Bernice Jeremiah et al v Royston Gilbert et al

i I, IN THE SUPREME COURT OF GRENADA AND THE WEST INDIES ASSOCIATED STATES HIGH COURT OF JUSTICE , (CIVIL) CLAIM NO. GDAHCV2008/0038 BETWEEN:' 1. BERNICE JEREMIAH 2. TALITHA JEREMIAH (By her mother and next friend, BERNICE JEREMIAH) Claimants and 1. ROYSTON GILBERT 2. GLENNA GILBERT 3. PETER GILBERT Defendants Appearances: Mrs. C. Edwards, Q.C, with her Ms. Sabrita Khan for Claimants Mrs. Afi Ventbur de Vega for first and second Defendants Mr. Derick Sylvester for third Defendant i: , 2010: January 11,13 February 18 JUDGMENT I! FACTS

[1]PRICE FINDLAY, J.: On the 5th November 2006 the Claimants were passengers in ajvehicle driven by the second Defendant along the Springs Public Road. The vehicle was travelling in the direction of Springs, away from St. George's.

[2]The Isecond Defendant was on her way to the Open Bible Church in Springs. She, II ' in her evidence, said that she could not recall how fast she was driving (in terms of mph), 20 - 25 mph, could be more, could be less, but up to the point of Dafeau she was driving on the left-hand side of the road. I , '"

[3]There was akingle vehicle ahead of her. That vehicle made a left turn into Dafeau Gap: The second Defendant left her side of the road overtaking the vehicle in front of her. 'She went over to the right side of the road. According to her, the collision took place some 5-6 seconds after she overtook the vehicle in front of her.. In cross~examination she stated that when she just saw the third Defendant's vehicle she was on the right side of the road overtaking another vehicle.

[4]Thethird De~endant was also travelling on the Springs Public Road, but he was heading in the opposite direction to the second Defendant. The third Defendant was travelling towards St. George's.

[5]The collision took place in the area of the day care, which is attached to the Open Bible Church. The road is not straight. In fact, it was admitted by all parties that ther~ is a sliQht bend in the road and it is a blind corner of sorts in that one cannot see Ithe oncoming traffic in either direction for a period of time in the area of the collision. i

[6]The: third Defendant had a passenger in the front seat of his vehicle; she, fortunately, sustained no injuries as aresult of this collision. i· I: .. . .. .

[7]The two vehicles approached the Open Bible Church from opposite directions. The second Defendant says that she heard a loud noise like the sound of a motor . I vehicle comi~,g in the direction of her car. The first Claimant described the noise she heard aS "sounding like a plane". In her cross-examination she said, "I heard I a noise sounding like a plane." This was the vehicle driven by the third Defendant. Shel'describe'd the noise as being like when a plane taking off - a very' lo'ud noise. She1said that within 2- 3 seconds of hearing the noise, the two vehicles collided. .

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[8]Shesaid shel,heard the sound "pow-dow-pow". She described the third Defendant I as driving very fast and that he was driving in the middle of the road ..

[9]Theifirst Claimant did say in cross-examination that the second Defendant was driving fast but could not say that the second Defendant was late to collect her husband and the second Defendant denied being in a hurry or being late to collect her husband..

[10]Thesecond Claimant could give no testimony as to the accident as she was asleep in the back seat of the vehicle driven by the second Defendant. She did not see the accident; she only awoke after the collision had taken place.

[11]The third Defendant in his evidence says that he saw the vehicle of the second Defendant approaching him on his side of the road. He says he swerved away and stopped in the middle of the road to avoid the collision, but the cars collided.

[12]The witness Nigel Morain was travelling behind the third Defendant on the Springs Public Road on the day in question. He said he noticed that the third Defendant mas,h brakes; so hard that his back wheels started smoking. He further said that when the vehicles collided that the back portion the third Defendant's vehicle "lifted I off the ground for a few seconds and went back down".

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[13]Beverly St. John, the passenger in the third Defendant's vehicle said that she saw a Pajero Jeep coming towards the vehicle she was in on their side of the road. p :.

[14]Garth St. Bernard said that he heard the noise of a motor vehicle coming from the opposite direption of the second Defendant's vehicle. He was on the balcony of the Open Bible Church and had a clear view of the area of the road where the ; : collision too~! place. He admitted that he did take his eyes off of the second Defendant's vehicle because he did not see her overtake the vehicle at Dafeau Gap'; He' says thatat no time'did he see the second Defendant's vehicle on the right side of the road. This is not accurate as the second Defendant admits that she ventured onto the right side of the road in order to overtake another vehicle. I I,

[15]Importantly, ?e said that the third Defendant was driving at a very fast speed, he said approximately 80 mph. He went on to say that the third Defendant's vehicle appeared to be swerving and out of control. He admitted on cross-examination that '80 kph was much slower than 80 mph. He also said that he was not a prof~ssional ~o say that the third Defendant was travelling at approximately 80 I' ,, " '~". "-,' " mph. He did say that he saw the vehicle of the third Defendant "dragging", that is when one is mashing brakes. This dragging went on for about five seconds. He also said that the speed of the third Defendant's vehicle did not significantly reduce at the time of the collision.

