1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN AT GEORGE TOWN Cause No: 46212003 BETWEEN: BRENDA ARCHER PLAINTIFF AND: UBS(CAYMANISLANDS)LlMUTED DEPENDANT Appearances: Mr. Howard Hamilton Q.C. and Mr. Barrington Frankson instructed by Ms Keva Reid for the Plaintiff Before: Heard:
Mr. Nick Dunne of Walkers for the Defendant Honourable Justice Charles Quin Q.c. June: Thursday 11'· & Friday the 12'· and Tuesday to Friday, the 16'·, 17'", 18'· & 19th• JUDGMENT On the II t. of July 2003 the Plaintiff, Mrs Brenda Archer, issued a Writ of Summons and the indorsement of the writ stated that the Plaintiffs claim is: a. As a former employee under a written contract of employment and an Acceptance and Release with the Defendant, UBS (Cayman Islands) Limited dated the 9th of July 1987 and the 25th of April 2002, respectively, for damages for negligence on the part of the Defendant as employer, owner and occupier of the premises known as UBS House, 227 Elgin Avenue, Grand Cayman, (herein after referred to as "the premises") where the Plaintiff worked, for failing to take reasonable care to make the premises as safe as reasonable care and skill could have made them; Judgment. Brenda Archer v. UBB. G 46212003. Coram: Quin J. Date: 23.09.09 Page 10/51 1 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 b. For damages for personal injury and consequential loss and/or damages suffered by the plaintiff on the 13 Ih of July 2000 wheu, whilst at work, she slipped and fell while walking down an uncovered cement staircase at premises owned and occupied by the Defendant; c. In the alternative for damages for breach of statutory duty imposed on the Defendant by s.58 and s.60(d) of the Labour Law (2001 Revision) in failing to ensure so far as is reasonably practicable the health, safety and welfare at the workplace of the employee - the said Brenda J Archer.
On the 25th of July 2005 the Plaintiff filed her Statement of Claim in which she claimed damages for injuries, loss and damage by reason of the breach of statutory duty owed by the Defendant to the Plaintiff pursuant to s.58 and s.60(d) of the Labour Law and by reason of the negligence of the Defendant, its servants or agents.
The particulars of negligence alleged m the Statement of Claim are that the Defendant: a. Failed in its duty to take any or any reasonable care to see that the Plaintiff would be reasonably safe in using the premises; b. Exposed the Plaintiff whilst at her place of work to the risk of damage or injury as a result of an unsafe staircase of which the Defendant knew or ought to have known; c. Failed in its duty to take any adequate or effective precautions to ensure that the staircase was safe and would not cause injury to the Plaintiff; Judgment. BrendaArcherv. UBS. G46212003. Coram: QuinJ. Date: 23.09.09 Page 2 0/51 I 2 3 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25
d. Caused or permitted the staircase to become or to remain in an unsafe and dangerous state; e. Failed in its duty to give the Plaintiff any or any sufficient warning of the state and condition of the staircase; f. In all its circumstances failed to discharge its common law duty of care to the Plaintiff as well as its statutory duty to her under the Labour Law in breach of the said Law. The Plaintiff in her Statement of Claim claimed for damages and for pain, suffering and loss of amenities resulting from the injuries she sustained in the slip-and-fall accident, as well as for psychological damages. In addition the Plaintiff claims for future medical expenses, fiIture home care and future loss of income. On the 2nd of September 2003 the Defendant filed an acknowledgment of service confinning that it intended to contest the proceedings. On the 19th of December 2003 the Defendant filed its defence which, inter alia, denied that it was negligent and or in breach of statutory duty as alleged in the Statement of Claim, or at all, and further expressly denied that the injury the plaintiff sustained was caused by any negligence or breach of statutory duty on the part of the Defendant, its servants and agents. The Defendant averred in its defence that the injuries the Plaintiff may have sustained as a result of the alleged accident were exacerbated by the treatment the Plaintiff received from both Dr Volivu and or Dr Kantrowitz, and that any alleged injury from which the Plaintiff continues to suffer was caused, and or exacerbated by the said treatment. Judgment. BrendaArcherv. UBS. G46212003. Coram: QuinJ. Date: 23.09.09 Page 3 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
In addition the Defendant averred in its defence that any injuries, loss and damage, as the Plaintiff might prove at trial, were wholly cansed, or, alternatively, contributed to by her own negligence in failing to exercise proper care and attention when lIsing the said stairs, and further, by being inappropriately attired. FACTS On or about the 13'h of July 2000 the Plaintiff was in the process of leaving the Defendant's premises by using the rear stairs. The Plaintiff was going down the rear stairs from the first floor down to the ground floor when she slipped and fell, sustaining scrapes to her right elbow and hand as well as injuries to her back and her ankle. The Plaintiff said that she did not remember whether her left or right foot gave way, but she hit her bottom on One of the steps halfway down the flight of stairs. The Plaintiff in her evidence stated that it was a concrete staircase of a grayish- bluish colour. She said in her witness statement that the stairs were narrow, the steps short and high and quite different from ordinary stairs she was accustomed to seemg. Although the Plaintiff s accident happened nine years ago it appears that on and arollnd the time of the Plaintiff s accident there is some evidence that other employees also slipped on the stairs. Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J Date: 23.09.09 Page 4 0[51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I!. The Defendant has not adduced any evidence before the Conrt that the Plaintiff was inappropriately attired or in any way negligent in descending the stairs on the 13 th of July 2000.
Furthennore another former employee of the Defendant, namely Valmalee Bush Valerio, said that the rear staircase was very steep and nanow and that it was of gray cement, painted with no tiles. She said the steps were very short, or narrow, and she knew of another employee who had fallen on the same staircase and was badly injured.
