Yvonne Francis v Joseph Pestaina

I THE EASTERN CARIBBEAN SUPREME cluRT ANTIGUA &BARBUDA IN THE HIGH COLRT OF JUS1'ICE CLAIM NO, ANUHCV 2007/0294 BETWEEN: YVONNE FRANCIS Claimant I a~d I JOSEPH ANTHONY ~ANCROFT PESTAINA As Lawful Attorney for KATHLEEN AUDREY PESTAINA Defendant Appearances: Mr. Hugh Marshall and with him Ms. ema Benjamin for the claimant Mr. Kendrickson Kentish for the defe dant 2013: Se tember 05 JUDG~ENT

[1]HENRY, J,: By Claim Form filed 23r' May 2007, the claimant seeks damages allegedly arising as a result of the negl'gence of the defendant. The Statement of Claim alleges that the defendant was at all material times the owner and registered proprietor of the premises situated 0 Saint Mary's Street which houses PC's Bookshop. The claim states that on the 3rd February 2006, Ms Francis was struck in the face and knocked into the gutter by a falling object, which she later observed to be the wooden exterior door which gives access into and from the upstairs of the premises. Ms Francis, as aresult of the if11pact, sustained certain injuries.

[2]A Consent Order dated 23rd October 20~2 was entered against the defendant on the issue of liability. Thereafter the matter was set down for assessment of general damages.

[3]At the Assessment hearing, Ms Francis r lied on her evidence in chief as contained in her affidavit filed on 28 February 2013. T e defendant declined cross·examination and no further witnesses were called on her b half. The defence called no witnesses.

[4]Both parties rely on their written submissi ns:

[5]The Claimant's Evidence In her affidavit, Ms. Francis recounts th . events of 23rd February 2006. According to her, at approximately 10:30 am as she ~alked along the sidewalk on the right side of St Mary's Street facing west, as she approached the entrance of PC's Bookstore, she felt a severe blow to her face. She was knocked into the gutter. Stunned by the blow to her head, she recounts that she open~d her eyes but could see nothing. She heard a voice advising her not to move. She states that she laid where she was for a while and when she opened her eyes again she could see.

[6]Her evidence is that she observed h r bag scattered around her. Her broken spectacles were in the gutter and the oor which leads to the upstairs part of the building was lying next to her across th sidewalk. Ms Francis recalls that she was assisted to her feet by one Barbara M rtin, an employee of the Bookstore, and a gentleman known to her as Steve Mich el. She was helped to her feet and assisted into the bookstore.

[7]I Her evidence is that shortly thereafter srsPoke to Mr. Pestaina who then took her to Dr. Ravi's Office, where she was exa ined. The report of Dr. Ravi was admitted without objection into evidence. [81 According to the report Ms Francis sustained the following injuries: a) A hematoma on the left side of her forehead about 3 inches in diameter with superficial abrasions. b) Subconjunctival Haemorrhaging c) Soft tissue swelling as revealed by aiCT scan of the brain.

[9]Ms Francis was placed on sick leave from 23rd February to 11th April 2006. During that period she was seen by Dr. Ravi on 24th February 2006 and 20th March 2006. When examined by the doctor on 11th April 2006, the doctor noted that her condition had improved but a small ematoma was still present on her forehead and there was still evidence of swel ing and hemorrhage around the left eye. Dr Ravi also noted that Ms. Francis com lained of headaches.

[10]Ms Francis was also examined by D . Alvin Edwards, an Ophthalmologist on 23rd Feb. 2006. Dr. Edward's report was xhibited. According to his report: "She had alarge haematoma (swelling containing blood) on the left side of her forehead and a bruise pn her upper left cheek. However, the eye appeared normal. ! She was diagnosed with hea atoma of the forehead secondary to trauma and was given a course of ntibiotics prophylactic ally. She was followed over the next few weeks and the heamatoma resolved with some tenderness remaining in the rea and discoloration of the overlying skin."

[11]Ms Francis observed the condition 0 her face in a mirror for the first time at Dr. Edwards' office. Ms. Francis described her face as follows: "My face was swollen and se~erely disfigured with a hematoma the size of acricket ball above my left e 'e".