[16]Further to the viva voce testimony in the matter, the Court had the benefit of the police report and the measurements taken at the scene on the day of the accident.

[17]The road surface on the day in question was dry, flat, smooth and gently sloping towards the direction of Woodlands. Visibility was not good in both directions.

[18]There were brake impressions measured with respect to the vehicle driven by the third Defendant. They were as follows:­ Braking impression of right wheel to point of impact - 47 ft. I Braking impression of left wheel to point of impact - 60 ft. There was no record of brake impression with respect to the vehicle driven by the second Defendant. I CONCLUSIONS (FACTUAL) I , , I

[19]Having reviewed all of the evidence adduced in the matter by both parties, I find as afact that: I, Ii (a) The second Defendant was driving along the Springs Road and overtook a vehicle which was ahead of her, turning into Dafeau Gap. (b) In order for her to carry out this manoeuvre she had to cross onto the right side ~f the road, I~aving her left and proper side. I' (c) That i: she had not returned to the left and proper side of the road completely prior to the collision. (d) The third Defendant was travelling in the opposite direction of the second Defendant, also on the Springs Road. I_ _. __ (e) The third Defendant was travelling at an extremely fast rate of speed. (0 The third Defendant left 47 ft. and 60 ft. of brake impressions on the road leading to the point of the collision. (g) Judicial notice is taken of the fact that the area of the accident is a blind corner and that the parties involved in the accident only saw each other within seconds of the collision.

NEGLIGENCE

[20]"Negligence is defined as the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do." - per Baron Alderson in Blyth v Birmingham Waterworks [1856] 11 Ex 781 at 784.

[21]The elementsi of negligence are well established I 1. The existence of a duty of care I, 2. The breach of that duty of care by the defendant 3. A causal connection between the defendant's carelessness and the damage '. I: 4. The damage must not be too remote

[22]All drivers on the road owe a duty of care to other users of the road, whether in i : vehicles or o~ foot. In order to achieve this the driver of a vehicle ought to keep a proper lookout, observe the rules and signs of the road and avoid excessive ! I; speed.

[23]"Although it does not necessarily follow that negligence is to be imputed to a driver " .. . who breaks the speed limit, there is no doubt that evidence of the speed limit being broken may provide evidence of negligence." Grealis v Opuni [2003] EWCA Civ.1F.

[24]Given all'the'attendantcircumstances here, the slight uphill path, the blind corner which the third Defendant was approaching; it required a greater degree of care than that exercised by the third Defendant on the morning of the accident.

[25]"It is also well established that the onus on the driver of an overtaking vehicle is to make sure that the entire movement is safely conducted and completed." - McCall v Ogiste [1965] 9 WIR 291. "One must make sure that one can pass the vehicle and' get back at once to the proper side before the approach of oncoming vehicles." McCall v Ogiste (supra).

[26]Again, taking into account the conditions that existed at the time of the collision, a greater duty of care was required of the second Defendant in carrying out the manoeuvre she attempted that morning. !, '

[27]I fin9 that neither the second or third Defendant exercised that degree of care that a re~sonableland prudent driver would exercise in the circumstances.

[28]I find therefdre asa fact that both drivers were at fault in the collision; and I apportion the~ blame equally. " PRELIMINARY POINT

[29]Counsel for the third Defendant raised a preliminary point with respect to the medical repQrts tendered by the Claimants. He took issue with the Claimants' attempt to rely on certain medical reports, that is, the reports of all the medical praJtitioners in thematter.'lh' support of his submission he cited CPR 32.6 and also lsubmitted that the Claimants had failed to comply with the relevant rules. I : i

[30]Part 32.6 of the CPR states: i! "(1) , A party may not call an expert witness or put in the report of an expert witness without the court's permission. (2) The general rule is that the court's permission is to be given at a case management conference. ,. ..' .... (3)' When aparty applies for permission under this rule (a) , that party must name the expert witness and identify the nature of his or her expertise; and (b) any permission granted shall be in relation to that expert witness only. (4) The oral or written expert witness' evidence may not be called or put in unless the party wishing to call or put in that evidence has served a report of the evidence which the expert witness intends to give. (5) The court must direct by what date the report must be served. I (6) The !court may direct that part only of an expert witness' report be disclosed."

[31]But Part 32.6 must be read along with Rule 8.7 which states that the Claimant must identify or have annexed thereto acopy of any document which the Claimant considers to be necessary to his or her case.

