Leanthia Lewis v Irvin Durand

EASTERN CARIBBEAN SUPREME IN HIGH IRVIN DURAND April 30. JUDGMENT Part-heard and on written submissions AeTIE MASTER [AG.]: This is an assessment of damages as a result of a motor vehicle accident. The claimant by claim form with statement of claim and amended statement of claim filed on 26th January 2010 and 2nd February 2012 respectively claims for damages against the defendant for personal injuries and consequential loss caused by the negligent driving of the defendant. allow an claimant’s vehicle, defendant accepted were particularized in three medical reports annexed as The medical report of Dr. Julian De Armas, Orthorpaedic Surgeon, dated 12th August 2010. report states that the claimant was on 30th April 2010, complaining cervical spine pain, unbalance and weakness in both upper limbs, which started on 29th April 2010 after the vehicle in which she was travelling was impacted by the back. The medical report outlines the physical examination as follows: • Cervical Spine muscle contracture • Decreased range movement the Cervical Spine • Roomberg positive the in was seen was spinal are no neurosurgeons practising in Dominica and therefore the overseas. Armas dated 8th January 201 (tenderness the cervical area and radiculitis left nerve root) persist despite the physical therapy program. It was again recommended travelling overseas for a neurosurgical intervention. An appointment was made with Dr. Gottin, Chief of Spinal Surgical Services in Martinique on 2nd February 2011 The medical report of Hendricks A. Paul Dr Paul was recommended by the insurance company. He states in his report as follows; “There was disc herniation. In view of the disc herniation recurrent pain and stiffness in the neck is likely and a “cure” is unlikely. Surgery is not expected to get her symptom-free.” :::iOE!Clal Oamages 1)Mally’s Taxi Service Appraisal fee use monthly salary($4,500 x Massage Therapy (19)Travel (Martinique Ticket 24/01/2012) (20)Meals & Stay (Martinique- 24/01/2012 – Euro 280.00 (21) Departure Charges(Martinique 24/01/2012 (22) Medication(Martinique – 24/01/2012- Euro 80.38) (23)Medication (Martinique – 24/01/201- Euro 6.73) Travel insurance Medical Report Medical Report Legal Fees (Gildon Richards) $ $130.00 $90,000.00 $1000.00 $600.00 $365.82 $980.00 $45.00 $283.00 $ 24.00 $ 25.60 $ 50.00 $ 10.00 $1150.00 $7500.00 loan claimant during was not correspond states that the claimant intimates that as defendant The Court accepts the evidence of the claimant The is May 0, a day which lends credence to her assertion. In circumstances the sum as defendant challenged amount claimed for the home-helper in sum of $1,500.00. claimant submitted a receipt Suzette Fregiste for home-help from 30th April 2010 to 30th June 20 O. The defendant suggested a sum of $1000.00 for the two months period. The Court is minded to grant the amount in the absence of evidence to contradict the receipt presented by the claimant It is reasonable for help to have been provided having regard to the nature of the injuries suffered by the claimant (3) The amount of $90,000.00 for loss of salary for 20 months was challenged. The defendant contends that the medical report refers to a sick leave period from April 2010 to June 2010, and from 30th February 11 January 1, and accordingly the claimant should only even was seen notes rO(,(“‘Imrnonrlorl overseas trC”,ltmont appointment was made with Martinique. reference to a fee paid for consult de specialist and other fees. absence is SulJstalltl on a medical report allows amounts legal fees for Gildon Richards and should under separate heading as CPR 2000 allows claimants costs based on quantum awarded. court is of the view that the amount claimed for costs should be considered under the costs regime as prescribed by CPR 2000 and not as special damages. General Damages

[10]The legal principles governing the assessment of damages are well established in the seminal case of Cornilliac v St. Louis (1965) 7 WIR 491. Sir Hugh Wooding, listed the main factors to be taken into account as (i) the nature and extent of sustained; the nature and gravity of the resulting physical disability; and suffering endured; the loss amenities, if any; and the rosl)ects are affected. Damages are damages and were nature and resulting physical disability will have pain and suffering for the surgery intervention a neurosurgeon is required outside of available the medica! been accident. … In herniation recurrent pain and stiffness in the neck is likely is expected to her symptom-free .. 3. The pain and suffering endured evidence of the claimant, as supported by the medical evidence of Dr. Julian De Armas indicates that the claimant suffered injuries to her neck and first segment of her upper back. The claimant complained of cervical spine pain, unbalance and weakness in both upper limbs. As indicated before, the claimant is expected to have pain for the rest of her life. pecuniary Antigua Masonry Limited1 an in the course his employment in a block-making Onn'”UrHlrnOnT as Cedric Dawson v Cyrus Claxton2, In that case Appeal awarded $36,000.00 pain, suffering and loss amenities; loss future income; $36,582.00 earning capacity; 6,000.00 cost future medical attention, The respondent was injured in a motor vehicle accident where the appellant’s vehicle struck the respondent’s vehicle from behind. The respondent suffered C3-C4, disc herniation. The claimant asked the court to note the that the claimant suffered disc herniation in only one area, there being no evidence of lifetime pain and suffering as in the case at bar. 0/0456 delivered on No. 2004 delivered v Grand Royal Antiguan otnrt’o Windows & were Solomon et al5, the court awarded $40,000.00 pain and suffering as a claimant suffered chronic and the case Martha Leblanc v Augustin Thomas et al6 with the case bar. The court awarded $16,000.00 for pain, amenities in a motor vehicular accident where the traumatic disc prolapse of the cervical vertebrae and experienced neck pain. persist.

Armas stated in his report that the pain would

[15]In Celia Hatchet v First Caribbean International Bank et all, the court awarded $20,000.00 for general damages for injuries sustained in a motor vehicle accident. The medical report confirmed that the claimant, 40 years old, suffered from ANUHCV2006/0026 delivered October 13,2010 delivered January 1 Trinidad & Tobago 6 DOMHCV 2009/0296 delivered Piggot v 1″”’ ….. ”1’0 Windows & is asked account that claimant had alternative employment as she is not certain as to when the symptoms of her there were areas swellings on the claimant after states the as a clerk as a result of the injuries sustained, suffered by the claimant are comparable to the injuries suffered in the Court Appeal decision in Cedric Dawson v Cyrus Claxton and Cecilia Hatchett v First Caribbean International Bank (supra), The Court takes into consideration all the evidence, authorities, inflation since the decisions and all the circumstances of the case and makes an award of $50,000,00 for pain, suffering and loss of amenities,

[20]An award of interest is generally made for general damages and as a result an award of 5% interest is made from the date of this Order until payment Master