[12]Ms. Francis attended a photo studi later that day and had photographs taken. Copies were exhibited. Additional ph tos were taken on 20th March 2006 and 29th March as well as 12th April 2006 and 4th April 2006. ,

[13]She also noted that the headaches, ~hich began after the incident, continued to plague her up to the date of her affidavit on 28th February 2013.

[14]Ms. Francis claims special damagesrf $13,668.89, which has not been contested by the defendant. It is left to the ourt to determine the quantum of general damages. I The Law l'

[15]While special damages consist of 0 t of pocket expenses and loss of earnings, general damages are those implied ~y the law and include compensation for pain and suffering and permanent disability if any and loss of earning power1.

[16]The legal principles concerning ssessment of general damages are well established and have been succinct y set out in the well known and often cited case of Cornilliac v St. Louis2. T ere Sir Hugh Wooding CJ enunciated the several considerations which a trial judge must bear in mind when making an assessment. They Include: (1) The nature and extent of the inju ies sustained; (2) The nature and gravity of the res lUng physical disability; (3) The pain and suffering which had! to be endured; (4) The loss of amenities suffered; I (5) The extent to which, consequehtially, the appellant's pecuniary prospects have naturally affected.

Special Damages

[17]In paragraph 3 of the claim the followihg Special Damages are listed: Medical Expenses $ 3,438.89 Loss of Earnings $10,230.00 Total $13,668.89

[18]The special damages were largely u~.challenged. Ms. Francis who gave evidence was not cross-examined at all. How ver in their written submissions, defendant raises the point that no information as given by Ms Francis as to whether she has claimed on any applicable insurance policy. Further with respect to the sum claimed for loss of earnings, defend9nt questioned whether the sum was subject to taxation.

[19]I am satisfied that the sums claJed for special damages have been well documented by the claimant. In the ~~sence of any evidence from the defendant, the sums claimed are awarded.

4i

GENERAL DAMAGES

[20]On the issue of the quantum of g~neral damages, Counsel for the defendant submits that the court ought to have iregard to cases from this jurisdiction. In fact his submission is that it would be in ppropriate to consider awards from England or Trinidad & Tobago because the di erence in money is so wide. Counsel refers the court to the judgment of Georges in the case of Francis v. Maynesl •

[21]In the Francis case, Georges J noied that the Privy Counsel had given some guidance in the case of Tong v. LI Ping Sum4, an appeal from Hong Kong. There the Board indicated that a court sho~ld in general have regard only to awards in the same jurisdiction or in a neighboring locality where the relevant conditions are similar.

[22]Georges J., in Francis concluded: "The court in the OECS can in my view confidently rely on awards in the region and in neighboring c mmonwealth Caribbean jurisdictions which are fairly widely reported." A conclusion this court can embrace.

Nature and Extent of Injuries

[23]The court accepts the injuries as set ut in the medical certificate of Dr. Ravi; the 3 main injuries being the 3 inc hematoma with abrasions, subconjunctival bleeding and soft tissue swelling. T .e court will also take into consideration the length of time it took for Ms. Francis' Injuries to heal. At the time of Dr. Ravi's last examination on 12th May 2006, signslof a small hematoma were still visible. They can also be seen in the photographs. There was also still evidence of swelling and hemorrhage around the left eye. The Court also accepts the treatment as set out in the medical certificate of Dr. Edwards

[24]There was no evidence of permanent disability. The disfigurement to the face was not permanent. However, there wa temporary disfigurement in the form of discoloration and swelling. These we eventually resolved in about 2- 3 months. • Pain and Suffering

[25]The court considers under this hea~ing the pain at the time of the initial injury when Ms Francis describes receiving a "severe" blow to the face which knocked her into the gutter.

[26]In addition, there is evidence in the medical report of Dr. Ravi that Ms. Francis complained of headaches. Ms. Franc s's evidence, which the court accepts, is that the headaches continued until the da of the affidavit.

Other Factors

[27]There is no mention in Ms. Francis'evidence of loss of amenities. None will be presumed, other than the minor incnvenience endured during the period of her treatment.