[32]It is Glear that here the Claimant did attach the report of Dr. Dragon to her claim as required by the Rules. The physiotherapy report was not prepared and the treatment no~ given until after the filing of the claim, hence that report was not attached at the time of the first filing. I, I

[33]In any event,'the onus then switches to the Defendant via Rule 10.6 of the Rules. If the Claimant has attached a report from a medical practitioner to the claim form or statement of claim, the Defendant must state in the defence whether all or any part of the medical report is agreed and if any part is disputed, the Defendant must , state the nature of that dispute.

[34]This. Rule puts the onus on the Defendants to state specifically if they accept the rep~rt and, if not, to state specifically the dispute that they have with the report. This is to allow the Claimants to know before the Case Management Conference what, if any, ~dditional evidence they need to call in terms of proving the claim for personal injuries.

[35]If the Claimant is aware of the disputed areas it allows for the Claimant to know that. the evidence of the medical practitioner is necessary by way of witness statement, and it alerts the Claimant that the medical practitioner ought to be made available for cross-examination (if necessary).

[36]The. third Defendant in his defence did not state that he disputed the contents of the medical report attached to the Statement of Claim, nor did he state the nature of any dispute that he may have had with the report.

[37]He only raised the issue at the opening of the trial. The third Defendant has failed to comply with Rule 10.6 and cannot now raise the issue as to whether the Clai~ant can, rely on the report of Dr. Dragon. The Court finds that the Claimant can ,rely on t~~ report of Dr. Dragon attached to the Statement of Claim.

[38]In vi~w of th~ fact that the report from the chiropractor was obtained after the filing of t~e claim,I the Rule would not apply and the Court will consider all medical , I reports submitted on behalf of the Claimants in assessing the relevant amount of , ' damages du~ to the Claimants. The weight to be attached to the relevant documents is a matter to which the Court will address itself when damages are . i. being assessed.

GENERAL DAMAGES

[39]Having decided that the first and third Defendants are equally liable for the dam,ages su~~ered by the Claimants, the Court must now assess the damages. Theguidelin~s set out in the case of Cornilliac v St. Louis [1964]7 WIR 491 - Sir Hugh Woodirg, CJ. set out the criteria to be considered in assessing general damages. These are: - The nature and extent of the injuries suffered. I.- The Inature and gravity of the resulting physical disability. I • Pain and suffering. • Loss of amenities. .• The extent to which pecuniary prospects were affected.

SPECIAL DAMAGES

[40]The first Claimant claims that she has expended monies on' medical bills con~equent ~pon the accident. These expenses were as follows: 1. Medical report $400.00 2. Physiotherapy 500.00 ,. 3. Consultations 1500.00 4. I. Transportation costs 2040.00 5. Loss of income 9200.00 The first Clail;nant in this matter suffered significant injuries and while the injury to II her daughter was not as serious, nevertheless they were painful injuries. I' [4 'I] I wish to express my thanks to all Counsel involved in the matter for the authorities which were submitted to the Court. I was referred to, among others:- . i ChristopherFlermius v Andre Solomon &Fimber Louis - SLUHC2002/1041 Mohammed v Supersad Bacchus v Mohammed Randy Oliver v Godwin Keir &Lennox Parsons - SVGCV1998/215 Sharmala Pereira v Reginald Mills - SKBHCV2004/0038 Marcel Fevrier & Jenny Fevrier v Bruno Canchan, Asphalt Product et ai, the succession of Joseph Felicien - SLUHCV1989/313 " . . ii

[42]Whil:e the inj4ries in the.,~~thorities vary and none is on all fours with the injuries in , " the present matter, it is important to compare the facts in those cases especially as it:relates to the seriousness of the injuries suffered by the first Claimant.

[43]Dr. Kester Dragon's report of November 7, 2007 sets out the injuries the first Claimant suffered as follows: • The left leg was grossly deformed and swollen. • Tenderness was elicited OD palpation over the proximal tibia. • Left knee effusion • Anterior chest was tender on palpation over the sternum. • X-rays of the left leg showed a complete comminuted fracture of the proximal tibia extending to the joint. . II. "._" "._-'" ,"" - _... . , ..

[44]The',doctor concluded that she had the following injuries: a. , Sternal contusion I I: b. Displaced intra-articular fracture of the left proximal tibia.

[45]Shelwas operated on, an open reduction of the fracture was done and the leg immobilized in plaster of Paris. j.

[46]She was adr:ninistered with analgesics. Anticoagulation therapy was used and intra'venous ~~tibiotics were administered. Physiotherapy was started.

II

[47]After her discharge from the hospital she had persistent swelling of the left knee and 'leg.

[48]She had further surgery in August 2007 for manipulation of her left knee as flexion II and extension of the knee were limited.

