FENTON AUGUSTE v FRANCIS NEPTUNE

c.. 1,. ' •. "'-)'" ',.' ;-, , 0-;.1 \ y ..ov..Y. ~'O<..~ ""1' " \ . I. " _, J"./ '" ~~ #032 ~ r till t/ ~ SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 1996 Suit No. 205 of 1994 BETWe'F:.J" : FENTON AUGUSTE Pl aintiff and " FRANCIS NEPTUNE Defendant Mr . H. Deterville and Mr. S, Ant hony for Plaintiff Mr . D. Theodore for Defendant ,. I ' 1995: 1996: November 24; June 17 and 18; July 31. J U D G MEN T MATTHEW J. By writ of summons indorsed wi eh seae e mene o f clai~ and ~i:ed on March 29, 1994 the Plaintiff cl almed damages fo r personal _ ~Jurle s a nd related costs arising :rom the overtu r ning 0: a ve:-:i.cle in which he was being driven on June 18, 19 93 . The uefendant entered a ppearance on May 10, 1994 and :iled a defence on October :4 , 19 94 in which he denied l iability and by a late . . , the ar1ie':-:CI71e11t:. ctur'::' 11g ,~~ yr ,.-... .,....., \ .......... .1 ~!-:e t rial he alleged contribut ory negligence ~C1. ..:.... '-.. ,.....:.: ::::.he \ Pl aintiff. As a resul t A r e,quest for hearing was fi led on February 7 , 199 5 . of the a c cident which occur:::' c ,i -..:~: :.:::he =:e:l',c.Lj ~rasli n ~igh road t he Plaintiff was hospitalis e d for six monc hs , Dr. Richardson St. Rose a t tended to the Pl a i n e:" f : , He sa id he first saw t he patient on July l, 1993 whe n :ound the frac tured dislocation of the eleveneh and :we lf:h vertebrae which resulted in a compleee s pi na l cord transecc~on and paraplegia. He said the spine was stabilised by a posceriar spinal fusion situ. The orthopaedic st:at: condition resulted or will result the following: a) confinement to a wheel chair; b} ':"ncont:ineLce; constipat:icn foecal ':"ncont:~nence; d) recurring bedsores; Ie) recurring ~ow back pain. _-!2 said situation will e Dermanent and ?la ~f'f' 11 noc '< He sa ?laintiff wlll no cont:ro over s c:owel.s or s urine 0"" d~ wil=- not De e t:o look after If ter ne urinat or passed st:ool. said the Datient: will have t:o be well -0 avoid t: frequency of sores. He sald he 11 need to wear s ':"ncontinence and he -; -: -- I ~~ a ~ , , , :1lS ur:.ne em. ~-nder an ext i cross- nat:ion he said: liT am 100 Der cent: sure 1.1. not walk aga When he was re-examined the surgeon stated that one is a condition t is occasionally a lot of severe pa He so sated t t:he aintif: co be properly taken care or he neea regular nursing care :or :1::e :::est: of ., ....,' r- :1lS .-2..:e, ..... s, to seen someone as a nurse or doctor once every wo or ~ont:hs and he would need someone to look after s personal ene a dai basis. che vehicle on t:he ,~ ~uestion was ?laint:i=: wno was ~tting 'n the left front: of ~he vehicle, the ~ef on _he r':"ght hand side and cet:ween them was ?risoa, he ?lalntiff's rl:riend who is che Defendanc's daughter. According co the Defendant: on he day ':"n ~uest:ion ~ ~ent:':"oned above -eft the home f the Plalnt:iff's ~ot:her 5.30 .~. and proceeded past e In che er ~ennery when something happened there. He said when he took corner met motor car and a container vehicle and the car was overtak the container. He said he was::::loser to ?raslin was fac coud. He said met the -wo on-coming c:es :n t corner and when saw the speed t car led - "Jan to t cravel and he was f~:0htened at the time. He =ammed his sand the van capsiz on the eft side. He said he was travell miles per hour ~0~ore saw the two cles. He s aintiff was sleep at the time and was slee1 as ar as ~a Cail':e. ~hen he went. OIl to say - The reason why - left "eft side. There s a prec ice on ~ne eft hand side and _ gravel was ~ my van to the precipice so T =ammed my brake, the stones turned t cle and then it capsized on the hand si He stated that after the accident a friend arrived and ~ lifted he van to remove the ?laintiff from underneath. The ?la iff was aken to the Dennery ~ospital then :ater transferred to the c a Hospital. ?risca is in Martinique ane d not evidence. other eye witness was the ?la ~~~ His account is t the Defendant