[28]There was also no evidence that pecuniary prospects have been materially affected. [29) Even though the injuries were to the face above the eye area, they were never characterized as life threatening. T~e injuries were mostly soft tissue injuries, which were resolved in a matter of weeks. [30) I have considered the following cas s: Rosabel Chambers by her mother and next friend Linda Chambers et al . Gooding5 where the claimant sustained a lacerated wound to the lower left leg nd other soft tissue injuries as a result of the negligence of the defendant. There w s no permanent defect, no loss of amenities or impairment of pecuniary prospects. General damages of $6,000.00 were awarded. • Adjustments will be made for the fact that this is a 1998 case. In addition, even though both cases involve soft tissue injuries, the present case involve injuries to the head and face, far more sensitive i arts of the body.

[31]In Kariyana Abdul v Michael Anth nyG the claimant suffered an injury to her right shoulder resulted in gross defo mity to her shoulder; there was a complete separation of the clavicle joint, with s vere pain and tenderness. She was unable to complete routine tasks previously undertaken. She was awarded $14,000.00 in 2003. 6: •

[32]Counsel for the claimant suggests that reasonable general damages in this matter should be in the region of $40,ooo.0[TheYrely on the case of Herbert v Greater London Council1. There the clai ant was awarded £7,000.00 for general damages for the injuries slJstained when a heavy door fell on his head. Mr. Herbert's injuries as set out in the jud ment were as follows: "". as a result of the accide~t he was unconscious. He then went to the hospital. In the hospital hiS injuries were examined and they were a fracture of the right frontal a d front parietal regions of the head and the floor of the anterior fosse f the head. There was a fracture of one transverse process of the rig t vertebra C7. When he was operated on it was found that there was a ear in the dural. So that the injuries that he suffered at that time were se ·ous. He did not have to stay in the hospital for very long, he was releaSed on the 5th May, that is to say, some six weeks after the accident."

[33]The judgment also indicated that as a result of the damage, Mr. Herbert lost his sense of smell in the right nostril; he ad an affect in his right eye which produced a slight squint and as a result of the amage there were depressions in his skull at the front of the head. Further, the inj ries also resulted in a 15% - 20% chance of developing epilepsy.

[34]I have already expressed my preference for consideration of regional cases in these matters, where they are available. However, even if the court were to consider the Herbert case, clearly th~ injuries in that case were far more serious than in the instant case. f'

[35]Taking all factors into considerati n, I would award general damages of $13,000.00 Interest

[36]Ms. Francis is entitled to an award of '1nterest both on the general damages and on the special damages. With respect to, general damages interest is awarded at the rate of 5% per annum from the dat of issue of the claim form to the date of judgment. In respect of the special amages interest is awarded at the rate of 2.5% per annum from the date of the t•ccident to the date of judgment.

[37]Interest on the global sum is also awarded at the statutory rate of 5% per annum from the date of judgment until paymert. , UK COU RT OF APPEAL (CIVil DIVISION) (deliver~ 21" October 1981) 7' • ..

Cost

[38]The matter had been originally set d~wn for trial on 23rd October 2012. On the day of trial, the defendant consented to !judgment being entered against him on the issue of liability only. Accordingly 8~% of the prescribed cost is awarded to Ms Francis. .

Conclusion

[39]Judgment is granted in favor of Ms Frbncis against the defendant as follows: (1) Special damages of $13.668.89\aISO General Damages of $13,000.00 for a total of $26,668.89 (2) Interest on the amount awarded ~s special damages at the rate of 2.5 %from the date of the accident to the da~e of judgment. Interest on the sum awarded as general damages at the rate of 5% from the date of issue of the claim form to date of judgment. Interest on ~he global sum from the date of judgment to payment at the rate of 5% per annum. (3) Cost to the claimant is 80% of the\prescribed cost. e~ . CLARE;lRY High Court 7u~ge Antigua &Barbuda f