[49]Dr. Dragon did promise a supplementary report, however, none was forthcoming.

[50]The :report onhe physiotherapist Ben Wallis is dated 8th October 2008, almost two years after the accident. The report details that the first Claimant complained of constant pain, and pins and needles over her anterior knee, laterally down her calf, anteriorly over the ankle and into the arch of the foot.

[51]The therapist found that she had limited flexion of the left knee and she could fully weight bear on the left leg with some pain. He found that after several sessions of therapy her symptoms showed little improvement and he was of the opinion that she ,may have reached her full potential. She had home exercises which she had to do.

[52]Dr. Pelham Mc Sween in his report indicates that he first Claimant has a short left leg, and that her physiotherapy would continue for another six months from the date of his report (January 2009). Ii i, . . - -. - -----..-- ---.

[53]As aresult of, this accident the first Claimant said in her evidence that her quality of life had changed. She is no longer an independent, sexually active female. She can ,no long~r ,I jog, which she used to do daily. She can no longer help herself , around the house in the manner in which she did before. She has gained weight. She is depressed. She says she is in constant pain. Her daughter testified to her I, I···· ." . --. .. . motl1er's crying due to the pain and her having to rub her mother's leg to alleviate that 'pain. Sh:e now has a 10-inch scar on her leg. i.

[54]The Jirst Claimant has had to rely on friends to do her household chores, Simon Nicholas testified to going to the first Claimant's home and preparing breakfast for her; :bathing land cleaning her for a period of time after the accident. He also " I . ' testified that her lifestyle had changed from what it was prior to the accident. She was no longer the active and vibrant person he knew. He said that he was not paid for his services.

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[55]Prior to the laccident the first Claimant worked part-time, earning a wage of $200.00 per week. She stopped working the Friday before the accident She will be disadvantaged in the workplace once she returns to work as a result of the injuries she suffered. I am of the view that the first Claimant will be able to work but will only be able to do so at a reduced capacity given her injuries. Her work pros'pects asa result might be limited.

PAIN &SUFFERING AND LOSS OF AMENITIES

[56]She will not be able to play netball or jog as aresult of the accident.

[57]I have looked at the various authorities and as I indicated earlier, no case is on all .. fours with the present facts. However, having considered all the relevant factors placed before the Court, I would assess these damages at the figure of EC$80,OOO.00.

[58]The pecuniary prospects of the first Claimant are not dim but they are not as bright as they would have been but for the accident. She has been left with a shortened ! . left leg; she 'is in constant pain; she cannot sit nor stand for long periods; she walks with a limp. It would seem that these things will put her at a disadvantage when she seeks work in whatever area she chooses so to do. She will certainly not be as mobile or agile as other workers. Given all the uncertainties and taking I into account the material before me, I assess these damages at aglobal figure of !, EC$25,OOO.00.

[59]The'special damages of $4,400.00 as claimed for her medical expenses would be awarded but !as she was unemployed at the time of the accident no award would I be made for that period for loss of earnings.

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[60]Interest will ble awarded on the sums at the rate of 6% per annum from the date of the filing of the Claim Form to the date of trial.

[61]Of cpurse, the first Claimant would have had to pay someone to care for her after the accident. IShe was unable to walk for a period of approximately 24 mqnths and was,on crutc~es for a considerable period of time. She needed help to bathe and otherwise care for herself. She should get some relief under this head. I am of I II' the view that $1 00.00 per week is not an unreasonable sum, and I would therefore award the sum of EC$1 0,400.00.

[62]With respect to the second Claimant, no medical records were tendered on her behalf but there was evidence of her pain. She testified to having a twisted jaw, to pain in her jaw, headaches which continued for aconsiderable period of time. She also' testified about her performance in school and how it suffered due to the accident.

[63]Having reviewed the evidence I would award the second Claimant the sum of EC$15,OOO.00 as general damages. with interest to run on that sum at the rate of 6% per annum from the date of filing the claim to the date of trial.

[64]The total award is as follows: I : 1. Damages for pain &suffering and loss of amenities First Claimant $80,000.00 2. Lost pecJniary prospects - First Claimant $25,000.00 3. ~om~ ca~~ -: Firstq~irn,~f.l.L... " ...,. $10,400.00 4. Pain &Suffering and loss of amenities , :.. Second Claimant $15,000.00 5. Special Damages $ 4,400.00 I 6. ICosts tq be prescribed costs at the appropriate rate which I hope Counsel ; !! would be able to agree. i

[65]With respect ,to the Ancillary Claim made by the first and second Defendants, the Claim standsidismissed.

