 9 Mrs. Gilkes would have been entitled to $81,000.00 if she was unable to engage in any employment in the future as a result of her injury.

[109]In considering the discount that should be applied for Mrs. GiIkes’ duty to mitigate I have taken into consideration all the circumstances including that Mrs. Gilkes cannot engage in employment requiring heavy lifting or too much exertion, her ability to speak and give clear oral evidence at the hearing and the minimum wage in this jurisdiction. The minimum wage for jobs such as an accounts clerk, search clerks, cashiers or a typists is between $600- $800.00 per month 31. If Mrs. Gilkes had retrained and/or sought employment in any of these or a similar field there is a real likelihood that she would have been able to earn at least an income within the range of the minimum wage or slightly less if she was unable to work full time.

[110]In all the circumstances I find that a discount of 75% is reasonable to take into account that Mrs. Gilkes failed to mitigate her loss by making any effort to retrain or find any kind of alternative employment whatsoever. I therefore award Mrs. Gilkes $20,250.00 for loss of future earnings.

[111]In summary, Mrs. Gilkes is awarded: (1) Special Damages (a) Loss of income for two (2) years $18, 000.00 (b) Medical and Related Expense $ 21,749.29 Total Special Damages $ 39,749.29 (2) General Damages (a) Pain and suffering $ 60,000.00 (b) Loss of amenities $ 30,000.00 (c) Future Loss of Earnings $ 20,250.00 $110,250.00 Interest and Costs

[112]Interest is awarded on special damages of $39,749.29 at a rate of 2 ½ % from 6th August 1993 to 27 November 2012.

[113]Interest is awarded on the $90,000.00 awarded for pain and suffering and loss of amenities at a rate of 2 ½ % from the date of service of the claim to 27th November 2012.

[114]The defendants shall pay Mrs. Gilkes prescribed costs.

Fidela Corbin Lincoln

Master

THE EASTERN CARIBBEAN SUPREME COURT SAINT VINCENT AND THE GRENADINES IN THE HIGH COURT OF JUSTICE Claim No. SVGHCV1996/0288 Between: CLAIRE OLIVER GILKES Claimant And ST. CLAIR THOMAS st Defendant JOSEPH RAJKUMAR nd Defendant Before: Master Fidela Corbin Lincoln Appearances: Grahame Bollers with Richard Williams for the Claimant Bertram Commissiong QC for the 1 st defendant _________________________ 2016: December, 7 ________________________ Assessment of Damages – Negligent Medical Care – Permanent Tracheostomy – Loss of Income – Loss of Housekeeping Ability – Future Loss of Income

[1]CORBIN LINCOLN M: Mrs. Claire Gilkes commenced this claim against Dr. St. Clair Thomas and Dr. Joseph Rajkumar for damages for personal injuries sustained as a result of their alleged negligent medical treatment. Background

[2]Mrs. Gilkes visited Dr. Thomas’ office in August 1990 complaining of a sore throat and was treated for tonsillitis. During the course of the next three (3) years she visited Dr. Thomas’ office on a number of occasions for soreness of her throat. At the time she was suffering from a thyroid condition and had a goiter on her neck. Dr. Thomas repeatedly told her that she should consider undergoing surgery to remove the goiter but she never bothered because it was never a source of bother to her.

[3]In or around June 1993 she went to Dr. Thomas’ office accompanied by her husband because she was suffering from a sore throat and hoarseness. Dr. Thomas again raised the issue of having the goiter surgically removed and informed them that he had performed the procedure on numerous occasions both in St. Vincent and Barbados and that it was a simple operation. He informed her that she would loose her voice for a short time after the operation but would regain it fully.

[4]At no time during any of the consultations did Dr. Thomas tell her: (1) that there was a risk of permanent damage to the nerves surrounding her voice box and if that happened her voice box could be paralysed; (2) of any other risks associated with thyroid surgery or advise her of alterative forms of treatment that were available; or (3) that there was a risk of vocal paralysis which could result in difficulty breathing and if that happened she would possibly have to have a tracheotomy.

[5]Mrs. Gilkes contends that if Dr. Thomas had provided her with any information regarding the risks associated with the operation she would not have considered the operation. She decided to proceed with the operation and was admitted to hospital on 27 th July 1993

[6]In the evening after the surgery she started wheezing and vomiting and felt like she could not breathe. On 30 th July 1993 Dr. Thomas performed an emergency tracheostomy whereby she was only able to breathe through a tube. She was discharged from the hospital on 6 th August 1993 with a hole in her neck which she had to have dressed at a clinic.

[7]The discharge certificate shows that she was admitted to the hospital under the care of Dr. Thomas and that both a subtotal thyroidectomy and a tracheotomy were performed. On 12 th August 1993 she went back to the hospital to have the hole sutured.

[8]Mrs. Gilkes continued to be treated by Dr. Thomas as an out- patient. During her visits to him between 9 th August 1993 and 14 th September 1993 she complained that she was having headaches, snored excessively, had shortness of breathe and difficulty breathing. On 18 th August 1993 Dr. Thomas removed the sutures at the hospital. She visited him again at his office on 30 th August 1993 complaining about snoring, headaches and shortness of breathe. He told her it was a cold.

[9]She later met Dr. Elsworth Charles while he was collecting his child from Vinsave, the school at which she was employed, and discussed her medical problems with him. She went to his office and he gave her asthma medication and an inhaler. On the following Monday morning while at work she was experiencing difficulty breathing and Dr. Charles took her to the hospital to have an x-ray. He consulted with Dr. Wilfred Layne who advised him that she was suffering from laryngeal nerve injury following the thyroidectomy. Dr. Charles referred her to Dr. Dennis Bailey, an ENT specialist in Barbados. Between December 1994 and March 1995 she had to undergo several procedures to determine the extent of the damage done and to remedy the damage including a diagnostic fiberoptic laryngoscopy in December 1994. On 8 th February 1995 Dr. Dr. Bailey operated on her but the operation was unsuccessful. Consequently, she was forced to consider having a permanent tracheotomy which Dr. Bailey performed on 21 st March 1995. The result of the permanent tracheotomy is that she has to breathe through a tube in the throat area.

[10]Dr. Bailey informed her that it was all a result of the operation which was performed without her informed consent.

[11]Mrs. Gilkes commenced this claim against Dr. Thomas and Dr. Rajkumar. On 26 th November 2012 Mrs. Gilkes obtained a consent judgment against Dr. Thomas. The judgment states: “This action having on the 26 th November 2012 been called on for trial before……at the High Court of Justice… AND WHEREAS the Claimant instituted these proceedings against the Defendant for failure to inform the Claimant of the risks associated with the surgical procedure and failing to inform her that the operation would be conducted by the Added Defendant. AND WHEREAS the claimant also instituted these proceedings against the Added defendant for (a) failing to inform the Claimant that he would be performing the surgical procedure and obtaining her consent to the operation ; (b) failure to inform the Claimant of the significant risks associated with the medical procedure and (c) negligence. AND THE CLAIMANT has suffered injury as set out in the Claim Form the risk of which she should have been informed AND UPON hearing counsel for the Defendant. Added Defendant and counsel for the clamant; IT IS BY CONSENT ADJUDGED as follows:

[12]On 27 th November 2012 Mrs. Gilkes obtained judgment against Dr. Rajkumar in an amount to be decided by the court.