Yvonne Francis v Joseph Pestaina I THE EASTERN CARIBBEAN SUPREME cluRT ANTIGUA &BARBUDA IN THE HIGH COLRT OF JUS1’ICE CLAIM NO, ANUHCV 2007/0294 BETWEEN: YVONNE FRANCIS Claimant I a~d I JOSEPH ANTHONY ~ANCROFT PESTAINA As Lawful Attorney for KATHLEEN AUDREY PESTAINA Defendant Appearances: Mr. Hugh Marshall and with him Ms. ema Benjamin for the claimant Mr. Kendrickson Kentish for the defe dant 2013: Se tember 05 JUDG~ENT

[1]HENRY, J,: By Claim Form filed 23r' May 2007, the claimant seeks damages allegedly arising as a result of the negl’gence of the defendant. The Statement of Claim alleges that the defendant was at all material times the owner and registered proprietor of the premises situated 0 Saint Mary’s Street which houses PC’s Bookshop. The claim states that on the 3rd February 2006, Ms Francis was struck in the face and knocked into the gutter by a falling object, which she later observed to be

[2][3]

[4][5]

[9]Ms. Francis was placed on sick leave from 23rd February to 11th April 2006. During that period She was seen by Dr. Ravi on 24th February 2006 and 20th March 2006. When examined by the doctor on 11th April 2006, the doctor noted that her condition had improved but a small ematoma was still present on her forehead and there was still evidence of swel ing and hemorrhage around the left eye. Dr Ravi also noted that Ms. Francis com lained of headaches.

[6][7] [81 the wooden exterior door which gives access into and from the upstairs of the premises. Ms Francis, as aresult of the if11pact, sustained certain injuries. A Consent Order dated 23rd October 20~2 was entered against the defendant on the issue of liability. Thereafter the matter was set down for assessment of general damages. At the Assessment hearing, Ms Francis r lied on Her evidence in chief as contained in her affidavit filed on 28 February 2013. T e defendant declined cross·examination and no further witnesses were called on her b half. The defence called no witnesses. Both parties rely on their written submissi ns: The Claimant’s Evidence In her affidavit, Ms. Francis recounts th . events of 23rd February 2006. According to her, at approximately 10:30 am as she ~alked along the sidewalk on the right side of St Mary’s Street facing west, as she approached the entrance of PC’s Bookstore, she felt a severe blow to her face. She was knocked into the gutter. Stunned by the blow to her head, she recounts that she open~d her eyes but could see nothing. She heard a voice advising her not to move. She states that she laid where she was for a while and when she opened her eyes again she could see. Her evidence is that she observed h r bag scattered around her. Her broken spectacles were in the gutter and the oor which leads to the upstairs part of the building was lying next to her across th sidewalk. Ms Francis recalls that she was assisted to her feet by one Barbara M rtin, an employee of the Bookstore, and a gentleman known to her as Steve Mich el. She was helped to her feet and assisted into the bookstore. I Her evidence is that shortly thereafter srsPoke to Mr. Pestaina who then took her to Dr. Ravi’s Office, where she was exa ined. The report of Dr. Ravi was admitted without objection into evidence. According to the report Ms Francis sustained the following injuries: a) A hematoma on the left side of her forehead about 3 inches in diameter with superficial abrasions. I b) Subconjunctival Haemorrhaging I c) Soft tissue swelling as revealed by aiCT scan of the brain.

[11]Ms Francis observed the condition 0 her face in a mirror for The first time at Dr. Edwards’ office. Ms Francis described her face as follows: “My face was swollen and se~erely disfigured with A hematoma the size of acricket ball above my left e ‘e”.

[10]Ms Francis was also examined by D . Alvin Edwards, an Ophthalmologist on 23rd Feb. 2006. Dr. Edward’s report was xhibited. According to his report: "She had alarge haematoma (swelling containing blood) on the left side of her forehead and a bruise pn her upper left cheek. However, the eye appeared normal. ! She was diagnosed with hea atoma of the forehead secondary to trauma and was given a course of ntibiotics prophylactic ally. She was followed over the next few weeks and the heamatoma resolved with some tenderness remaining in the rea and discoloration of the overlying skin."