Mar aret Price Findlay

I, High Court Judge

i I, IN THE SUPREME COURT OF GRENADA AND THE WEST INDIES ASSOCIATED STATES HIGH COURT OF JUSTICE , (CIVIL) CLAIM NO. GDAHCV2008/0038 BETWEEN:'

[1]PRICE FINDLAY, J.: On the 5th November 2006 the Claimants were passengers in ajvehicle driven by the second Defendant along the Springs Public Road. The vehicle was travelling in the direction of Springs, away from St. George’s.

[2]The Isecond Defendant was on her way to the Open Bible Church in Springs. She, II ‘ in her evidence, said that she could not recall how fast she was driving (in terms of I. mph), 20 – 25 mph, could be more, could be less, but up to the point of Dafeau she was driving on the left-hand side of the road. I , ‘”

[3]There was akingle vehicle ahead of her. That vehicle made a left turn into Dafeau Gap: The second Defendant left her side of the road overtaking the vehicle in front of her. 'She went over to the right side of the road. According to her, the collision took place some 5-6 seconds after she overtook the vehicle in front of her.. In cross~examination she stated that when she just saw the third Defendant’s vehicle she was on the right side of the road overtaking another vehicle.

[4]Thethird De~endant was also travelling on the Springs Public Road, but he was heading in the opposite direction to the second Defendant. The third Defendant was travelling towards St. George’s.

[5]The collision took place in the area of the day care, which is attached to the Open Bible Church. The road is not straight. In fact, it was admitted by all parties that ther~ is a sliQht bend in the road and it is a blind corner of sorts in that one cannot see Ithe oncoming traffic in either direction for a period of time in the area of the collision. i

[6]The: third Defendant had a passenger in the front seat of his vehicle; she, fortunately, sustained no injuries as aresult of this collision. i· I: … .. .

[7]The two vehicles approached the Open Bible Church from opposite directions. The second Defendant says that she heard a loud noise like the sound of a motor . I vehicle comi~,g in the direction of her car. The first Claimant described the noise she heard aS "sounding like a plane". In her cross-examination she said, "I heard I a noise sounding like a plane." This was the vehicle driven by the third Defendant. Shel’describe’d the noise as being like when a plane taking off – a very' lo’ud noise. She1said that within 2- 3 seconds of hearing the noise, the two vehicles collided. . I’

[8]Shesaid shel,heard the sound "pow-dow-pow". She described the third Defendant I as driving very fast and that he was driving in the middle of the road ..

[9]Theifirst Claimant did say in cross-examination that the second Defendant was driving fast but could not say that the second Defendant was late to collect her I , i, II 2 husband and the second Defendant denied being in a hurry or being late to collect her husband..

[10]Thesecond Claimant could give no testimony as to the accident as she was asleep in the back seat of the vehicle driven by the second Defendant. She did not see the accident; she only awoke after the collision had taken place.

[11]The third Defendant in his evidence says that he saw the vehicle of the second Defendant approaching him on his side of the road. He says he swerved away and stopped in the middle of the road to avoid the collision, but the cars collided.

[12]The witness Nigel Morain was travelling behind the third Defendant on the Springs Public Road on the day in question. He said he noticed that the third Defendant mas,h brakes; so hard that his back wheels started smoking. He further said that when the vehicles collided that the back portion the third Defendant’s vehicle "lifted I off the ground for a few seconds and went back down". I

[13]Beverly St. John, the passenger in the third Defendant’s vehicle said that she saw a Pajero Jeep coming towards the vehicle she was in on their side of the road. p :.

[14]Garth St. Bernard said that he heard the noise of a motor vehicle coming from the opposite direption of the second Defendant’s vehicle. He was on the balcony of the Open Bible Church and had a clear view of the area of the road where the ; : collision too~! place. He admitted that he did take his eyes off of the second Defendant’s vehicle because he did not see her overtake the vehicle at Dafeau Gap'; He' says thatat no time’did he see the second Defendant’s vehicle on the right side of the road. This is not accurate as the second Defendant admits that she ventured onto the right side of the road in order to overtake another vehicle. I I,

[15]Importantly, ?e said that the third Defendant was driving at a very fast speed, he said approximately 80 mph. He went on to say that the third Defendant’s vehicle i: I: appeared to be swerving and out of control. He admitted on cross-examination that '80 kph was much slower than 80 mph. He also said that he was not a prof~ssional ~o say that the third Defendant was travelling at approximately 80 I' ,, ” ‘~”. “-,’ ” mph. He did say that he saw the vehicle of the third Defendant "dragging", that is when one is mashing brakes. This dragging went on for about five seconds. He also said that the speed of the third Defendant’s vehicle did not significantly reduce at the time of the collision.

[16]Further to the viva voce testimony in the matter, the Court had the benefit of the police report and the measurements taken at the scene on the day of the accident.

[17]The road surface on the day in question was dry, flat, smooth and gently sloping towards the direction of Woodlands. Visibility was not good in both directions.