Andrea Williams, an employee of UBS, gave evidence that there were no reported incidents to the Bank (the Defendant) other than one involving Dena Roberts in 2005, and that the Defendant is not aware of any incident in which Tara Goddard or Christian Albrecht ("Mr Albrecht"), or any other employee, fell on the rear staircase as alleged.
hl addition another employee of the Bank, Elaine Brown, gave evidence that she did not consider the stairs dangerous. Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J. Date: 23.09.09 Page 5 0/51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
EXPERT WITNESSES The Plaintiff called Danny Owens CMr. Owens") - an architect with OA&D Architects, a company formed in 1993. Mr. Owens had been an architect with the Cayman Islands Government and then set up OA&D Architects. He has been involved in many significant projects in the Cayman Islands. Mr Owens referred to the requirements of the Standard Building Code for the Cayman Islands (the "Code") which had been enacted in 1994. He referred in particular to the Code's requirements relating to treads and risers on stairways. Section 1007.3.1 of the Code states: "Treads and risers shall be so proportioned that the sum of two risers and a tread, exclusive of projection of nosing, is not less that 24 inches nor more than 25 inches. The height '{f risers shall not exceed 7 Y, and treads, exclusive of nosing, shall not be less than 9 inches wide." Mr. Owens noted that a rubber tile which added Yz inch to the nosing of the stair tread was not installed as part of the original construction and was added after the Plaintiff's fall. Mr. Owens confirmed that the treads and the risers were not Code- compliant and stated in his report that: "There are wide variations in the dimensions of the risers and treads such that even if they were designed as compliant when constructed they were several that were not compliant." Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J. Date: 23.09.09 Page 6 0[51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Section 1007.3.4 of the Code states: "Treads shall be of uniform depth and risers of uniform depth in any stairway between two floors. There should be no variation exceeding 3 1116 inches in the depth of acijacent treads or in the height of acijacent risers and the tolerance between the largest and the smallest riser or between the largest and smallest tread shall not exceed 318ths of an inch in any flight." Mr. Owens did an examination of the flight of stairs on which the Plaintiff fell and found that on eight of them the depth of adjacent treads exceeded 31/16 inches and on five ofthem the height of adjacent risers exceeded 31/16 inches. Mr. Owens said that under the Code these risers and treads should be unifol1n. The Code allows for some variations but sets limits. Mr. Owens' evidence was that the treads and risers are supposed to be uniform to prevent accidents and the Code was implemented to protect public safety and health. Mr. Owens was of the view that non-compliance with the Code could cause someone to fall, and that coming down the stairs was as dangerous as going up the stairs. Mr. Owens' evidence was that there was non-compliance with the Code and the differences in the risers and treads were discemable. He said small differences can throw someone off balance and that is why the Code is so stringent. Mr. Owens said that if the step is not where it is expected to be, it throws one off and can cause a fall. It was his opinion that there was a high likelihood that the Plaintiff's fall was due to non-compliance by the Defendant with the Code. Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J. Date: 23.09.09 Page 70/51 1
Mr. Owens admitted in cross examination that he had never closely examined stairs 2 as he had the Defendant's stairs hut his evidence was that he had never seen stairs 3 so "out of whack" as this one and they were the worst he had seen in 18 years. 4 5
The Defence called Mr. Brian Eccles C"Mr Eccles") - an architect and principal of 6 DOL - as their expert witness. In Eccles' examination of the premises he also 7 . d h . h fl· If·· .. 11116 16/8 • h nollce t at III t e 19lt 0 staIrs 111 questIon certam steps were or mc es 8 too high and therc were variances of a V. inch to 4IJ6ths of an inch. Mr. Eccles' 9 evidence was that the variations in the riser heights did not comply with the Code 10 and that the risers were non-compliant. Mr. Eccles also confirmed that the treads 11 were not uniform and therefore non-compliant with the Code, although not as 12 glaring an issue as the risers. 13 14
Accordingly, this Court finds that both the Plaintiffs expert, Mr. Owens ofOA&D 15 Architects, and the Defendant's expert Mr Eccles of DDL, gave clear evidence of 16 non-compliance with the Code on the stairs where the Plaintiff fell and this was in 17 relation to both the heights of the risers anld the depths of the treads. The Defendant 18 owed the Plaintiff a duty of care. The steps on the lowest flight of the rear staircase 19 were in breach of the Code. The Defendant was in breach of its statutory 20 obligations anld negligent in allowing the breach to continue. The steps should have 21 been uniform. The Court fmds that on the balance of probabilities the Defendant's 22 failure to comply with the Building Code constituted negligence, a breach of its 23 statutory duty and the probable cause for the Plaintiff to have fallen on the stairs 24 and sustain the injuries she received. 25 Judgment. BrendaArcherv. UBS G46212003. Coram: QuinJ. Date: 23.09.09 1
There is no evidence before this Court that the Plaintiff in any way contributed to 2 the fall, either in her manner of descending the stairs, or in the wearing of any 3 inappropriate attire. Therefore I find that there was no contributory negligence on 4 the part of the Plaintiff. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J. Dote: 23.09.09 Page 9 0/51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
MEDICAL EVIDENCE The plaintiff called Dr Allen Kantrowitz ("Dr Kantrowitz") - a US board-certified neurosurgeon who trained at MLT, University of Michigan and Monnt Sinai Hospital and received his Board Certification in 1991. Dr Kantrowitz said that in the first phase of his career he did brain surgery - extracting benign tumours from difficult locations in the cranium. He moved on to spinal fusion and was involved in many cases where tumours werc destroying the spine and the spine had to be stren!,>1:hened. He did this spinal work up to 1995. Since then he has heen involved in general neurosurgery covering a broad range of work, but mainly he said he had a heavy concentration on spinal fusion - doing one per week. Dr Kantrowitz's evidence was that the Plaintiff started a fall which developed a vertical velocity, and which came to an abrupt halt when her buttocks met the floor. Dr Kantrowitz described the spine as accordion-type mechanism, and with the fall there was perhaps with some twisting and perhaps with some huge spike in pressure to the disc. The Defendant called Dr Frank Smith CDr Smith"). He is licensed as a medical practitioner and registered with the General Medical Council of Great Britain and the Royal College of Physicians and Surgeons in Ontario, Canada, and the Royal College of Physicians and Surgeons. He is a registered specialist in orthopaedic surgery and Associate Professor of Surgery at McMaster University, Hamilton, Ontario Canada. Judgment. BrendaArcherv. UBS. G46212003. Coram: QuinJ Date: 23.09.09 Page 10 0/51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Dr Smith's evidence was that the Plaintiff's buttocks fell down on to the steps subjecting her to a vertical force which constituted a loaded torsion injury. There seems to be common ground between both parties as to the type of fall sustained by the Plaintiff. As a result of the fall the Plaintiff experienced pain and soreness and had to take painkilling tablets that same evening. The Plaintiff went to work the next day. She complained of a sore back and continued to take painkillers every two to four hours. The Plaintiff stated that she had been off from work sick with the flu and bronchitis just prior to the incident and did not wish to take any more sick leave at that time. The Plaintiff experienced two weeks of pain before going to see Dr Viviani on the I" of August 2000 at the Cayman Orthopaedic Centre. The Plaintiff asked Dr Viviani if there was anything he could do for her without her having to take any sick leave. He conf'mued that she would have to take some time off from work. He gave her an injection for the pain along with some medication, which helped alleviate the pain temporarily. On the 3'd of August she attended the Accident and Emergency Room (A&E) at the George Town Hospital and was admitted after x-rays and being administered pain medication. On the 4th August 2000 the Plaintiff received morphine and had a CT scan and was then given an epidural by Dr Vivek. The Plaintiff remained in hospital for six days as an in-patient. Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J. Date: 23.09.09 Page 11 0/51 1 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