[13]The issue before the court is the quantum of damages that should be awarded to Mrs. Gilkes. Preliminary Issue

[14]Mrs. Gilkes filed witness statements and submissions prior to the date fixed for the assessment of damages. The defendants failed to file witness statements or submissions prior to the date fixed for the assessment.

[15]On the date fixed for the assessment of damages Queen’s Counsel for Dr. Thomas stated that he has been instructed that Dr. Thomas never instructed Ms. Mira Commission , counsel with conduct of the case, to enter into a consent judgment and the consent judgment was entered in his absence and without his consent. Further, Dr. Thomas instructs that he only recently became aware of the consent judgment and intends to take steps to have the consent judgment set aside. Queen’s Counsel also sought an extension of time to file witness statements and submissions.

[16]The 1 st defendant was granted an extension of 14 days to file affidavits and submissions and the matter was adjourned. The 1 st defendant filed an affidavit but no submissions. At the adjourned hearing the court was not provided with evidence of the filing of any proceedings and, more significantly, there was no application for or an order staying the proceedings. In the circumstance the hearing proceeded.

[17]At the end of the hearing the parties were given 21 days to file any further submissions. Neither party filed further submissions within the time fixed by the court. SPECIAL DAMAGES

[18]It is well established that generally DAMAGES must be pleaded and proved.

[19]Mrs. Gilkes pleaded loss of income from August 1993 to the date of filing of the claim in the sum of $60,775.00 and continuing thereafter at a rate of $425.00 per month. Her evidence however is that she was employed at as a teacher at Vinsave and earned a monthly salary of $750.00. There was no explanation provided for the discrepancy between the quantum pleaded and the evidence given. Under cross examination Mrs. Gilkes confirmed that she earned $750.00 per month from her job at Vinsave. I accept that Mrs. Gilkes earned $750.00 monthly from her job at Vinsave.

[20]Mrs. Gilkes states that she is seeking loss of income from August 1993 “to date” – presumably to the date of filing of the witness statement – in the sum of $204,750.00 and continuing thereafter at a rate of $750.00. Her evidence with respect to date when her loss of income commenced is however contradictory. She states: ” “as a result of what happened to me I was obviously unable to speak to my pupils and I had to resign from my job because I had no energy and suffered shortness of breath and felt tired all of the time and in fact I would fall asleep in class.”

[21][82] in Darel Christopher v Benedicta Samuels dba Samuel Richardson & Co

[22]In the circumstance the claimant has failed to provide clear and credible evidence of when she ceased employment and ceased earning an income.

[23]With respect to the period for which loss of income is claimed, Mrs. Gilkes is claiming loss of income from August 1993 and continuing. Under cross examination she stated that she has not looked for any other form of employment since 1993 because of her breathing problems.

[24]Under cross examination Mrs. Gilkes admitted that neither Dr. Charles nor Dr. Hughes Dougan told her that she could not work. Under further cross examination, she admitted that after returning from Barbados she was looking for disability benefits from the National Insurance Scheme and went to the medical board to be examined as to whether she was physically and mentally fit to return to work.

[25]Dr. Thomas exhibited a letter from the director of the National Insurance Scheme to the Permanent Secretary in the Ministry of Health, dated 12 th May 1995, which states : “Mrs. Claire Oliver Gilkes has applied to the National Insurance Scheme for payment of Invalidity benefit on the recommendation of Dr. E.H Charles. Grateful if this case be referred to the medical board for examination. We would appreciate a definite statement on the patient’s ability to engage in any form of gainful employment.”

[26]Mrs. Gilkes was referred to the report of the medical board dated 1 st June 1995, which states: ” A medical board was convened on the 31 st May to assess the ability of Mrs. Claire Gilkes to engage in any form of gainful employment. Mrs. Gilkes has a permanent tracheostomy and as such is unable to continue in her former employ as a pre-school teacher. However, her mental and other physical attributes are quite normal and she has already shown an interest in retraining herself for the job market (she has started a fashion design and fabric painting course at home). The board recommends that if possible, some financial support be given to Mrs. Gilkes for the next two years, during which time she will continue her retraining exercise. At the end of this period she should be able to return to the productive labour force” “

[27]Mrs. Gilkes stated that she was aware that the board gave a report and was also aware of the content of the report. However, she did not return to work and did not make a second attempt to get an assessment from the board. She denied telling the board that she was doing a fashion painting course.

[28]The medical board found that while Mrs. Gilkes could not continue in her employment as a school teacher her mental and other physical attributes are normal and that upon retraining she could reenter the job market. There is therefore no medical evidence that Mrs. Gilkes was unable to work at all since August 1993 as alleged.

[29]McGregor on Damages, ,

[30]It is clear that for some period Mrs. Gilkes would have lost income as a result of her injuries. There is no clear evidence of the exact period from which she started to loose income. There is no medical evidence which states that Mrs. Gilkes could not work at all after August 1993 to support a claim for a total loss of income from August 1993 and continuing to the date of filing of the claim in 1999. In the absence of any medical evidence that Mrs. Gilkes was unable to work at all or any evidence of real and substantial obstacles to her retraining and reentering the labour market the defendants in my view should not be held liable for Mrs. Gilkes’ choice not to take any steps whatsoever to return to some form of employment.

[31]In determining what is a reasonable period for which loss of income should be awarded, I have taken into consideration all the circumstances and, in particular, the fact that there is inconsistent evidence with respect to the date when Mrs. Gilkes’ loss of income commenced and the recommendation of the medical board that Mrs. Gilkes be given financial assistance for two (2) years during which time she could retrain and return to the labour market.

[32]I find that the sum of $18,000.00 being loss of income for a period of two (2) years at a rate of $750.00 per month is reasonable compensation for Mrs. Gilkes. Loss of Domestic Care

[33]Mrs. Gilkes pleaded a loss of $52,800.00 for “domestic care” at a rate of $400.00 per month from July 1993 “to date” – presumably the date of filing of the claim. In her witness statement however she claims the sum of $700.00 per month for domestic care from July 1993 “to date” i.e presumably to 3 rd May 2016 when the witness statement was filed. She states that she is aware that the cost of employing domestic assistance to perform domestic chores would amount to $700.00.

[34]There was no evidence led to address the difference between the pleaded cost and the evidence given with respect to the cost of monthly domestic care.

[35]Mrs. Gilkes’ evidence is that since her final operation in 1995 her life has not been the same. She used to be able to perform household duties like cooking, cleaning, washing and other household chores. All her chores in and around the house such as cooking , cleaning, and sweeping are now performed by her husband and brother. The evidence of Mr. Benson Gilkes, Mrs. Gilkes’ husband, is that prior to the operation Mrs. Gilkes ” “was a good home-maker; she is no longer [sic] to do anything around the home. The Domestic chores around the house are now performed by myself and the claimant’s brother. The cost of providing these domestic services is $700.00 per month .”