s driving :n the direct~on ~i Rocher, coud but not reach ~~ Rocher, Micoud at all. He said t passed and approached the ?raslin ~~ when he saw the van go out of control and went ~p the hil: and ove and this resulted he damage to his spinal cord. He said the van t~rned over on a traight road. He said he used to drive a motor vehicle before and 11e est the d f _lie Defendant on the and t cuestion as between 55 and 60 miles per hour. He said was no other vehicle coming at the t ana there was no cle approaching from behind. He said _ her that :1e was travel:ing :.n _lie van on tlie ",,-eft s de and the van turned over on the hand side. d there was n0 container on the road before the accident and t van which he was driving was a pick-up. ::.e was .10C spared a mauling cross-examination and st up co it rably. He denied on seve occasions t Ie ~n the van "/Jas dosing off from time to time or that n!"en t.he acc::.. was sleeping. He s~~d he did not see any conta cle or car approaching them. He reiterated that .• e saw van out of contrc and did look at t.he speedometer w~icn re tween 55 - o. He admitted he did not miles but he saw "55". He aid he did not know whet.her one kilometer is 5/8 of a Ie ed that the Defendant was driving less than 30 les hour. T might interj ect here that even , ~ t. ~ s held :Jef was ravelling at lometers, if a kilometer ~s 5 8 f a mile, would have been travell at over 34 miles r _ find that the Plaintiff was not at any t.ime ~n the journey ing f and I find more specifically that was not sleeping at time of the accident. C too that re was no ~~affic in the way of the Defendant and there was neither onta car which put him inca any situation as a cause the accident. fendant in s own examination in f r1~~ \...0,. ....... \...0. not say :J.e was iving less than 30 les per hour. He said I was ravell about 30 les per hour before saw t. t.wo vehicles. II .::l.nd was cross-examined he said: The reason did not. stop t cle ::..s e _ t.oo much speed.

1.am of t.he view that the sole oause of t accident. was excessive speed of the Defendant which prevented him from keeping proper control of the vehicle on the ~oad. _ find the :Jefendant was driving at a speed which was too _ast In the circumstances and because of t.hat he failed a exercise or malntain 3.nv concro~ of his vehicle. - accept the authoricy of NORTHROCK LTD. v. JORDINE -:..2 of ::"991 on :::.he requirements to establish t tort of igence. _ =.:na the Defendant to be solely C" e ~or the acci is unnecessary ~or me to consider co~trib~tory igence s ~ the Pl iff was not asleep at _he time f acc~ :::ven ~hat were ':)t so the Defendant would "'fic:.llty in persuading .Tle ::.hat a person who ::..s asl on a cle makes himself contributori ::..n :::vent that vehicle s into an acc::..dent and ::.he Pla "f".c is ured. is now necessary for me to i t s but - should like to refer to ~hree affi ts whi were -endered e on behal~ f ~he Plaintiff. And£ina Landers, a retired nurse, staeed in an affidavit that shu .:s engaged in providing nurs care to persons who are - and she swares that nursing care d d to the P aintiff every day for hree hours ae $20. a Dr. St. Rose, .,owever, under cross -examination stated: "For him :::'0 be ::.aken care::::f Cle d need ar nursing care, say for -he rest of his life I -0 be seen someone, a nurse ::::r doctor, once every two to ::.hree months." _lna the affidavie ::::f Andrina Landers ::'0 be self-serv and I l~ei eeL it. shall mak provls::..::::n ""::::r :lursina care but en:ainly not ::..n terms f .. er affidavit. ~he second deponent was ~homas Walcoe t, a if ci vil and structural engineer, who estimaeed that =:::: alter the access to the laineiff's home to facilieaee a wheel c ir would cost $49, 45.82 in addition to $3,234.56 for cose :'1::" S services. _ do noe 1 any of the witnesses describing ::.he house In which the Plaint:iff lives. I rat:her suspect it tu be a el s :'t: was stated that t:here is no :'nternal bat one onsiders the vulnerabilit:y of such