It appears to be common ground between the parties that the epidural was successful, in that, it alleviated the pain for some months. It appears that the pain relief provided by the epidural started to wear off towards the end of 2000. The Plaintiff went to Miami on or about the 5th of March 200 I in order to get a CAT scan and saw Dr Kantrowitz, who, at that time, was practicing as a neurosurgeon in Miami Beach. The Plaintiff was seen by Dr Kantrowitz on the 5th of March 2001. Dr Kantrowitz noted that at that time the patient had a one-year history of mechanical back pain with left L5 features. Further, he believed that the problem would be found to be due to the diffuse annular bulge at 1A and L5 - producing lateral recess stenosis. Dr Kantrowitz felt the herniated nucleus pulposus at L5-S 1 on the right was asymptomatic at the present time. At that time Dr Kantrowitz recommended an MIR and flexion extension plain fihns to rule out any gross mechanical stability. Dr Kantrowitz examined the Plaintiff on the 29 th of March 200 I and diagnosed that the Plaintiff had hack problems which he interpreted as discogenic back pain due to degenerative disc disease at the L4-L5 level with superimposed herniated nuclens pulposus on the left lumbar at L4-L5, producing a superimposed L5 left radiclliopathy dating from her accident on the 13th of July 2000. Dr Kantrowitz's recommendations on the 29th of March, having now had sight of the MRI, were that the patient would not be well served by a simple lumbar discectomy. Dr Kantrowitz stated that he believed that a simple lumbar discectomy in this situation would leave the patient with her L5 radicular symptoms attenuated. Judgment. BrendaArcherv. UBS. G 46212003. Coram: QuinJ. Date: 23.09.09 Page 12 a/51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Dr Kantrowitz said he would be concerned that the patient would have significant back pain residual, perhaps even with an exacerbation of her back pain due to the destabilization brought on by the lumbar discectomy. Accordingly Dr Kantrowitz recommended one level lumbar fusion. He said the method he would use would be to perform a lumbar decompression at L4-L5, followed by posterior lumbar interbody fusion (the so called PLIP technique), supplemented with pedicle screw instrumentation, bridging the L4-L5 level, supplemented with transverse and posterolateral fusion.
Dr Kantrowitz recommended this procedure to the patient and asked her to consider it. The Plaintiff agreed to undergo this operation as recommended by Dr Kantrowitz.
On the 12th of June 2001 Dr Kantrowitz carried out the operation at the Miami Heart Institute and Medical Centre for what, in short terrus, would be called a spinal fusion and lumbar discectomy at L4-S.
After the operation the Plaintiff had regular checkups with Dr Kantrowitz. On the Illh of April 2002 Dr Kantrowitz confirrued that the Plaintiff had reached maximum medical improvement from a neurological point of view, and indicated that the patient could suffer from progressive degenerative conditions in the lumbar spine at adjacent levels, being the so-called junctional syndrome. Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J. Date: 23.09.09 PageJ3 0/51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
On the 6th of May 2002, approaching a one-year status post PUF fusion, Dr Kantrowitz confinned that the Plaintiff still had residual lower back pain and residual leg pain. After further checkups in 2002 and 2003, on the 12th of May 2004 Dr Kantrowitz confinned that the Plaintiff was one hundred percent pennanently disabled. He also confmned that the patient had post-laminectomy syndrome. The current lmnbar radiculopathy further confinned that the Plaintiff was not capable of working and, as it was approaching two years post-surgery, the possibility of this improving was nil.
Furthel1nore on the 12th of May 2004 Dr Kantrowitz raised the possibility of future spinal surgery - either for revision or extension of the existing surgery and that the Plaintiff would need, in the long tel1n, ongoing physical therapy and chronic multi- disciplinary long tenn pain management.
On the 22nd of November 2004 Dr Kantrowitz confirmed that the Plaintiff did suffer from post laminectomy syndrome. The patient continued to have pain in her lower back region, with some discomfort in the left leg and the Plaintiff remained one hundred percent pennanentIy disabled. Judgment. Brenda Archer v. UBS. G46212003. Coram: QuinJ Date: 23.09.09 Page 14 0/51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
No VUSA CTUS INTERVENIENS (NAI) The Defendant contends in paragraph 52 of its written Closing Submissions that in the event that the Defendant is liable, it can only be liable for the injury as it originally stood and not as the injury now is, having been worsened by Dr Kantrowitz. The Defendant submits that the lumbar fusion operation conducted by Dr Kantrowitz was not, in all probability, necessary, and was at best, very premature. In summary the Defendant contends that there was nothing about the injury the Plaintiff sustained by falling on the stairs that should render her one hundred percent disabled and unable to work again. The Defendant submits that more conservative options which often bring about significant, if not full recoveIY, were ahoost wholly ignored by Dr Kantrowitz, who adopted what the Defendant contends was an unnecessary and unjustifiahle invasive approach - treating the patient with little or no consideration given to a measured, conservative and progressive approach. Consequently the Defendant contends that the final outcome is that Dr Kantrowitz's treatment of the Plaintiff has suhstantially worsened the Plaintiff's symptoms and that the Plaintiff is now left with "post-laminectomy syndrome." The Defendant contends in paragraph 50 of its written Closing Suhmissions that "Dr Kantrowitz's treatment was patently beyond what was reasonahle and thus operates as a novus actus interveniens." Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J. Date: 23.09.09 Page 15 0/51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
hI support of its contention the Defendant relies on the evidence and on the reports of Dr Smith. hI his first report dated the 27tl' of June 2002 Dr Smith reviewed the patient's history and perfonned physical examinations. He notes that the Plaintiff had much more flexibility before the operation. Based on his clinical examination and review Dr Smith is of the view that the patient recorded no evidence of neurological deficits and now she is reporting symptoms that indicate that at L5 there is a possible S I nerve problem on the left side. It was his view in 2002 that on the evidence before him "It is highly unlikely that she should have undergone a fusion procedure." Dr Smith could not see any evidence to suggest that the Plaintiff had damage to the facet joints and her back at the L4-5 level. furthennore he found that the Plaintiff now has neurological deficits where none existed prior to the operation. Dr Smith went on to state that no consideration seems to have been given to minimal access simple diseeetomy, which would surely have been more indicated than the procedure undertaken.