[37]In further cross examination Mrs. Gillkes admitted that she succeeds in doing her household chores, including sweeping , but she does so with pain. She admitted that she cooks, cleans and does laundry with a washing machine. Thus while both Mr. and Mrs. Gilkes testified that Mrs. Gilkes is no longer able to perform household chores and that all her chores in and around the house are performed by Mr. Gilkes and Mrs. Gilkes’ brother, Mrs. Gilkes’ evidence under cross examination contradicted this. In the circumstance I find that there is no credible evidence that Mrs. Gilkes lost her ability to perform household chores as a result of the injury and consequently there is no evidence to support the claim for compensation for the cost of “domestic care”.

[38]In any event, while this claim is made under the heading of ‘domestic care’ it appears to me from the evidence that this is in essence a claim for loss of housekeeping ability. It is well established that an award of damages can be made for loss of housekeeping ability. Halsbury’s Laws of England

[39]In Daly v General Steam Navigation

[40]With respect to a claim for future loss of housekeeping ability, , the Court held: “…the proper measure of damages was the estimated cost of employing domestic help for eight hours a week during the plaintiff’s life expectancy, even though she might not use the award to employ domestic help and might struggle to do the housekeeping herself and use the award for another purpose, for the award so assessed represented the court’s view of reasonable compensation for the future loss of housekeeping ability.” .”

[41]Based on the evidence before the court, I am not satisfied on a balance of probabilities that Mrs. Gilkes lost her ability to perform household chores as a result of the injury sustained, remains unable to perform any household chores and that Mr. Gilkes and Mrs. Gilkes brother have been performing these chores as alleged. Mrs. Gilkes states that she performs her household chores albeit with pain. In any event, there is no evidence of any actual pre-trial costs incurred to engage household help and thus any pre-trial loss falls to be assessed as part of general damages for pain, suffering and loss of amenities. This will be taken into consideration in the award made for pain and suffering and loss of amenities.

[42]I therefore make no award for the claim for “domestic care’, pre-trial or future loss of housekeeping ability. Lawn Care

[43]The statement of claim avers a loss of $11,440.00 for lawn care at a rate of $400.00 per month from July 1993 “to date”.

[44]Mrs. Gilkes’ evidence is that prior to the operation ” she was tasked with the job of cutting the lawn with a weed eater and or lawn mower and maintaining the yard” ”

[46]Under cross examination in relation to the claim for lawn care Mrs. Gilkes stated: My brother is 58. Yes, my brother lives with me. Yes, he is part of the household. When I gave the witness statement in May 2016 I was living in Prospect. I am living on the road going down the hill to Salt Pond. I moved to prospect about 7-8 years ago. The size of my the land that I live on is about 12,000 sq ft. I don’t know how much the house takes up. I can’t give you the area of my lawn Yes I have enquired about the cost of mowing the lawn. Yes, I pay my brother Alexander Oliver $400.00 a month to mow the lawn where he lives. The lawn is mowed twice a month No I do not pay $200 for every time the lawn is mowed. No, I do not understand that it is my duty to cut my losses as far as I reasonably can.

[47]The claim for lawn care appears to me to capable of being considered within the scope of a claim for loss of housekeeping ability.

[48]In essence, Mrs. Gilkes’ evidence is that while in full time employment as a teacher she did all household chores and gardening and was also tasked with mowing the lawn. In the absence of any evidence other than oral evidence I am not satisfied about the veracity of the claim that since July 1993 when Mrs. Gilkes was admitted to hospital she has paid her brother, a member of the household, $400.00 every month to mow the lawn. My serious reservations about accepting this evidence stems not only from seeing and hearing Mr. and Mrs. Gilkes give evidence but also from the nature and quality of the evidence adduced with respect to other elements of the claim. This includes but is not limited to : (a) Mrs. Gilkes’ evidence that she ceased employment in August 1993 which could not be true and; (b) Mr. and Mrs. Gilkes’ evidence in chief that she is unable to perform household chores and thus those chores are performed by Mr. Gilkes and Mr. Oliver which was admitted not to be accurate under cross examination.

[49]In the circumstance I am not satisfied on a balance of probabilities that Mrs. Gilkes incurred or will in the future incur the cost of $400.00 monthly for lawn care. I will take into consideration the loss of ability to mow the lawn in the award for pain and suffering and loss of amenities. Medical and Related Expenses

[50]Mrs. Gilkes’ evidence is that she incurred costs of $35,806.83 for medical and related expenses and that the receipts evidencing this expenditure are exhibited. A careful scrutiny of the receipts discloses that several claimed expenses are unsupported by the receipts. This was conceded by counsel for the Mrs. Gilkes.

[51]The receipts were not marked, numbered or in any chronology order thus creating great difficulty identifying which receipts supported the costs claimed. The claimant and her counsel were therefore required to identify the receipt that supported each claim during the hearing. The schedule of expenses provided by Mrs. Gilkes is as follows: DATE PARTICULARS USD BDS EC$ COMMENT

[52]With respect to the expenses listed from numbers 1 to 15 of the schedule, no receipts were provided. However, in addition to the oral evidence of Mrs. Gilkes that these expenses were incurred there are medical reports which confirm that Mrs. Gilkes was referred to Dr. Bailey in Barbados and received medical treatment there. The defendants did not challenge these costs. I therefore accept on a balance of probabilities that these costs were incurred and do not find the quantum claimed unreasonable. Applying the approach of the court in Grant v Motilal Moonan Ltd. and Another

[53]There is no evidence of how the claim for Fed Ex charges, listed at numbers 16, 30 and 38 of the schedule relate to or flow from the injuries sustained. I therefore do not award these sums.

[54]The claims listed at numbers 17,18,19, 29,40,41, 42,44 and 58 relate to laboratory fees incurred at various laboratories. There is however no evidence of what laboratory tests were conducted in some cases and where some reference is made to the nature of the test there is no evidence of how they relate to or flow from the injury sustained. I therefore do not award these sums.

[55]I am however satisfied that the claims for $12.00 for bronclair listed at number 31 of the schedule, laboratory fee of $765.00 for a CT scan of the neck listed at number 57 of the schedule and the claim for $80.00 for a chest x-ray listed at number 45 of the schedule likely bear some connection to the injury and I therefore award these sums.

[56]With respect to the items listed between numbers 20 to 63 related to travel expenses to and costs incurred in Barbados after 1995, Mrs. Gilkes’ evidence is that between December 1994 and March 1995 she had to undergo several procedures in Barbados to determine the extent of the damages done to her and to remedy the damage including a fiberoptic laryngoscopy performed in December 1994.

[57]Notwithstanding the absence of pleadings or evidence that Mrs. Gilkes was required to travel out of the jurisdiction for medical treatment after 1995 there are receipts evidencing travel to Barbados and expenses incurred there after 1995. At the hearing it was conceded that these claimed expenses were not pleaded or supported by the evidence. In the circumstance I am unable to award special damages for travel to and medical treatment in Barbados after 1995.