houses :'n a cane area I wonder whether it would not: be Dossible for t:h~ t:o own away _eaving :'nt:act t:he extravagant service almost: be the val~o of t:he house. ~ reject that laim or my "iew the average mason could build an adequate wa :or r.ot More -han S10,OOO. ~he deponent, Terencia Gaillard, states hat she ~s famil wi th the prices of wheelchairs and she s t: a lchair table for the Plaint:if: would cost US$595. this who is Director of the Red Cross Socie sited the la ,~~ at: t:he ctoria Hospit and avai e t:o him the wheel chair which he now uses. s is a most e cl ch T shall grant: in due course. An abundance ~~ vL cases ~as cited and I do not propose t:o hem all or even to ref2r to all of them. I am also not go to undertake any economic or statistical ana is of t: cases, without price index, in r for me to dete the of s which ~ regard as appropriate for the P if consideration of general damages in persons 1 ury cases o begin with a reference to the well known case of ceRNILLIAC v. . LeUIS (1965) ~'J._.R. 491. In that: case Sir aid down the considerat:ions which properly to be borne mind :'n assessing t general damages as t:he :01 owina: a) t:he nature and extent: of the uries susta b) the nature and gravity of t:he resulting disability; c) pain and suffering; _oss of amenit:ies; e) t:he extent t:o which pecuniary prospects were affected. These considerations have consistently ::::e to in '-·ases. They were mentioned in JULIUS COOLS v. ST. LUCIA i\GRICULTTJRISTS ASSOCIATION LTD, a case decided Pete 0 " , ~~f ::"974 and they were ment .in GODFREY t. Lucia on June ILBERT v. CARLTON SAMUEL, a case ~ _n Sa ent on tober ~9, ::"990. These two cases wer~ c cases. n che p::::esent case here .is ClO doube cnat t l?laint.iff will ::::emai~ .iCl that condit ~or the rest of s life and t is no dence of loss f expectancy of life. :he l?la iff have 40 more years working life. esides Cools and rt _ cons th::::ee other leqic cases .1 DE SOUZA "J . TRINIDAD TRANSl?ORT ENTERPRISES LTD. ~o. (1971 8 W. I . R . 13 8; AZ I Z AHAMAD LiD. v . RAGHUBAR; 1 67) "2 'V'l. ~ • R. 3 52 RAMCP~RAN v. LUTCHMANSINGH irinidad H.C.A. ~o. 731 f 1978. The case which most resembles the present " '" -'" GILBERT v. SAMUEL. Having regard to ,-he cases refer to dence in this parti case T award the l?la iff s che sum of $55,000 to cover the first four consi .ions referred to by Sir Hugh Wooding iCl CORNILLIAC. ihe fifth consideration is a pecuniary head. As learned Counsel for the Plaintiff quite r ly said, after T considerat t first four , the other calculations are arithmetical. In the consideration of "oss of e the Court must ::::esort co f s ed on the contingencies of _ife. Resort :'s to the mult ier/multiplicand form of calculation. Mult liers and tiplicands were adopted in the following cases, ~o Clame a few: TiE Q0TT7,A v. TRI~IDAD TRANSPORT ENTERPRISE LiD ~o." "8 W.I.R. ::"38. .:,\ZIZ AHAMAD LTD. ~J . RAGHUBAR ::"967) ::"2 W .. R. . ~ , ~ -I.c... • 355. In GRAHAM v. _ W.I.R. 808, :.r • the House of Lords assumed that a mUltipl of 18 in the case of a adwinner between 20 and 30 d n8t be censidered excess MORIARTY "'"r ~ MCCARTHY -978 2 AER 213, anet c case, in the case ef a weffian ef 24, it was 'CONNOR J, that the case 8f a yeung man aged 24 a mult ier f 15 d been apprepriate cal ating the damages _8r ess ef ea~n n HUNT v. SEVERS 1994 2 WLR 602 ere at first tance assessing ~he cest ef future care and :ess f s eek an everall mult li~~ f 14 en a life ancy ef 25 years. ~he Ceurt ef Appeal increaa the tier te " r 1...::. :'he Heuse ef did net disturb that facter i:1 the case. In t ircumstances f s case - s a mult ier f 5 as frem he e of t~ial. But ene must find the apprepriate multipli T believe t the a iff's real wages was $200 a fertnight er $4 a menth. aintiff had net get a secure jeb may well have b~en seasenal er upen harvest ~he fertunes f bana~a a£mers vary a:1d se must their 3esi s :: sturbance by sterms seme peeple new reserted ~e metheds ef 1 because f the uncerta f the