[12]Ms. Francis attended a photo studi later that day and had photographs taken. Copies were exhibited. Additional ph tos were taken on 20th March 2006 and 29th March as well as 12th April 2006 and 4th April 2006. ,

[13]She also noted that the headaches, ~hich began after the incident, continued to plague her up to the date of her affidavit on 28th February 2013.

[14]Ms. Francis claims special damagesrf $13,668.89, which has not been contested by the defendant. It is left to the ourt to determine the quantum of general damages. I The Law l'

[15]While special damages consist of 0 t of pocket expenses and loss of earnings, general damages are those implied ~y the law and include compensation for pain and suffering and permanent disability if any and loss of earning power1.

[16]The legal principles concerning ssessment of general damages are well established and have been succinct y set out in the well known and often cited case of Cornilliac v St. Louis2. T ere Sir Hugh Wooding CJ enunciated the several considerations which a trial judge must bear in mind when making an assessment. They Include: (1) The nature and extent of the inju ies sustained; (2) The nature and gravity of the res lUng physical disability; (3) The pain and suffering which had! to be endured; (4) The loss of amenities suffered; I (5) The extent to which, consequehtially, the appellant’s pecuniary prospects have naturally affected. Special Damages

[20]On the issue of the quantum of g~neral Damages Counsel for the defendant submits that the court ought to have iregard to cases from this jurisdiction. In fact his submission is that it would be in ppropriate to consider awards from England or Trinidad & Tobago because the di erence in money is so wide. Counsel refers the court to the judgment of Georges in the case of Francis v. Maynesl •

[17]In paragraph 3 of the claim the followihg Special Damages are listed: Medical Expenses 3,438.89 Loss of Earnings $10,230.00 Total $13,668.89

[18]The special damages were largely u~.challenged. Ms. Francis who gave evidence was not cross-examined at all. How ver in their written submissions, defendant raises the point that no information as given by Ms Francis as to whether she has claimed on any applicable insurance policy. Further with respect to the sum claimed for loss of earnings, defend9nt questioned whether the sum was subject to taxation.

[19]I am satisfied that the sums claJed for special damages have been well documented by the claimant. In the ~~sence of any evidence from the defendant, the sums claimed are awarded. 1 British Transport Commission v. Gourley [1956] t·C 186, 206 per Lord Goddard. 2 (1965) 7 WIR 491. 4i GENERAL DAMAGES

[24]There was no evidence of permanent disability. The disfigurement to the face was not permanent. However, there wa temporary disfigurement in the form of discoloration and swelling. These we eventually resolved in about 2-3 months. 3 ANUHCV 1992/414. 4 (1985) WlR 396. • Pain and Suffering

[25]The court considers under this hea~ing the pain at the time of the initial injury when Ms Francis describes receiving a “severe” blow to the face which knocked her into the gutter.

[21]In the Francis case, Georges J noied that the Privy Counsel had given some guidance in the case of Tong v. LI Ping Sum4, an appeal from Hong Kong. There the Board indicated that a court sho~ld in general have regard only to awards in the same jurisdiction or in a neighboring locality where the relevant conditions are similar.

[22]Georges J., in Francis concluded: "The court in the OECS can in my view confidently rely on awards in the region and in neighboring c mmonwealth Caribbean jurisdictions which are fairly widely reported." A conclusion this court can embrace. Nature and Extent of Injuries

[31]In Kariyana Abdul v Michael Anth nyG the claimant suffered an injury to her right shoulder resulted in gross defo mity to her shoulder; there was a complete separation of the clavicle joint, with s vere pain and tenderness. She was unable to complete routine tasks previously undertaken. She was awarded $14,000.00 in 2003. 5 St. Vincent & the Grenadines Suit No 113 of 199~ (delivered 30th March 1998). 6 GDAHCV 1990/0124. . 6: •

[23]The court accepts the injuries as set ut in the medical certificate of Dr. Ravi; the 3 main injuries being the 3 inc hematoma with abrasions, subconjunctival bleeding and soft tissue swelling. T .e court will also take into consideration the length of time it took for Ms. Francis' Injuries to heal. At the time of Dr. Ravi’s last examination on 12th May 2006, signslof a small hematoma were still visible. They can also be seen in the photographs. There was also still evidence of swelling and hemorrhage around the left eye. The Court also accepts the treatment as set out in the medical certificate of Dr. Edwards