As for the lumbar fusion Dr Smith said there does not appear to be any evidence of bony inj ury at the time of her accident, which would have been an appropriate indication for internal fixation in order to stabilize the back. Furthermore, pre- surgery examination does not demonstrate any evidence of lumbar instability.
ill his Addendum to his report dated the 27lh of June 2002 Dr Smith said: Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J. Date: 23.09.09 Page 16 0[51 1 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 "The initial x-rays do not show any evidence ~f instability on the L4-5 level. Also, the disc space is well preserved and is in absolute normal proportion in relation to those above and below it. " "1 reviewed the CT scan and a report by the radiologist. 1 am not impressed with the findings on the CT scan as being significant with the particular large disc extrusion. There is certainly no evidence seen in this CT scan of facet arthritis at the L4-5 level or other signs to indicate instability."
In his supplementaty report dated the 28th of October 2002 Dr Smith states that his examination of the x-rays and CT scan taken by the Cayman Islands Health Services Authority fails to support the surgety catTied out by Dr Kantrowitz.
Dr Smith accepts in a supplementaty opinion that disc surgery may have been indicated, giveu that the Plaintiff improved with the epidural injection for a while, and was shown to have a disc extrusion. However, Dr Smith was of the view that there is no evidence to indicate that the Plaintiff needed to undergo a spinal fusion. Dr Smith suggests that it can be argued that since the Plaintiff did not have neurological deficits prior to the surgery, and has had neurological deficits ever since the surgery, that the surgety must be responsible for those symptoms.
Dr Smith provided an updated report dated the 19th of March 2009. He confirms in the report that the Plaintiff continues to have low back pain and pain in both her legs. He notes that she now has some symptoms affecting her right leg with pain. He notes that she has numbness in the left foot and some in the calf. Judgment. BrendaArcherv. UBS. G46212003. Coram: QuinJ. Date: 23.09.09 Page 17 a/51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 20 21 22 23 24 25 26 He notes that her left leg is weak and gives way on her frequently; this causes her to fall and sustain further injuries. In summary Dr Smith's supplementary report stated that the Plaintiff has not made any improvement over the past seven years. She now has symptoms affecting the right leg and signs of instability or increased motion at the L3-4 level. Dr Smith confirms that the Plaintiff did not appear to have any significant neurological deficit prior to the surgery 311d now she has continued weakness, giving way, and sensory changes in her left leg.
In his evidence at the trial Dr Smith said that it was extremely unusual that an if\iury such as the one the Plaintiff sustained on the UBS stairs on the 30th of July 2002 should result in one hundred percent disability.
It was Dr Smith's opinion that his favourite approach in a case of this sort is to "Treat with the most conservative management that one can at all times, as there had been so many dramatic changes being made year to year in medicine; that if you do something irreversible you may have then rendered the next development not feasible .for that particular patient, if you have exceeded what is required to manage that problem. If you keep them at a managing functioning level then you can avail yourself of new methods and procedures."
Dr Smith's evidence was that one would only use a more aggressive intervention when there is progressive neurological deficits, that is to say losing function in the nerves, he it numbness or pins and needles, paresthesia or motor function - that is to say the muscles are weakening and you develop things like foot drop 31ld weakness and the thigh muscles giving way ofthe legs. Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J Date: 23.09.09 Page 18 0151 1 2 3 4 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Dr. Smith went on to say that one only considers spinal fusion when there is frank evidence of instability which is causing the above symptoms. Dr. Smith would recommend conservative physical therapy with epidurals. He described the use of an epiduraJ steroid injection: It reduces the inflammatory reaction around the nerve root which causes the pain, and further, in a Jarge number of cases the extrusion shrinks down and it gradually becomes smaller over a period of time. He adds that a large number of patients have recovered to the point that they do not need any surgical intervention. Dr. Smith was of the view that it was quite possible for a person with an extruded disc to effectively continue to function in day to day life. There may well be some modifications such as the patient would have to be careful about lifting and especially about twisting when the ammlus is at risk. Avoiding torsional activity for a significant period of time afterwards helps to heal the prolapsed disc without surgical intervention. In cross examination Dr. Smith confirmed that the Plaintiff did not have a serious compression of the spine. She had an ache in the back from a twisting vertically loaded injury which is a common occurrence. Dr. Smith concluded that he would have continued with conservative physiotherapy epidural treatment and that is the treatment he would have chosen for himself. Dr Smith said he would not have chosen to do the fusion and the discectomy together. In fact Dr Smith said the main reason for doing a fusion is "when you have demonstrable, significant instability which is never shown in this case. Judgment. Brenda Archer v. UBS. G 462/2003. Coram: Quin J. Date: 23.09.09 Page 19 a/51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
If you do a filsion without demonstrable instability the likelibood of you getting paiu relief is very slim, because you are postulating that the paiu is coming from instability at the disc level. The paiu however may be coming from the facet joints behind. They also may be coming from other soft tissues - the longitudinal ligaments and so 011. And you have to investigate those thoroughly first." In fact Dr Smith ended up by sayiug that it would be extremely unlikely that he would ever treat the Plaintiff with a lumbar fusion. Dr Smith's evidence was that he would opt for a wait-and-see approach with conservative physiotherapy and epidural injections. If it needed an operation it should be done by minimal access surgery to do a simple discectomy. There is a sharp contrast between the opmlOns of the two medical experts. Dr Kantrowitz's evidence was that he believed that the patient would not be well served by a simple lumbar discectomy. He stated that he believed that a simple lumbar discectomy in this instance would leave the patient with her L5 radicular symptoms. He was concemed about the patient having significant back paiu - residual back pain, perhaps even due to destabilization brought on by the lumbar discectomy. Dr Kantrowitz told the Court that a surgeon doiug a simple discectomy is faced with the dilemma to the extent that the surgeon removes more disc tissue from within the disc space thereby reduciug presumably a likelihood of a so-called recurrent disc hemiation, while at the same time this is impairiug the ability of the disc structure to function as a cushion and as a flexible joint. Judgment. BrendaArcherv. UBS. G46212003. Coram: QuinJ Date: 23.09.09 Page 20 0/51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