[58]Mrs. Gilkes is therefore awarded a total of $ 21,749.29 for medical and related expenses. GENERAL DAMAGES Principles for Assessing General Damages

4.Feb-April 1994 Medication (Barbados)

67.44

[59]The legal principles governing the assessment of general damages are well established. The main factors to be taken into account are: the nature and extent of the injuries sustained; the nature and gravity of the resulting physical disability; the pain and suffering endured; the loss of amenities suffered; and the extent to which the claimant’s pecuniary prospects have been affected (1) Nature and Extent of Injuries Sustained

[60]A medial report dated 25 th October 1995 by Dr. Charles states that he examined Mrs. Gilkes on 19 th November 1994. He gave her a Berotec Inhaler and Berotec Liquid for use over the weekend. When he went to her school on Monday, 21 st November 1994 she was experiencing stridor and using all necessary muscles of respiration. He took her to Kingstown General Hospital where a chest x-ray and lateral x-ray were performed. The chest x-ray showed increased bronchial markings while the lateral x-ray showed a normal caliber trachea. A consultation was obtained that same morning from Dr. Wilfred Layne who diagnosed Mrs. Gilkes with “damage to the recurrent laryngeal nerve at prior surgery.” .” He states that Mrs. Gilkes had a partial thyroidectomy on 29 th July 1993 and that her surgery was complicated by “Chronic Laryngeal Obstruction due to Bilateral Recurrent Laryngeal Nerve Damage.” .” He referred her to Dr. Dennis Bailey FSRC (Edin), Consultant in Ear Nose and Throat /Head and Neck Surgery in Barbados.

[61]Under cross examination Mrs. Gilkes states that she is aware that Dr. Charles is a gynecologist and that she knows the difference between a gynecologist and an ENT specialist.

[62]A letter from Dr. Wilfred Layne to Dr. Charles dated 10 th March 2016 states that he examined Mrs. Gilkes on 21 st November 1994. The letter states: “Her history of hoarseness and difficulty breathing followed Total Thyroidectomy in August 1993 performed by Mr. St. Clair Thomas ENT Surgeon. Her current complaints of vocal tiredness, poor sleep and general fatigue have improved with the medically imposed rest from her Pre-School duties. However, the underlying problems of vocal cord paralysis due to laryngeal nerve injury following her thyroidectomy is unresolved. She needs further E.N.T evaluation from an independent consultant to assess if any useful intervention is possible.”

[63]Dr. Bailey’s report, dated 13 th October 1995, states that he first saw Mrs. Gilkes on 6 th December 1994 and she complained that she had developed acute respiratory obstruction following thyroid surgery on 29 th July 1993. He states that this was apparently due to surgical trauma to the recurrent laryngeal nerves of her larynx (the motor nerves to her larynx), a well recognized complication of Thyroid surgery. A laryngofissure tracheostomy procedure was attempted on 8 th February 1995 but acute respiratory difficulty recurred on 21 st March after decannulation. A tracheostomy tube had to be reinserted to overcome the acute respiratory difficulty which ensued. A final decision was made by Mr. and Mrs. Gilkes following further medial consultation with him to abandon all further attempts at corrective laryngeal surgery and persist with the tracheostomy tube as a permanent solution. (2) Nature And Gravity Of The Resulting Physical Disability

[64]Dr. Bailey’s report states that a permanent tracheostomy preserves a patient’s life by guaranteeing adequate respiration via a tube inserted in the neck. However, it imposes certain obvious limitations on a patient’s life. He states that ” “there can be no swimming, no lifting of heavy weights, and limited exertion; and the tracheostomy tube requires constant hygienic lifelong care.”

[65]He states that Mrs. Gilkes will have to live the rest of her life with a permanent tracheostomy tube and all the limitations on her lifestyle it imposes.

[66]A report by Dr. Hughes Dougan, dated 1 st October 2015, states that his evaluation on 24 th September 2015 shows a permanent tracheostomy tube with a flap valve. In his opinion her condition is irreversible and will not improve in the future. (3) Pain, Suffering and Loss of Amenities

[67]Mrs. Gilkes was admitted to the hospital on 27 th July 1993 for a thyroidectomy. An emergency tracheotomy had to be performed on 30 th July 1993. She was discharged on 6 th August 1993 with a hole in her deck. The hole was sutured on 12 th August 1993. After her discharge she began suffering from headaches, excessive snoring and shortness of breath. She was referred to Dr. Bailey in Barbados . On 8 th February 1995 Mrs. Gilkes had to undergo a laryngofissure tracheostomy but suffered acute respiratory difficulty which resulted in a tracheostomy tube being inserted.

[68]Mrs. Gilkes states that since her final operation in 1995 her life has never been the same. She still suffers with insomnia and persistent pain and discomfort day and night from the tube in her neck. Her tracheotomy has caused her to withdraw from society and lack self esteem and self worth and she is conscious that she is different from everyone else who has the ability to breathe through their nose. Her condition has caused her to loose interest in anything that may make her happy and she feels at times that she is no use to anyone. She is constantly in a state of depression and feels like her life has been taken away from her.

[69]Before her life changed she enjoyed simple pleasures like fishing, cycling, sewing, painting, playing table tennis, swimming and walking. She was able to perform household duties like cooking, cleaning and washing. She can no longer enjoy any of these things and her chores around the house have to be performed by her husband and brother.

[70]She once enjoyed a healthy sexual relationship with her husband but she no longer enjoys sex and if she does has sex it cannot be prolonged because she is unable to breathe properly and may suffocate. This has put a strain on her marriage as she is not able to sexually satisfy her husband like any wife should. Mrs. Gilkes’ evidence in this regard was supported by Mr. Gilkes who states that they do not have a healthy sexual relationship. Under cross examination Mr. Gilkes explained that a healthy sexual relationship is when you have sex and it lasts for a long time. It is not a healthy sexual relationship if sex does not last for a long time. He confirmed that he and Mrs. Gilkes still have sexual intercourse but it does not last a long time.

[71]All of the above has caused her to loose interest in anything that may make her happy and she does not socialise.

[72]Under cross examination Mrs. Gilkes states that when she saw the medial board in May 1995 and Dr. Dougan in 2015 she did not tell them of any of the matters referred to in paragraphs 26 to 28 above.

[73]Mrs. Gilkes’ evidence is that and she and her husband were considering children but she was advised by her doctor that as a result of her condition “ “she cannot have children “.

[74]This aspect of the claim will be addressed under the heading of future loss of earnings. Quantification of General Damages for Pain and Suffering and Loss of Amenities

115.25 No receipt

[75]Counsel for Mrs. Gilkes cites the cases of Travia Douglas v Shivougn Warde et al

[76]In 1997 the Court of appeal awarded the claimant in Fenton Auguste v Francis Neptune

[77]In Cletus Dolor v Alcide Antoine et al

[78]While the nature and extent of the injuries and the resulting disability of the claimants in the above cases and the case of Travia Douglas were more severe than that of Mrs. Gilkes I propose to use the awards made in those cases as a benchmark with due regard being given to their antiquity and the effect of inflation on the awards.