[18]There were brake impressions measured with respect to the vehicle driven by the third Defendant. They were as follows:­ Braking impression of right wheel to point of impact – 47 ft. I Braking impression of left wheel to point of impact – 60 ft. There was no record of brake impression with respect to the vehicle driven by the second Defendant. I CONCLUSIONS (FACTUAL) I , , I

[19]Having reviewed all of the evidence adduced in the matter by both parties, I find as afact that: I, Ii (a) The second Defendant was driving along the Springs Road and overtook a vehicle which was ahead of her, turning into Dafeau Gap. (b) In order for her to carry out this manoeuvre she had to cross onto the right side ~f the road, I~aving her left and proper side. I' (c) That i: she had not returned to the left and proper side of the road completely prior to the collision. I , (d) The third Defendant was travelling in the opposite direction of the second Defendant, also on the Springs Road. II I_ ” 4 I_ _. __ (e) The third Defendant was travelling at an extremely fast rate of speed. (0 The third Defendant left 47 ft. and 60 ft. of brake impressions on the road leading to the point of the collision. (g) Judicial notice is taken of the fact that the area of the accident is a blind corner and that the parties involved in the accident only saw each other within seconds of the collision. NEGLIGENCE

[20]"Negligence is defined as the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do." – per Baron Alderson in Blyth v Birmingham Waterworks [1856] 11 Ex 781 at 784.

[21]The elements i of negligence are well established ­ I:

[22]All drivers on the road owe a duty of care to other users of the road, whether in i : vehicles or o~ foot. In order to achieve this the driver of a vehicle ought to keep a proper lookout, observe the rules and signs of the road and avoid excessive ! I; speed.

[23]"Although it does not necessarily follow that negligence is to be imputed to a driver Ii I· ” .. . who breaks the speed limit, there is no doubt that evidence of the speed limit being broken may provide evidence of negligence." Grealis v Opuni [2003] EWCA Civ.1F.

[24]Given all’the’attendantcircumstances here, the slight uphill path, the blind corner which the third Defendant was approaching; it required a greater degree of care than that exercised by the third Defendant on the morning of the accident.

[25]"It is also well established that the onus on the driver of an overtaking vehicle is to make sure that the entire movement is safely conducted and completed." – McCall v Ogiste [1965] 9 WIR 291. "One must make sure that one can pass the vehicle and' get back at once to the proper side before the approach of oncoming vehicles." McCall v Ogiste (supra).

[26]Again, taking into account the conditions that existed at the time of the collision, a greater duty of care was required of the second Defendant in carrying out the manoeuvre she attempted that morning. !, ‘

[27]I fin9 that neither the second or third Defendant exercised that degree of care that a re~sonableland prudent driver would exercise in the circumstances.

[28]I find therefdre asa fact that both drivers were at fault in the collision; and I apportion the~ blame equally. ” PRELIMINARY POINT

[29]Counsel for the third Defendant raised a preliminary point with respect to the medical repQrts tendered by the Claimants. He took issue with the Claimants' attempt to rely on certain medical reports, that is, the reports of all the medical praJtitioners in thematter.’lh’ support of his submission he cited CPR 32.6 and also l submitted that the Claimants had failed to comply with the relevant rules. I : i

[30]Part 32.6 of the CPR states: i! "(1) , A party may not call an expert witness or put in the report of an expert witness without the court’s permission. I’ (2) The general rule is that the court’s permission is to be given at a case I management conference. I ,. ..’ …. (3)' When aparty applies for permission under this rule ­ (a) , that party must name the expert witness and identify the nature of his or her expertise; and (b) any permission granted shall be in relation to that expert witness only. (4) The oral or written expert witness' evidence may not be called or put in unless the party wishing to call or put in that evidence has served a report of the evidence which the expert witness intends to give. (5) The court must direct by what date the report must be served. I (6) The !court may direct that part only of an expert witness' report be disclosed."

[31]But Part 32.6 must be read along with Rule 8.7 which states that the Claimant must identify or have annexed thereto acopy of any document which the Claimant considers to be necessary to his or her case.

[32]It is Glear that here the Claimant did attach the report of Dr. Dragon to her claim as required by the Rules. The physiotherapy report was not prepared and the treatment no~ given until after the filing of the claim, hence that report was not attached at the time of the first filing. I, I

[33]In any event,’the onus then switches to the Defendant via Rule 10.6 of the Rules. If the Claimant has attached a report from a medical practitioner to the claim form or statement of claim, the Defendant must state in the defence whether all or any part of the medical report is agreed and if any part is disputed, the Defendant must , state the nature of that dispute.