In relation to the no-surgery physical therapy approach, Dr Kantrowitz said such a patient might be okay. He would discuss this with the patient and "we may he left with pain stiffness." And, also, if the extruded fragment is left undisturbed then there might he motor deficits. Dr Kantrowitz said that epidurals are not useful for treating back pain. He also indicated that repeated epidurals can induce local fibrosis and what are known as epidural tissues, which are strands of fat on connected tissue, and therefore he did not feel that epidnrals were useful for treating back pain. Dr Kantrowitz said a wait-and-see approach was not appropriate for the Plaintiff. He said that her back pain was a great problem for her and "I felt I could help her." He then stated that with the information he got from the MRI, as well as with her historical and physical findings, he felt he could help her by doing a lumbar fusion. As for the simple discectomy using keyhole surgery to remove the extruded fragment and release pressure, Dr Kantrowitz said that although he was trained by the person who introduced this procedure to the world, and that he was extremely comfortable, because he does it all the time, he felt that a simple discectomy would not address this problem adequately. Dr Kantrowitz added that if any pain generators were left unaddressed by the keyhole surgery, the patient may have a worse course, Judgment. Brenda Archer v. UBS. G 462/2003. Coram: Quin J. Date: 23.09.09 Page 210/51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
In response to the Defendant's counsel Dr Kantrowitz said the plaintiff did not fall into the category of people suitable for a simple discectomy because she was experiencing back pain as opposed to simple radicular pain. But Dr Kantrowitz did accept that the discectomy could sort out the radicular problems, but he would be concerned that the patient would have significant back pain residual aud perhaps even exacerbation of her back pain due to destabilization brought on by the lumbar discectomy. Dr Kantrowitz gave evidence that each individual case receIves more or less surgery depending on the details of the case. In answer to defence counsel's suggestion that there was not any heightened risk of destabilization in the Plaintiffs spine to justify fusion, Dr Kantrowitz said he was dealing with a back pain situation and that he did anticipate that he might end up doing a radical or a more aggressive resection of armular fibres. By doing that Dr Kantrowitz said he is subjecting the patient to a "risk of destabilization in that, if I were to confine the intervention to a simple discectorny, as I understand some surgeons would do in this case, I am condemning the patient to a second trip to the operating room. This time it would be to fight through scar tissue and to implement a fusion at a hypothetical later date." Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J. Date: 23.09.09 Page 22 0/51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Dr Kantrowitz went on to say that as a surgeon, comfortable with doing both operations - a simple discectomy, or a simple discectomy supplemented with a fusion - "you try, and as best you can, understand if the patient is likely to corne to fusion in the future. If you honestly believe that, the ethical thing and appropriate and moral thing to do is to proceed with fbsion at the time of the simple discectOlny. " It was Dr Kantrowitz's view that: "If the patient was going to come to a fusion at some point in the future, and in the near future, then the most appropriate recommendation to do them was to do them both at the same time." Dr Kantrowitz said this would only involve one surgery, one anaesthetic and one hospitalization.
In addition, Dr Kantrowitz said, in relation to the spinal fusion, he had taken into account the fact that the Plaintiff was a smoker - albeit a social smoker.
It is clear that the treatment of back injuries and the case for spinal fusion is a matter of some controversy. Dr Smith produced a number of academic and medical articles including one from the British Medical Joumal 1996 312 by Mr James Wilson-MacDonald - a consultant Olthopaedic surgeon from the spinal unit of the Nuffield Olthopaedic Centre in Oxford - in which he stated: Judgment. Brenda Archer v. UBS. G46212003. Coram: QuinJ. Date: 23.09.09 Page 230/51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 "The case for spinal fusion for back pain has not been proved. Excellent results have been obtained from non-surgical treatments, and adequate resources have not been applied to fidly assess these methods, Spinal fusion probably has a place in the treatment of back pain and in certain circumstances, but many patients selected for spinal fusion at the present time might be better treated in other ways."
Dr Smith also referred to an 31iicle from the Division of Orthopaedic Surgery in the Department of Surgery at McMaster University hy Drs Bhandari, Petrisor, Busse aud Drew, which refers to a 2004 opinion article in the New England Journal of Medicine which stated that "the emphasis of research efforts should shift from examining how to perform fusion to examining who should undergo fusion."
Another atiicle Dr Smith referred to was in the May 2005 issue of the British Medical Journal where "a 2007 systematic review of several studies, including the 2005 British Medical Journal Study, stated: "It was not possible to reach a definitive conclusion about whether fusion surgery might be effective in treating discogenic pain." Furthermore "the review did state that the nature of nonsurgical treatment of back pain may be critical in determining whether it is a better approach than fusion." Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J Date: 23.09.09 Page 24 0[51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
Drs Bhandari, Petrisor, Busse and Drew came to the practical conclusions that: "Lumbar fusion surgery in patients with chronic low back pain does not appear to offer any major benefit in outcomes over conservative rehabilitation programmes, incorporating physical activity and cognitive-behavioural therapy."
Furthermore they stated that: "Patients undergoing lumbar fusion may have a slightly lower, but a clinically unimportant decrease in disability scores in exchange for an increased risk of complications, higher medical costs and no difference in quality of life at two years after surgery."
Indeed Dr Kantrowitz accepted that this field is the subject of professional controversy and conceded that in a room of one hundred surgeons who operate on the spine one is going to get a very broad range of opinion on which ideas are important, and, fUlther "if we knew the answers to the questions in every patient there would not be any controversy."