[79]In Sheldon Jules v Brent Williams

[80]The injuries and resulting disability suffered by he claimant in Sheldon Jules are also not the same as Mrs. Gilkes. I however find the award in that case a useful tool since the claimant suffered injuries to the facial area which affected his appearance.

[81]The court exercises its discretion in determining the quantum of damages that would be fair and reasonable compensation in all the circumstances. In determining how to exercise its discretion on the question of general damages for personal injuries it is well established that: ” In the context of damages for personal injuries, there are certain principles which apply and there is a discretion which needs to be exercised. In the case of pain, suffering and loss of amenity, that discretion could be wholly subjective and hence unpredictable, or it could be precedent based ; that is to say; the trial judge, having considered all of the evidence led before him, would take into account other awards within the jurisdiction and further a field. Awards of similar injuries would be clearly very helpful in relating the claimant’s injuries on a comparative scale. This is not a precise science, leaving much room for the trial judge’s discretion”.

20.00 Receipt provided.

[83]It is clear that Mrs. Gilkes suffered and continues to suffer pain and discomfort. She underwent several surgical procedures following the thyroidectomy culminating in a permanent tracheostomy in 1995. She still suffers with insomnia and persistent pain and discomfort day and night from the tube in her neck. She performs her household chores but experiences pain while doing so. The permanent tracheostomy will require lifelong hygienic care and will continue to cause discomfort for the foreseeable future. I find that $60,000.00 is reasonable compensation for pain and suffering.

[84]With respect to loss of amenities the medical report by Dr. Bailey states that Mrs. Gilkes will be unable to swim or lift heavy weights and must limit her exertion.

[85]Mrs. Gilkes’ evidence is that she used to enjoy fishing, cycling, sewing, painting, playing table tennis, swimming and walking and that since her injury she has been unable to enjoy any of these activities or perform duties like cooking, cleaning, washing and mowing the lawn. Her chores around the house have to be performed by her husband and brother.

[86]As discussed previously,

[87]Both Mr. and Mrs. Gilkes’ evidence was that they were informed by a doctor that Mrs. Gilkes cannot have children as a result of her tracheostomy. Under cross examination Mrs. Gilkes stated that it is not that she cannot have children but was advised that she should not. There is no medical evidence to support the assertion by Mr. and Mrs. Gilkes that Mrs. Gilkes is unable to and ought not to have children as a result of her condition. In the absence of medial evidence I am unable to accept this evidence.

[88]Mrs. Gilkes evidence was that the permanent tracheostomy has caused her to “withdraw from society” and lack self esteem. She is constantly in a state of depression and feels like her life has been taken away from her. Mr. Gilkes’ evidence was also that Mrs. Gilkes no longer socialises. Under cross examination he stated that when he says that she no longer socializes he means that she no longer goes to parties. She however goes to church and friends and family come to visit her. He is not sure whether she goes to visit friends and family.

[89]I note that while Mrs. Gilkes gives extensive evidence regarding her loss of amenities she failed to mention any of these issues to the medical board or to Dr. Dougan during her recent visit in 2015. Mrs. Gilkes and provided no explanation for her failure to do so.

[90]Taking all the evidence into consideration I find that Mrs. Gilkes’ ability to enjoy activities she once enjoyed has been affected. Mrs. Gilkes is able to and does perform household chores, but she experiences pain in the process. She is no longer able to mow the lawn. I accept that the permanent tracheostomy has negatively impacted her enjoyment of sexual relations with her husband. While there is no medical evidence that Mrs. Gilkes suffers from depression as a result of her condition, I accept that her happiness and self esteem have been negatively affected by her condition. The medical evidence is that her condition is irreversible and will not improve in the future. I find that $30,000 is reasonable compensation for loss of amenities. Future Loss of Earnings/Impact on Pecuniary Prospects

43.20 No Receipt

[91]Mrs. Gilkes seeks damages for future loss of earnings. Damages for future loss of earnings is the amount which a claimant has been prevented by the injury from earning in the future.

420.00

[93]Counsel for Mrs. Gilkes submits that using a multiplier of 11.52 and a multiplicand of $21,600 per annum ($1,800 x12) an award of $248,832.00 should be made for future loss of earnings. Alternatively, using the same multiplier and a multiplicand of $9000.00 per annum ($750 x 12) Mrs. Gilkes should be awarded $103,680.00.

[94]I do not accept Mrs. Gilkes’ uncorroborated evidence that she would have earned a monthly net income of $1800.00 if she had opened the intended preschool without any basis being provided for this estimate. I find this evidence purely speculative.

[95]I accept that, as stated by the medical board, Mrs. Gilkes is unable to continue to work as a teacher and consequently I accept that she would be unable to earn the $750.00 which she earned as a teacher prior to sustaining the injury.

[96]In Parahoo v S.M. Jaleel Company Limited Hamel-Smith JA noted that a claimant who claims loss of pecuniary prospects must show that the injury was of such a nature that it rendered her incapable of performing her pre-accident job or any other form of work whatsoever. Where she is rendered incapable of performing the prior job but is not prevented from doing other work, it was necessary to show that in order to mitigate the loss.

[97]The learned authors of Halsbury’s Laws of England

[98]Mrs. Giles will not be permitted to recover damages which could have been avoided by acting reasonably. What is reasonable is a question of fact.

[99]The essence of Mrs. Gilkes’ evidence is that her injury has prevented her from performing any work at all and thus she has suffered a loss of future earnings to be calculated a rate of $750.00 per month – being her earnings prior to sustaining the injury. Her oral evidence is however unsupported by the medical evidence. None of the medical reports she tendered stated that she is incapable of working. The medical board found that her mental and other physical attributes are normal and that she could retrain and reenter the job market. While Mrs. Gilkes denies telling the medical board that she was taking a fashion design and fabric painting course, it is clear that the board found that the injury did not create a permanent disability so as to prevent her from engaging in any form of employment whatsoever.

[100]I accept that Mrs. Gilkes is unable to engage in any employment which requires heavy lifting or too much exertion

[101]Based on the evidence before me I find that Mrs. Gilkes’ failure to take any steps to retrain in a different field or seek some form of alternative employment to mitigate her loss without any medical or credible evidence being provided for her failure to do so was unreasonable. Mrs. Gilkes is therefore not entitled to recover any damages for future loss of income which could have been avoided if she had acted reasonably and sought alternative employment.

[102]The difficulty facing the court is how to quantify Mrs. Gilkes’ future loss taking into consideration her failure to mitigate. . The task is rendered more difficult by the absence of direct evidence of what Mrs. Gilkes could have earned had she retrained or engaged in some form of alternative employment.

[103]The court can only do the best that it can with the evidence before it. I propose to use the multiplier/multiplicand approach to determine what Mrs. Gilkes would have been entitled to if she was unable to engage in any employment and discount this sum to take into consideration the fact that she was under a duty to mitigate her loss.

[104]I propose to use $9000.00 per annum as the multiplicand based on a monthly income of $750.00. With respect to the multiplier, counsel for Mrs. Gilkes submitted that 11.52 was an appropriate multiplier.