try. I weuld arrive at a mult Iicand ef $2,500 per year. est e ef ess ef future earnings weuld therefere be 537,50 . Anether head ef general damages d be cest f nurs are. Under ~his head _ s 1 c8nslder an apprepriate allewance er the Plaintiff's mether, -he cest fer the cccasienal isit bV a nurse er decter, an ameunt fer medicine and the cest f pampers. As seen abeve, lewance er future care was ed In Hunt v. evers. :'he same was the case in RAMCHAR~~ LUTCHMANSINGH and again in LIM POH CHOO v. CAMDEN At"JD - SLINGTON "2\REA HEALTH AUTHORITY 1979 2 AER 910, ::-:. LJ. I a case where a senier p atric strar suffered cardiac arrest and irreparable brain due e the negligence ef a ital centrell by the ~ef health autherity. ~he Plaintiff's no permanent em~ is a end vendor of f ts. also to ~ook after her si ~er other son lton s at horne doing ically "Hould allow !:'.er 81 0 a :nonth for t extra att to laint:":';:::+: .................. would allow 8300. 0 a year for the occas :ioct:or's si~ and c s. wou..La llow J..L; a year for pampers. ~hat would ~n my est ion amount to 4 ,5 foY' nu::s ~:::are . ~he o~a ral s would therefore be $133, ~ now t:urn t:o the sperial damages. ~he first: it:em to consi would be approximately 36 empl lost from e of ~he ace ident: to t te of trlaJ... ::Cor ::hat ::elative period -'d use ~he actual wages of $4 0 a :nonth ana so :: tot earnings lost would be $14,400. ~he at 1,2 0 a would be $ 3, 600 and the amount for's care d ::"ikewise $3,600. I would low t ation costs f $1, 0 for the visits to ::he ital by the?l iff's :rlOt and the ?laintiff himself uI.der cross-examination as ::0 amounts paid he subsequent sited t ital said. T paid ence. Y shall allow the Plaintiff the $60. O. T shall allow the costs of the wheel r as ously stat and t s _ ca culate to approximate $1,600. _n a ::"ocal case, LINDA::::F.ARLERY v. RISCA ALCEE, SUlt No. 190 of _984 and decided on December 1986 at '-:< awarded ?laintiff 20 per cent: of S25, 00 which _ assess to be he tal cost: for new acccmmodat:ion. award the ?laintiff S1 ,:0 for cost of the service walkway ::eferred to in ~he evidence as a ?inally, there ~s the cost of medicines. ~hen hp a~ve evidence t ?laintiff ::endered wit:hout objection ::wo sets of rece s :nedicines and/or pampers the amount:s of $495.00 and S14.75. His :nother, iheresa ~ark, ::endered three exhibits for :nedicines. The -ot:al amount for medicines in i.M.l and ~.~.2 was S360.29 and ~.M.3 was _ $45.69 from which was deducted S15.25 for deodorant spray aquafresh. The total amount for cines was t fore 01.28. mt calculation the speci damages would amount :0 535,l61.28. there are t stions of 'T I. S . tions Eind income ~ax as well as interest. ("' T C~. U • ~OHNSON BROWNE (1972) 19 W.I.?. 382 as Court of Barbados stated at 31:5 that h on 3.uthorities and on princ Ie :.t appeared ;:0 h tax e ement and national insurance contributions must ~e count in assessing loss of earnings. T that case the Plaintiff was an employee of Mr. ~an ock there was evidence of his liability to tax to pay nat e contributions. In t s case the only on matters arose in cross-examinat of ~he PI ntiff wnen sa "I was going ~lome with whole of :he $3 O. were no deductions 1 N.I.S. from it. T my judgment : lS no or basis upon _ can tions for income tax and N.I.S contributions. T would appear that in JOHNSON v. 3ROWNE AT PAGE 392 interest at the rate of 4 per cent was awarded on :he damages for loss of from the date of the service of the writ untll QE SOUZA V. TRINIDAD iRANSPORi ENiERPRISES LiD No.2, ~I'j. I. R. 150 it was held tha: a claim .....or interest :1eed not be p eaded and that the ;:J l ' ~ f'';:: ~~alncJ..J..J.. was entit'ed co interest. on the special damages. order is that the Qefendant. 's ordered :0 pay he Plaintiff: i) General Qamages $133,,]00; (ii) Spec Damages $35,161. 28 i (iii Interest on the Special s at 4 per cent March 29, 1994 to sand Costs ~o he agreed or taxed. A.N.J. MATTHEW sne

Suit No. 2005 of 1994 MATTHEW J. Delivered: 31/07/96