Dr Kantrowitz also added that despite a spine surgeon's best efforts, patients can still have persistent pain, persistence of stiffness, and perhaps some motor deficits. Indeed I note that Dr Ivor Cranden, a consultant Neurosurgeon and a Professor of Surgery in the University of the West hldies stated in his report dated the 30th of July 2008 that; Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J. Date: 23.09.09 Page 250/51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
"Dr Kantrowitz ought to be congratulated on the management of her very difficult spinal problem." I must record the fact that Dr Kantrowitz did not impress the Court by choosing not to answer some reasonable questions put by defence cOlmsel and, on occasion, insisting on arbitrarily changing the wording of defence counsel's questions to suit his own answers. Furthermore, to shont and spell the word 'ethics' to defence counsel was unnecessary. I take this intemperate response to betray a slightly defensive reaction to the Defendant's case. Indeed, I would actually prefer Dr Smith's more measured and conservative approach to the problems the Plaintiff was expenencmg. There is a sharp conflict in the evidence and recommendations of the Plaintiff's surgeon, Dr Kantrowitz, and the Defendant's expert, Dr Smith. The question this Court has to ask itself is whether Dr Kantrowitz's spinal fusion operation on the Plaintiff's back was a novus actus interveniens, thereby removing any further liability on the defendant, and placing the liability for the Plaintiff's current situation on the advice Dr Kantrowitz gave to the Plaintiff and the operation he performed. Judgment. Brenda Archer v. UBS. G46212003. Coram: QuinJ. Date: 23.09.09 Page 26 0151 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
The Defendant submits that Dr Kantrowitz's decision to proceed direct to fusion was unjustified and, in fact, contraindicated. The Defendant suhmits that Dr Kantrowitz failed to provide any clear justification for his decision to inunediately pursue a spinal fusion, and that his treatment patently went beyond what was reasonable and thus operated as a novus actus interveniens. The Plaintiff's counsel submits that Dr Kantrowitz's treatment was reasonable and appropriate although, it has to be accepted, without giving the Plaintiff any degree of recovery or relief from pain. Judgment. Brenda Archer v. UBB. G 46212003. Coram: Quin J. Date: 23.09.09 Page 27 0[51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 THELAW-CONCLUSIONONNAI
It is noteworthy that the Defendant did not bring any third party proceedings against Dr Kantrowitz and also did not plead in its defence novus actus interveniens. Paragraph 6 of the Defendant's defence filed on the 19th of December 2003 merely stated: "It is averred that such injury as the Plaintiff may have sustained as a result of the alleged accident was exacerbated by the treatment the Plaintiff received from both Dr Volivu and or Dr Kantrowitz, and that any alleged injury from which the Plaintiff continues to suffer was caused and or exacerbated by the said treatment."
The English Court of Appeal in the case of Roberts and Roberts v Bettany and Bettan/ ("Roberts v Bettany") stated that although the doctrine of novus actus interveniens was presented simply for the question of causation, it was well recognized that the matter was more complex, and a question of law where the Court had to be satisfied that the act of a third party was such as to exculpate the defendant. 12001 EWCA 109 Judgment. BrendaArcherv. UBS. G46212003. Coram: QuinJ. Date: 23.09.09 Page 28 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34
The English Court of Appeal in Roberts v Bettany considered Clerk & Lindsell as the seminal text and stated: "The correct approach was to befound at paragraph 2-41 of Clerk & Lindsell on Torts 18'h Edition, where reference was made to the decision in Hogan v Bentinck West Hartley Collieries (Owners) Ltd [1949} 1 All E. R. at 588 at 592/3 ("Hogan v Bentinick'') in which it was held that the question of whether a later act broke the chain of causation could only be answered by consideration of all the circumstances and, in particular. of the quality of that later act or event. " The definition of novus actus interveniens as set out in Clerk & Lindsell on Torts 19th Edition at paragraph 2-78 is: "Where the defendant's conduct forms part of a sequence of events leading to harm to the claimant (plaintiff), and the act of another person. without which the damage would not have occurred, intervenes between the defendant's wrongful conduct and the damage. the court has to decide whether the defendant remains responsible or whether the act constitutes a novus actus interveniens. i.e. whether it can be regarded as breaking the causal connection between the wrong and the damage." It has often been stated, and re-stated in Clerk & Lindsell that: "Whatever its form. the novus actus interveniens must constitute an event of such impact that it "obliterates" the wrongdoing of the defendant." In paragraph 5-7 of Charlesworth & Percy on Negligence 11th Edition the learned editors point out that reasonableness has to be a test as well as foreseeability. The editors state: Judgment. BrendaArcherv. UBS. G46212003. Coram: QuinJ. Date: 23.09.09 Page 290[51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32
"ff the negligence of the defendant creates a context in which a third party, reasonably acts in some way which contributes to the claimant's damage, it is unlikely that the consequences of that fresh act would serve to break the chain af causation. But if there is some unreasonable intervention, it may so overwhelm the defendant's wrongdoing that it can be said to be a new intervening cause. It is a matter of judgment based on the facts of each case whether the intervening act is reasonable or not. Foreseeability comes into the equation toa. ff the defendant ought to have reasonably foreseen the third party's intervention as a result of his negligent act or omission, it will not be open to him to suggest that the intervening act overtakes his own as the effect of cause af loss." The learned editors of Charlesworth & Percy cite the case of Iron & Steel Holdings and Realisation Agency v Compensation Appeal Tribunaf and the judgment of Winn LJ at page 492: "In my opinion, wherever any intervening factor was itself foreseeable by the actor, the person responsible for the act which initiated the chain of causes leading to the final result, that intervening cause is not itself, in the legal sense, a novus actus interveniens breaking the chain of causation and isolating the initial actfrom the final result." Accordingly, as the learned editors of Clerk & Lindsell state four issues need to be addressed: a. Was the intervening conduct of the third party such as to render the original wrongdoing merely a part of the history of events? b. Was the third party's conduct either deliberate or wholly unreasonable? c. Was the intervention foreseeable? d. Is the conduct of the third party wholly independent of the defendant, i.e. does the defendant owe the claimant any responsibility for the conduct of the third party? 2 [1966]1 W.L.R. 40 Judgment. BrendaArcherv. UBS. G46212003. Coram: QuinJ. Date: 23.09.09 Page 30 0[51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