[105]In Martin Alphonso et al v Deodat Ramnath

[106]In Claudette Francis v Cecilia Marti

[107]Mrs. Gilkes was approximately 28 years old when the thyroidectomy and emergency tracheostomy were performed, 30 years old when the permanent tracheostomy was performed , 47 at the time of the consent judgment on liability and is now 51 years old. On the premise that Mrs. Gilkes would have had a working life of up to 65 years of age and taking into consideration ” “the many contingencies, vicissitudes and imponderables of life” I find that a multiplier of 9 would be reasonable.

[108]Using a multiplicand of $9000.00 and a multiplier of 9 Mrs. Gilkes would have been entitled to $81,000.00 if she was unable to engage in any employment in the future as a result of her injury.

[109]In considering the discount that should be applied for Mrs. GiIkes’ duty to mitigate I have taken into consideration all the circumstances including that Mrs. Gilkes cannot engage in employment requiring heavy lifting or too much exertion, her ability to speak and give clear oral evidence at the hearing and the minimum wage in this jurisdiction. The minimum wage for jobs such as an accounts clerk, search clerks, cashiers or a typists is between $600-$800.00 per month

[110]In all the circumstances I find that a discount of 75% is reasonable to take into account that Mrs. Gilkes failed to mitigate her loss by making any effort to retrain or find any kind of alternative employment whatsoever. I therefore award Mrs. Gilkes $20,250.00 for loss of future earnings.

[111]In summary, Mrs. Gilkes is awarded: (1) Special Damages (a) Loss of income for two (2) years $18, 000.00 (b) Medical and Related Expense $ 21,749.29 Total Special Damages $ 39,749.29 (2) General Damages (a) Pain and suffering $ 60,000.00 (b) Loss of amenities $ 30,000.00 (c) Future Loss of Earnings $ 20,250.00 $110,250.00 Interest and Costs

[112]Interest is awarded on special damages of $39,749.29 at a rate of 2 ½ % from 6 th August 1993 to 27 November 2012.

[113]Interest is awarded on the $90,000.00 awarded for pain and suffering and loss of amenities at a rate of 2 ½ % from the date of service of the claim to 27 th November 2012.

[114]The defendants shall pay Mrs. Gilkes prescribed costs. Fidela Corbin Lincoln Master

30.00

40.50 Receipt provided

[1]She signed a consent form which stated that she was consenting to undergo a thyroidectomy. She was assured that Dr. Thomas would perform the operation. The operation was performed on 29 th July 1993 but Dr. Thomas later informed her that the operation was in fact performed by Dr. Rajkumar with Dr. Thomas acting as his assistant.

1.Judgment is hereby entered for the Claimant against the Defendant for the personal injury resulting from the Defendant’s failure to fully inform the Claimant of the risks associated with the surgical procedure and failing to inform her that the operation would be conducted by the Added Defendant and for payment by the Defendant to the Claimant of an amount to be decided by the Court and prescribed costs to be assessed. “

[2]Loss of Income

[3][21] She does not state the date she resigned from her job and stopped receiving an income but I infer that she is asserting that she resigned and ceased earning an income in August 1993 since this is the period from which loss of income is claimed. Mrs. Gilkes’ claim to have resigned from her job since August 1993 is contradicted by other evidence. Specifically: (1) Mrs. Gilkes states that she was being treated by Dr. Thomas as an out patient and during her visits to him privately between 9 th August 1993 and 14 th September 1993 she complained of various symptoms including headaches, shortness of breathe and difficulty breathing. She states that “one day” she met Dr. Elsworth Charles when he was collecting his child from Vinsave and she discussed her medical problems with him , especially her breathing difficulties. She states ” He told me to come to his office and I did and he gave me asthma medication and an inhaler to take. On the Monday morning at work I was experiencing difficulty breathing and Dr. Charles took me to the Hospital to have an x-ray taken.” (2) Mrs. Gilkes tendered a medical report from Dr. Charles. In the report Dr. Charles states that he first became aware of Mrs. Gilkes’ problem of breathing difficulties when he talked to her at her work place (Vinsave) in November 1994 . He suggested that she should come to his office the following Saturday for examination and she was examined on 19 th November 1994. If Dr. Charles met Mrs. Gilkes at her workplace in November 1994 it follows that she was still employed at least up to November 1994 – more than one year after the time that she asserts or infers that she ceased employment and ceased earning an income . (3) Under cross examination Mrs. Gilkes stated that she could not recall the exact dates she travelled to Barbados but knows that she travelled there for the first time in 1994 and returned again in 1995 for an operation. She states that she did return to work at Vinsave after she “came back from Barbados”. It is unclear whether it was after her return from Barbados in 1994 or her return in 1995 that she did not return to work. What is clear is that if she only stooped working after returning from Barbados in 1994 or 1995 her evidence that she resigned and ceased earning an income in August 1993 could not be true.

[4]states that the onus of proof on the issue of mitigation is on the defendant, and approval is given at page 191 to the statement of Sir John Donaldson MR in Sotiros Shipping Inc v Sameiet Solholt

[5], where he said: ” A plaintiff is a under no duty to mitigate his loss, despite the habitual use by the lawyers of the phrase ‘duty to mitigate’. He is completely free to act as he judges to be in his best interests. On the other hand, a defendant is not liable for all loss suffered by the plaintiff in consequence of his so acting. A defendant is only liable for such part of the plaintiff’s loss as is properly to be regarded as caused by the defendants’ breach of duty.”

[6][36] Under cross examination Mrs. Gilkes was asked how she came to the view that the cost of employing someone to perform household chores is $700.00 per month. She stated that she asked around. She admitted that she did not go to the Labour Department to make any enquiries and is not aware that the statutory rate for domestic help is cheaper than $700.00 per month.

[7]states: “Where the plaintiff has suffered an impairment of his ability to perform household chores, that loss will be assessed on the basis of the cost of employing a housekeeper to perform them, even though the plaintiff may choose not to employ a housekeeper. Where a member of the plaintiff’s family voluntarily undertakes to perform the chores previously performed by the plaintiff, the plaintiff is entitled to an award of damages representing the value of those services. Where, prior to the accident, the plaintiff performed an unfair proportion of the household chores, he will not be entitled to damages representing the full amount of those chores actually performed, only those which could fairly be said to represent the plaintiff’s share of such chores.”

[8]the Court of Appeal held that in assessing claims for loss of housekeeping ability for a pre-trial period : “… the court had to look at the actual loss sustained by the plaintiff, and therefore, in regard to that period, it was not correct to evaluate the loss of housekeeping ability by reference to the amount it would have cost to employ the necessary domestic help when the plaintiff had not in fact employed such help. The pre-trial loss properly fell to be assessed as part of the plaintiff’s general damages for pain, suffering and loss of amenity by considering to what extent her difficulties in performing her housekeeping duties due to her disability had increased those damages.” (emphasis mine)

[9]but ” since the operation I can no longer perform this task. I was forced to hire my brother Alexander Oliver to cut the lawn and to maintain the yard for this service we paid him $400.00 per month.”