[34]This. Rule puts the onus on the Defendants to state specifically if they accept the I 1 rep~rt and, if not, to state specifically the dispute that they have with the report. This is to allow the Claimants to know before the Case Management Conference !’ ” . what, if any, ~dditional evidence they need to call in terms of proving the claim for personal injuries.

[35]If the Claimant is aware of the disputed areas it allows for the Claimant to know that. the evidence of the medical practitioner is necessary by way of witness statement, and it alerts the Claimant that the medical practitioner ought to be made available for cross-examination (if necessary).

[36]The. third Defendant in his defence did not state that he disputed the contents of the medical report attached to the Statement of Claim, nor did he state the nature of any dispute that he may have had with the report.

[37]He only raised the issue at the opening of the trial. The third Defendant has failed to comply with Rule 10.6 and cannot now raise the issue as to whether the Clai~ant can, rely on the report of Dr. Dragon. The Court finds that the Claimant can ,rely on t~~ report of Dr. Dragon attached to the Statement of Claim.

[38]In vi~w of th~ fact that the report from the chiropractor was obtained after the filing of t~e claim,I the Rule would not apply and the Court will consider all medical , I reports submitted on behalf of the Claimants in assessing the relevant amount of , ‘ damages du~ to the Claimants. The weight to be attached to the relevant documents is a matter to which the Court will address itself when damages are . i. being assessed. GENERAL DAMAGES

[39]Having decided that the first and third Defendants are equally liable for the dam,ages su~~ered by the Claimants, the Court must now assess the damages. Theguidelin~s set out in the case of Cornilliac v St. Louis [1964]7 WIR 491 – Sir Hugh Woodirg, CJ. set out the criteria to be considered in assessing general damages. These are: – The nature and extent of the injuries suffered. I.- The Inature and gravity of the resulting physical disability. I I • Pain and suffering. • Loss of amenities. .• The extent to which pecuniary prospects were affected. SPECIAL DAMAGES

[40]The first Claimant claims that she has expended monies on' medical bills con~equent ~pon the accident. These expenses were as follows:

[42]Whil:e the inj4ries in the.,~~thorities vary and none is on all fours with the injuries in , ” the present matter, it is important to compare the facts in those cases especially as it:relates to the seriousness of the injuries suffered by the first Claimant.

[43]Dr. Kester Dragon’s report of November 7, 2007 sets out the injuries the first Claimant suffered as follows: • The left leg was grossly deformed and swollen. • Tenderness was elicited OD palpation over the proximal tibia. • Left knee effusion • Anterior chest was tender on palpation over the sternum. • X-rays of the left leg showed a complete comminuted fracture of the proximal tibia extending to the joint. . II. “. ” “. -‘” ,”” – _… . , ..

[44]The’,doctor concluded that she had the following injuries: a. , Sternal contusion I I: b. Displaced intra-articular fracture of the left proximal tibia.

[45]Shelwas operated on, an open reduction of the fracture was done and the leg immobilized in plaster of Paris. j.

[46]She was adr:ninistered with analgesics. Anticoagulation therapy was used and intra’venous ~~tibiotics were administered. Physiotherapy was started. II

4.I. Transportation costs 2040.00

[47]After her discharge from the hospital she had persistent swelling of the left knee and 'leg.

[48]She had further surgery in August 2007 for manipulation of her left knee as flexion I II l ‘ and extension of the knee were limited.

[49]Dr. Dragon did promise a supplementary report, however, none was forthcoming. i

[50]The :report onhe physiotherapist Ben Wallis is dated 8th October 2008, almost two years after the accident. The report details that the first Claimant complained of constant pain, and pins and needles over her anterior knee, laterally down her calf, anteriorly over the ankle and into the arch of the foot.

[51]The therapist found that she had limited flexion of the left knee and she could fully weight bear on the left leg with some pain. He found that after several sessions of therapy her symptoms showed little improvement and he was of the opinion that she ,may have reached her full potential. She had home exercises which she had to do.

[52]Dr. Pelham Mc Sween in his report indicates that he first Claimant has a short left leg, and that her physiotherapy would continue for another six months from the date of his report (January 2009). Ii i, . . –. – —–..– —.

[53]As aresult of, this accident the first Claimant said in her evidence that her quality of life had changed. She is no longer an independent, sexually active female. She can ,no long~r,I jog, which she used to do daily. She can no longer help herself , around the house in the manner in which she did before. She has gained weight. She is depressed. She says she is in constant pain. Her daughter testified to her I, I···· .” . –. .. . motl1er’s crying due to the pain and her having to rub her mother’s leg to alleviate that 'pain. Sh:e now has a 10-inch scar on her leg. i.