The learned editors went on to state that "in practice, in most cases of novus actus interveniens more than one of the above issues would have to be considered together." On the evidence before me the Plaintiff at paragraph 14 of her witness statement states that she spoke to Mr Albrecht about her injury and the outstanding medical bills, as well as the events leading up to that date. He told her that she would be reimbursed for all money spent regarding the injury and any shortfall from the insurance and any other expenses related to the injuries and asked for all the receipts of the things she had paid for up to that time. In her witness statement at paragraph 16 the Plaintiff said she attended a meeting with Mr. Albrecht and Philip Bigger ("Mr. Bigger") of the Bank, and advised them of the situation, and asked them whether they wanted confirmation directly from the doctor. The Plaintiff's evidence is that Mr. Albrecht and Mr. Bigger acting as servants and agents of the Defendant accepted the Plaintiff's statement and Mr. Albrecht went on to tell the Plaintiff that she must go and do the surgery and not to wony about anything, and particularly not to worry about the expenses, because UBS would continue to cover the shortfall. Mr. Albrecht also told the Plaintiff that if she could not return to work she could always take early retirement or disability leave or possible part-time work. Judgment. BrendaArcherv. UBS. G46212003. Coram: QuinJ. Date: 23.09.09 Page 31 0151 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 25 26 27 28 29 30
It is clear that the Plaintiff had properly apprised the Defendant of the steps she was taking as a result of the injury she received from the fall on the rear staircase. It is also clear that the intervention of Dr Kantrowitz's operation was not only foreseeable, but also the Plaintiff, in her duty to the Defendant, had kept the Defendant and their servants and agents apprised of what treatment and medical advice she was receiving. hl my view the Plaintiff acted quite properly and reasonably in all the circumstances of this case. The law on intervening medical treatment developed from the often cited dissenting judgments of Lord McDennott and Lord Reid in Hogan v Bentinck. As the learned editors of Clerk & Lindsell state: "A problem arises when it is alleged that the effective cause of the plaintiff's injury was not the original wrongdoing but either inept or ill advised medical treatment, or a refusal by the claimant to undergo effective and available treatment. " The question which went to the House of Lords in Hogan v Bentinck was whether the man's incapacity resulted from the original injury or the operation. By a majority of 3:2 it was held that the inappropriate treatment operated as a novus actus. However, Lord McDennott, in a dissenting judgment, stated that the learned County Court Jndge had misdirected hinlself. "He should have enquired (1) if the workman was reasonable in undergoing the operation, and (2) if the surgeon's fault occurred in the course of advising or carrying out treatment aimed at curing that incapacity." Lord McDermott was of the view that had the judge asked himself those questions, the appeal would succeed. Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J. Date: 23.09.09 Page 32 0/51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 25 26 27 28 29 30 31
In addition, Lord Reid stated at page 607 paragraph 1, which states: "1 do not find in any of the cases any warrant for applying the doctrine of novus actus interveniens unless there has been grave lack of skill or care on the part of the doctor." The learned editors of Clerk & Lindsell 19th Edition have indicated that Lord Reid was correct in that: "Only medical treatment so grossly negligent as to be a completely inappropriate response to the injury inflicted by the Defendant should operate to break the chain of causation." It is notewOlihy that the English Court of Appeal in Webb v Barclay's Bank PLC and Portsmouth Hospitals HPS Trust' ("Webb v Barclays") at paragraph 55 expressly endorsed this statement of the editors of Clerk & Lindsell .Lord Justice Henry's judgment in Webb v Barclays also referred to the High Comi of Australia decision in Mahoney v 1(ruschick Demolitions Pty Ltd' which said Per curium "What "when" an injury is exacerbated by medical treatment, the exacerbation may easily be regarded as a foreseeable consequence for which for which the first torifeasor is liable. l.f the Plaintiff acts reasonably in seeking or accepting the treatment, negligence in the administration of the treatment need not be regarded as a novus actus interveniens which relieves the first torifeasor of liability for the Plaintiff's subsequent condition. The original injury can be regarded as carrying some risk that medical treatment might be negligently given." It is my view that the Plaintiff acted reasonably in seeking out and accepting Dr Kantrowitz's advice and treatment. Furthermore, the original injury sustained by the Plaintiff as a result of the negligence and breach of statutory duty of the Defendant can be regarded as carrying some risk that medical treatment might be negligently given. 3 [2002] P.I.Q.R. 4 [1985]156 C.L.R. 522 Judgment. BrendaArcherv. UBS. G46212003. Coram: QuinJ. Date: 23.09.09 Page 33 a/51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
Perhaps Dr Kantrowitz should have gIven further consideration to a more conservative wait-and-see policy, as set out by Dr Smith, which would have included physiotherapy, epidurals and physiotherapy and, possibly, a simple discectomy on its own, before embarking on the lumbar fusion operation.
However, even if Dr Kautrowitz's operation was somewhat premature, it is not automatically a novus actus interveniens which would relieve the Defendaut from liability for the Plaintiff's subsequent condition.