[10][45] The sum of $108,400.00 is claimed for lawn care at a rate of $400.00 per month from July 1993 “to date.” Mr. Gilkes also gave evidence to this effect.

06.08.1993 Surgery (St. Vincent) 1,500.00 No receipt

06.08.1993 Anesthetist (St. Vincent)

100.00 No receipt

09.08.1993 Hospital Fees (St. Vincent)

159.60 No receipt

91.04 No receipt

06.12.1994 Diagnostic visit

260.00

351.00 No receipt

28.12.1994 X-Rays (local)

50.00 No receipt

7.…12.1994 Airfare to Barbados

380.00 No receipt

8.00.12.1994 Departure Tax

25.00

33.75 No receipt

9.00.02.1995 Airfare to Barbados

499.80 No receipt

10.00.02.1995 Departure Tax

20.00 No receipt

06.02.1995 Laboratory Fees

07.02.1995 Surgery (Barbados) 6,000.00 8,100.00 No receipt

08.02.1995 Anaesthetist fees (Barbados) 750.00 1,012.50 No receipt

08.02.1995 Hospital fees (Barbados) 3,982.00 5,375.70 No receipt

03.04.1995 Hospital fees (Barbados) 2,299.00 3,103.65 No receipt

13.04.1995 Fed Ex to Claire Gilkes

39.90 Receipt provided.

23.10.1995 MCMH Lab Fee

29.04.1996 MCMH Lab Fee

20.00 Receipt provided.

20.02.1997 MCMH Lab Fee

20.00 Receipt provided .

02.12.1997 Insurance – Dennis Bailey

100.00

135.00 Receipt provided

16.01.1999 Fed Ex to Dennis Bailey

08.02.1999 Laundry

567.00 No Receipt

08.02.1999 Food/Miscellaneous Expenses

500.00 675.00 No Receipt

08.02.1999 Transportation (12 days Benon Gilkes) 960.00 1,296.00 No Receipt

24.07.2001 Insurance – Dennis Bailey

100.00

135.00 Receipt provided

04.09.2003 Caribbean Star Flight to Barbados

334.80 Receipt provided

04.09.2003 Departure Tax

25.00

33.75 Receipt provided

09.02.2005 Insurance – Dennis Bailey

150.00

202.50 Receipt provided

16.02.2005 MCMH Lab Fee

50.00 Receipt provided.

21.02.2005 Fex Ex to Dennis Bailey

59.67 Receipt provided

25.02.2005 People’s Pharmacy

12.75 Receipt provided.

02.09.2005 Maryfield Medical

13.11.2006 Airfare to Barbados

142.75

387.84 Receipt provided

13.11.2006 Queen Elizabeth Hospital

40.00

54.00 Receipt provided

13.11.2006 Queen Elizabeth Hospital

20.00

27.00 Receipt provided

13.11.2006 Medical Attention – Dr. Bell

100.00

135.00 Receipt provided

13.11.2006 Insurance Dr. Bailey

150.00

202.00 Receipt provided

06.00.2007 Fed Ex to Dennis Bailey

68.78 Receipt provided

02.07.2008 Airfare to Barbados

310.00 843.87 Receipt provided

15.08.2008 Caribbean Reference Lab

135.00 Receipt provided.

20.10.2008 Caribbean Medical Imaging Lab

80.00 Receipt provided

03.09.2009 Caribbean Reference Lab

75.00 Receipt provided.

12.09.2003 Consultation Vincent Clarke

250.00

337.50 Receipt provided.

28.10.2009 Caribbean Reference Lab

110.00 Receipt provided.

26.10.2009 Caribbean Medical Imaging Lab

80.00 Receipt provided

24.11.2009-2.12.2009 Airfare to Barbados 1,595.50 Receipt provided

24.11.2009 Mayfair Medical

50.00

67.50 Receipt provided.

27.11.2009 Imaging & Ultrasound Inc

100.00

135.00 No Receipt

27.11.2009 Medical Services – Vincent Clarke

150.00

202.50 Receipt provided.

12.02.10 – 3.3.10 Mustique Airways to Barbados

356.50 968.60 Receipt provided

07.03.10-28.03.10 Airfare to Barbados

224.60 610.22 Receipt .provided

13.06.2010 Airfare to Barbados

84.40

229.31 Receipt provided.

20.08.2010 Airfare to Barbados

146.80

398.85 Receipt provided

28.06.2011 Airfare to Barbados

129.60

352.12 Receipt provided.

28.06.01 Airfare to Barbados

488.62 1,327.54 Receipt provided

28.06.2011 Haresh Gopwani Medical

100.00

135.00 Receipt provided

08.12.2011 MCMH Lab 765.00 Receipt provided

08.12.2011 MCMH Lab

15.00 Receipt provided.

27.08.2012 Airfare to Barbados

142.10

386.09 Receipt provided.

30.08.2012 Imaging & Ultrasound

250.00

337.50 Receipt provided.

09.11.2013 Imaging & Ultrasound

250.00

337.50 Receipt provided

28.08.2012 Medical services – Vincent Clarke

130.00

175.00 Receipt provided

10.09.2013 Medical Services – Vincent Clarke

180.00

243.00 Receipt provided Consultation Vincent Carke

250.00

337.50 No Receipt. Departure Tax

25.00

33.75 No Receipt Overseas Telephone Calls 767.08 No Receipt Departure Tax

20.00 No Receipt Airfare to Barbados and Departure Tax – B Gilkes

348.75 Receipt provided Departure Tax

25.00

33.75 No Receipt Insurance – Dennis Bailey

100.00

135.00 No Receipt Consultation – ARS

250.00

337.50 No Receipt

[11]I award Mrs. Gilkes $20,892.29 being the total costs set out in numbers 1 to 15 of the schedule.

[12]Her final operation was in 1995.

[13]There is no evidence that Mrs. Gilkes: (1) Was required to or underwent any other operation after 1995; or (2) was required to and did travel out of the jurisdiction after 1995 to receive medical treatment related to the injuries caused by the negligence of Dr. Thomas and Dr. Rajkumar.

[14]Under cross examination Mr. Gilkes states that he was informed by Dr. Bailey, who he knows is an ENT specialist, that Mrs. Gilkes could not have children because of her condition. (4) Extent to Which Pecuniary Prospects Have Been Effected

[15]where the court awarded the claimant, who was rendered a paraplegic, $100,000 for pain and suffering and $170,000 for loss of amenities in 2012; Winston George v Anderson Franklyn et al

[16]where the court awarded the claimant $90,000 for pain and suffering for the loss of an eye; and the Canadian case of Thorsell v Hoem

[17]where the claimant was awarded CND$125,000. It is submitted that the sum of $97,500 would be reasonable compensation for pain and suffering and loss of amenities

[18]$75,000 for pain and suffering and $125,000 for loss of amenities for injuries which resulted in him being a paraplegic and confined to a wheelchair for the rest of his life.