[54]The Jirst Claimant has had to rely on friends to do her household chores, Simon Nicholas testified to going to the first Claimant’s home and preparing breakfast for her; :bathing land cleaning her for a period of time after the accident. He also I . 1 ‘ testified that her lifestyle had changed from what it was prior to the accident. She was no longer the active and vibrant person he knew. He said that he was not paid for his services. I

[55]Prior to the laccident the first Claimant worked part-time, earning a wage of $200.00 per week. She stopped working the Friday before the accident She will be disadvantaged in the workplace once she returns to work as a result of the injuries she suffered. I am of the view that the first Claimant will be able to work but will only be able to do so at a reduced capacity given her injuries. Her work pros’pects asa result might be limited. PAIN &SUFFERING AND LOSS OF AMENITIES

[56]She will not be able to play netball or jog as aresult of the accident.

[57]I have looked at the various authorities and as I indicated earlier, no case is on all .. fours with the present facts. However, having considered all the relevant factors placed before the Court, I would assess these damages at the figure of EC$80,OOO.00.

[58]The pecuniary prospects of the first Claimant are not dim but they are not as bright as they would have been but for the accident. She has been left with a shortened ! . left leg; she 'is in constant pain; she cannot sit nor stand for long periods; she walks with a limp. It would seem that these things will put her at a disadvantage when she seeks work in whatever area she chooses so to do. She will certainly not be as mobile or agile as other workers. Given all the uncertainties and taking I into account the material before me, I assess these damages at aglobal figure of !, 1 EC$25,OOO.00.

[59]The’special damages of $4,400.00 as claimed for her medical expenses would be awarded but !as she was unemployed at the time of the accident no award would I be made for that period for loss of earnings. I

[60]Interest will ble awarded on the sums at the rate of 6% per annum from the date of the filing of the Claim Form to the date of trial.

[61]Of cpurse, the first Claimant would have had to pay someone to care for her after the accident. IShe was unable to walk for a period of approximately 24 mqnths and was,on crutc~es for a considerable period of time. She needed help to bathe and otherwise care for herself. She should get some relief under this head. I am of I I II' the view that $1 00.00 per week is not an unreasonable sum, and I would therefore award the sum of EC$1 0,400.00.

[62]With respect to the second Claimant, no medical records were tendered on her behalf but there was evidence of her pain. She testified to having a twisted jaw, to pain in her jaw, headaches which continued for aconsiderable period of time. She also' testified about her performance in school and how it suffered due to the accident.

[63]Having reviewed the evidence I would award the second Claimant the sum of EC$15,OOO.00 as general damages. with interest to run on that sum at the rate of 6% per annum from the date of filing the claim to the date of trial.

[64]The total award is as follows: I :

[65]With respect ,to the Ancillary Claim made by the first and second Defendants, the Claim standsidismissed. Mar aret Price Findlay I, High Court Judge

1.BERNICE JEREMIAH TALITHA JEREMIAH (By her mother and next friend, BERNICE JEREMIAH) Claimants and

1.ROYSTON GILBERT

2.GLENNA GILBERT

3.PETER GILBERT Defendants Appearances: Mrs. C. Edwards, Q.C, with her Ms. Sabrita Khan for Claimants Mrs. Afi Ventbur de Vega for first and second Defendants Mr. Derick Sylvester for third Defendant i: , 2010: January 11,13 February 18 JUDGMENT FACTS I!

1.The existence of a duty of care I, The breach of that duty of care by the defendant

3.A causal connection between the defendant’s carelessness and the damage ‘. I:

4.The damage must not be too remote

1.Medical report $400.00

2.Physiotherapy 500.00 ,.

3.Consultations 1500.00

5.Loss of income 9200.00 The first Clail;nant in this matter suffered significant injuries and while the injury to II her daughter was not as serious, nevertheless they were painful injuries. I’ [4 ‘I] I wish to express my thanks to all Counsel involved in the matter for the authorities which were submitted to the Court. I was referred to, among others:- . i ChristopherFlermius v Andre Solomon &Fimber Louis – SLUHC2002/1041 Mohammed v Supersad Bacchus v Mohammed Randy Oliver v Godwin Keir &Lennox Parsons – SVGCV1998/215 Sharmala Pereira v Reginald Mills – SKBHCV2004/0038 Marcel Fevrier & Jenny Fevrier v Bruno Canchan, Asphalt Product et ai, the succession of Joseph Felicien – SLUHCV1989/313 I· ” !! . . I! , ii

1.Damages for pain &suffering and loss of amenities First Claimant $80,000.00

2.Lost pecJniary prospects – First Claimant $25,000.00

3.~om~ ca~~ -: Firstq~irn,~f.l.L … ” …,. $10,400.00

4.Pain &Suffering and loss of amenities , :.. Second Claimant $15,000.00

5.Special Damages $ 4,400.00 I

6.ICosts tq be prescribed costs at the appropriate rate which I hope Counsel ; !! would be able to agree. i