[26]In addition, there is evidence in the medical report of Dr. Ravi that Ms. Francis complained of headaches. Ms. Franc s’s evidence, which the court accepts, is that the headaches continued until the da of the affidavit. Other Factors

[36]Ms. Francis is entitled to an award of ‘1nterest both on the general damages and on the special damages. With respect to, general damages interest is awarded at the rate of 5% per annum from the dat of issue of the claim form to the date of judgment. In respect of the special amages interest is awarded at the rate of 2.5% per annum from the date of the t•ccident to the date of judgment.

[27]There is no mention in Ms. Francis’evidence of loss of amenities. None will be presumed, other than the minor incnvenience endured during the period of her treatment.

[28]There was also no evidence that pecuniary prospects have been materially affected. [29) Even though the injuries were to the face above the eye area, they were never characterized as life threatening. T~e injuries were mostly soft tissue injuries, which were resolved in a matter of weeks. [30) I have considered the following cas s: Rosabel Chambers by her mother and next friend Linda Chambers et al . Gooding5 where the claimant sustained a lacerated wound to the lower left leg nd other soft tissue injuries as a result of the negligence of the defendant. There w s no permanent defect, no loss of amenities or impairment of pecuniary prospects. General damages of $6,000.00 were awarded. • Adjustments will be made for the fact that this is a 1998 case. In addition, even though both cases involve soft tissue injuries, the present case involve injuries to the head and face, far more sensitive i arts of the body.

[32]Counsel for the claimant suggests that reasonable general damages in this matter should be in the region of $40,ooo.0[TheYrely on the case of Herbert v Greater London Council1. There the clai ant was awarded £7,000.00 for general damages for the injuries slJstained when a heavy door fell on his head. Mr. Herbert’s injuries as set out in the jud ment were as follows: “”. as a result of the accide~t he was unconscious. He then went to the hospital. In the hospital hiS injuries were examined and they were a fracture of the right frontal a d front parietal regions of the head and the floor of the anterior fosse f the head. There was a fracture of one transverse process of the rig t vertebra C7. When he was operated on it was found that there was a ear in the dural. So that the injuries that he suffered at that time were se ·ous. He did not have to stay in the hospital for very long, he was releaSed on the 5th May, that is to say, some six weeks after the accident."

[33]The judgment also indicated that as a result of the damage, Mr. Herbert lost his sense of smell in the right nostril; he ad an affect in his right eye which produced a slight squint and as a result of the amage there were depressions in his skull at the front of the head. Further, the inj ries also resulted in a 15% 20% chance of developing epilepsy.

[34]I have already expressed my preference for consideration of regional cases in these matters, where they are available. However, even if the court were to consider the Herbert case, clearly th~ injuries in that case were far more serious than in the instant case. f'

[35]Taking all factors into considerati n, I would award general damages of $13,000.00 Interest

[37]Interest on the global sum is also awarded at the statutory rate of 5% per annum from the date of judgment until paymert. , UK COU RT OF APPEAL (CIVil DIVISION) (deliver~ 21" October 1981) 7' • .. Cost

[38]The matter had been originally set d~wn for trial on 23rd October 2012. On the day of trial, the defendant consented to !judgment being entered against him on the issue of liability only. Accordingly 8~% of the prescribed cost is awarded to Ms Francis. . Conclusion

[39]Judgment is granted in favor of Ms Frbncis against the defendant as follows: (1) Special damages of $13.668.89\aISO General Damages of $13,000.00 for a total of $26,668.89 (2) Interest on the amount awarded ~s special damages at the rate of 2.5 %from the date of the accident to the da~e of judgment. Interest on the sum awarded as general damages at the rate of 5% from the date of issue of the claim form to date of judgment. Interest on ~he global sum from the date of judgment to payment at the rate of 5% per annum. (3) Cost to the claimant is 80% of the\prescribed cost. e~ . CLARE;lRY High Court 7u~ge Antigua &Barbuda I f 8 1