[19]the claimant became a quadriplegic as a result of his injuries sustained in a motor vehicle accident. The medical evidence disclosed that the claimant would never walk again and could not do anything for himself. He spent most of his days in a wheel chair with special convoluted foam behind him for support. He had to be bathed, cleaned and fed, drank from a straw with someone holding the glass for him and had to use pampers and a catheter. He continued to experience pain in his neck and often got bedsores. The claimant, who was an acrobatic dancer, who regularly performed at various hotels and public functions. He had a normal and active sex life prior to the accident but could no longer enjoy this. His girlfriend left him and took away their two children and his prospects of marriage were virtually non-existent. In 2004 the court awarded the claimant $100,000 for pain and suffering and $150,000 for loss of amenities.

[20]the claimant suffered multiple injuries including internal bleeding, factures to the facial bones and wound to the face. The claimant was hospitalised for 9 days and was operated on to deal with the internal bleeding. At the time of his admission to the hospital it was noted that there was severe deformity of the face. The claimant was referred to a plastic and reconstructive surgeon since it was discovered that the claimant had ” malocclusion, inability to open his mouth and loss of sensation of his lower lips .” The medical report diagnosed fracture of several bones in the face. The claimant had to undergo further surgery and the appearance of his face was permanently altered. The claimant, who was 26 years old and an amateur boxer who represented his country, was awarded $55,000 for pain and suffering and $45,000 for loss of amenities in 2012.

[22]Hariprashad-Charles J stated: ” It is obvious that damages for pain and suffering are incapable of exact estimation and their assessment must necessarily be a matter of degree, based on the facts of each case. They must be assessed on the basis of giving reasonable compensation for the actual and prospective suffering entailed including that derived from the plaintiff’s necessary medical care, operations and treatment.”

[23]Mrs. Gilkes admitted under cross examination that she is able to perform her household chores but experiences pain while doing do. I therefore find that Mrs. Gilkes was not being candid when she asserted that she is unable to perform any household chores and that these chores are performed by her husband and brother.

[24]The conventional approach to calculating this head of damage is the multiplier/multiplicand approach. Alternatively, the court may use a lump sum approach where there are evidentiary uncertainties.

[25][92] Mrs. Gilkes’ evidence is that she earned $750.00 from her job as a teacher and prior to her injury she intended to open her own preschool from which, after expenses, she would have earned $1800.00 per month. Mrs. Gilkes asserts that she has been unable to engage in any employment as a result of her injury.

[26]state: ” 378. Claimant’s Duty to Mitigate Loss The claimant must take all reasonable steps to mitigate the loss which he has sustained consequent upon the defendant’s wrong, whether that wrong be a breach of contract or a tort . If he fails to do so, he is not in breach of duty as such, but he cannot claim damages for any such loss which he ought reasonably to have avoided , the reason being that such loss is regarded as flowing not from the defendant’s wrong but from the claimant’s unreasonable behaviour . …. A personal injury claimant must mitigate his loss by obtaining proper medical treatment and not acting so as to retard his recovery, and he is not entitled to damages in respect of any pain, suffering, loss of amenities or loss of earnings consequent upon his failing to do so . Furthermore, even if disabled from continuing his present employment, he should be prepared to accept reasonable alternative work … The law of mitigation may exceptionally operate in favour of the claimant. If, in taking reasonable steps to mitigate, he incurs expenses or further loss, he may recover such expenses or loss from the defendant, even if the resulting damage is greater than it would have been had the mitigating steps not been taken at all.”

[27]. These limitations do not however restrict every form of employment. Mrs. Gilkes has provided no evidence that: (a) she took any steps whatsoever to retrain in another field which does not require heavy lifting or too much exertion ; or (b) she made efforts to engage in alternative employment not requiring heavy lifting or too much exertion. She has provided no medical or other credible evidence of obstacles to her retraining or finding alternative employment.

[28]the Court of Appeal reduced the multiplier to 12 for a claimant who was 45 years old at the time of the accident with a working life of up to 65 years. Singh JA stated: “Dr. Gonsalves presented this Court, for our guidance, with nine other unreported authorities from the region showing comparable injuries and the multipliers adopted e.g. 32 years old, multiplier 13, 33 years old, multiplier 13, 26 years old, multiplier 9, 30 years old, multiplier 13, 24 years old, multiplier 14, 52 years old, multiplier 5, 40 years old, multiplier 12, 31 years old, multiplier 10, 47 years old, multiplier 9 (but reduced to 6). It is obvious from these authorities that the identification of the true multiplier depended on the individual facts and circumstances of each case and that there was no rigid formula… In determining the multiplier a Court should be mindful that it is assessing general and not special damages. That it is evaluating prospects and that it is a once for all and final assessment. It must take into account the many contingencies, vicissitudes and imponderables of life. It must remember that the plaintiff is getting a lump sum instead of several smaller sums spread over the years and that the award is intended to compensate the plaintiff for the money he would have earned during his normal working life but for the accident.”

[29]a multiplier of 3 was used for a plaintiff who was 57 years at the time of the trial with a working life up to 65 years. In Aubrey Smith v Calvert Fleming et al

[30]a multiplier of 6 years for the freelance work and a multiplier of 2 years for the contract work was used for a claimant who was 57 years old at the time of the accident and planned to work up to 65.

[31]. If Mrs. Gilkes had retrained and/or sought employment in any of these or a similar field there is a real likelihood that she would have been able to earn at least an income within the range of the minimum wage or slightly less if she was unable to work full time.

[1]Certificate from Kingstown General Hospital

[2]Ashcroft v Curtin [1971] 1 WLR 1731. Grant v Motilal Moonan Ltd. and Another (1988) 3 WIR 372

[3]Paragraph 21 of the witness statement filed on 3 rd May 2016

[4]16th ed (1997) at page 190

[5][1983] 1 Lloyd’s Rep 605 at 608

[6]Paragraph 14 of Mr. Gilkes’ witness statement.

[7]4 th Edition, Volume 12 (1) paragraph 891

[8][1980] 3 All ER 696 te

[9]Paragraph 27 of the witness statement

[10]Paragraph 27 of the witness statement.

[11](1988) 3 WIR 372

[12]Paragraph 15 of the witness statement

[13]Paragraph 20 of the witness statement

[14]Paragraph 25 of the witness statement

[15]SKBHCV2008/0120

[16]GDAHCV2000/0346

[17]1984 CanLII 890 (BC SC)

[18]SLUHCVAP1996/0006

[19]SLUHCV2001/0555

[20]DOMHCV2009/0018

[21]CCCA Limited v Julius Jeffrey SVGHCVAP2003/0010

[22]BVIHCV2008/0183

[23]paragraph 36

[24]Heeralall v Hack Brothers Constructing Co. Ltd and another 1977) 25 WIR117 at pages 132

[25]Blamire v South Cumbria Health Authority P.I.Q.R Q1, C.A

[26]Volume 29 (2004) paragraph 378

[27]Medical report by Dr. Bailey

[28]BVIHCVAP1996/0001

[29]HCVAP 2009/007

[30]AXAHCV2008/0050

[31]Department of Labour, Ministry of National Reconciliation, The Public Service, Labour, Information and Ecclesiastical Affairs, Government of St. Vincent and the Grenadines http://www.dol.gov.vc/dol/