To answer the questions posed in 82 above, I don't find that the intervening conduct of Dr Kantrowitz was such as to render the original wrongdoing merely a part of the history of events. Secondly I do not find that Dr Kantrowitz's conduct was either deliberate or wholly unreasonable. Thirdly the intervention was foreseeable and, in my view, on the facts of this case, and in all the cireumstauces, the Defendant is liable for the loss and damage and pain and suffering that the Plaintiff is currently enduring. Whilst I may prefer Dr Smith's approach I do not find Dr Kantrowitz's is guilty of either excessive or gross negligence aud therefore his operation on the Plaintiff does not break the chain of the causation. Accordingly, on all the facts and circumstances of the case I find that Dr Kantrowitz's decision to recommend and carry out a lumbar fusion on the Plaintiff is not a novus actus interveniens. Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J Date: 23.09.09 Page 34 0[51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
QUANTUM GENERAL DAMAGES In her Statement of Claim the Plaintiff claims from the Defendant damages for pain, snffering and loss of amenities, resulting from the injuries she received in the slip-and-fall accident on the bottom rear stairway of the Defendant's building as well as psychological damages. The Plaintiff in her witness statement at paragraph 25 states that she still has continual pain, sleepless nights, limited mobility, numbness in her left foot and some toes, and, pain in her left leg. She has difficulty sitting and standing for prolonged periods and is unable to walk for any long periods. She is unable to continue running, doing exercise, dancing, and no longer can play or umpire Netball matches. In addition she has difficulty sleeping and her sex life has been greatly diminished. The Plaintiff maintains tbat her entire lifestyle has changed, whereas before the fall she was an extrovert. Now she feels depressed, unwanted and lives the life of an introvert. The Plaintiff impressed the Court as a witness of truth who did not appear to embellish the problems she was experiencing. In fact, she appeared admirably stoical in facing her difficulties. Judgment. BrendaArcherv. UBS. G46212003. Coram: QuinJ. Date: 23.09.09 Page 35 a/51
In the Plaintiffs Skeleton Submissions dated the 11th of June 2009 her attorneys 2 submit that the sum of $300,000.00 is a reasonable figure for pain and suffering and 3 loss of amenities. I have to say that this is a wildly inflated sum and is not 4 supported by any relevant authorities in Kemp & Kemp, from the Judicial Studies 5 Board or from any case law in comparable jurisdictions. 6 7
I have been helpfully provided by with the Judicial Studies Board Guidelines, 8 Personal Injury Quantum Reports/or Orthopaedic Injuries (Ninth Edition) by the 9 Defendant's attorneys. Defence counsel has referred to a number of cases one is very similar to the Plaintiff s case in relation to pain and suffering and loss of amenities namely Lane v. Laing Cons/ruction Ltd'. In this case the Plaintiff suffered similar injuries. The symptoms which she suffered were permanent and there was a likelihood of a spinal fusion operation. The judge found that his 14 assessment of damages for pain and suffering and loss of amenities fell at the top of 15 the JSB Guidelines (7th Edition) "moderate back injuries" category at Chapter 16 6(B)(b )(ii). In this case he awarded £14,500 for general damages. 17 18
In another case Saunders v Hammersmith and Fullzam6, the injuries comprised an 19 eight year and six month acceleration of a pre-existing hut symptomless back 20 problem of isthmic spondylolisthesis at L5/S1 with disc prolapses caused at L4/5 21 and L5/SI. In this particular case of Saunders v Hammersmith and Fulham LBe 22 the Plaintiff was able to work until the fall but not at all thereafter. The Plaintiff was 23 in severe pain for one year from the date of the fall and in disabling pain thereafter 24 with limitation of mobility and with sociallsexuallhobby restrictions. 5 [2006] C.L.Y. 3163 6 LBC [1998] C.L.Y. 1570 Judgment. Brenda Archer v. VBS. G 46212003. Coram: Quin J. Date: 23.09.09 Page 36 0/51 1 2 3 4 5 There was a possibility of spinal fusion in the futnre. Physical symptoms included back pain, severe groin pain and burning sensations in the thighs and legs and the Plaintiff also suffered a moderately severe depressive illness. In this case the judge ordered general damages in the sum of £22,265. 6
hl the third case of McIlgrew v Devon CC' the Plaintiff suffered very similar 7 8 9 10 11 12 13 14 15 16 17 injuries to the Plaintiff in this case and underwent an operation on the lumbar spine. In the case of McIlgrew v Devon CC the spinal fl1sion was not a success and the Plaintiff was left with constant pain and restriction of movement. At the date of the trial she walked with a stick. She could only sit for about an hour before she had to move, but could stand for somewhat longer. Her sleep pattern had been distnrbed. She could no longer partake in dancing aerobics and hiking. Her sex life had been severely diminished and her symptoms were expected to be pemlanent. She was described as unemployed and unemployable and she was awarded £22,500. The pain, suffering and loss of amenities in the case before the Court are very similar to McIlgrew v Devon CCwhich was decided some sixteen years ago in 1993. 18
It would appear from the evidence of Dr Kantrowitz and Dr Smith that the pain, 19 20 21 22 23 suffering and loss of amenities, which the Plaintiff is suffering from, are at the high end of the "moderate back injuries" category, as defined in the JSB Guidelines, with some elements at the low end of the "severe" category. 7 [1993] C.L.Y. 1487 Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J. Date: 23.09.09 Page 37 0[51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
This court traditionally follows English case law, and the helpful authorities contained in Kemp & Kemp and the Ji>B Guidelines, with a small increase to reflect the higher cost of living in the Cayman Islands. It is my view that this Court can take judicial notice of the fact that we have no income tax, and therefore the cost of living is higher than in the UK. I have read and reviewed those authorities and the Plaintiffs claim for damages for pain and suffering and loss of amenities and I find that in this case damages for pain, suffering and loss of amenities should be CI$65,OOO.00. Judgment. BrendaArcherv. UBS. G46212003. Coram: QuinJ Date: 23.09.09 Page3S 0/51 1 SPECIAL DAMAGES 2 PAST Loss OF EARNINGS 3 4
The Plaintiff was a client advisor or corporate administrator with UBS. She had no 5 professional qualifications such as a Chartered Secretary or Accountant, and had 6 not passed any exams other than her Advanced Level Cambridge Exams. There was 7 no evidence that she was on an upward career path, altbough it seems that the Bank 8 was reasonably satisfied with her perfol1nance. 9 10
At the time of the accident the Plaintiff was employed as a client advisor eaming 11 US$50,000.00 per millum. After the accident she continued to be employed by the 12 Defendant until she was made redundant in 2002 as a result of restructuring. 13 14
The Defendant said that the Plaintiff would have had little difficulty in obtaining 15 similar employment with another institution in the early 2000's and in the mid 16 2000's. 17 18
In accordance with her witness statement the Plaintiff has indicated that she 19 20 21 22 23 24 25 26 obtained an annual salary increase of two percent. Accordingly, the projected salary is as follows: Judgment. BrendaArcherv. UBS 046212003. Coram: QuinJ. Date: 23.09.09 Page 39 0[51 Period Projected Salary US$, inflating @2% p. a. 2002-2003 50,000 2003-2004 51,000 2004-2005 52,020 2005-2006 53,060 2006-2007 54,121 2007-2008 55,203 2008-2009 56,307 1 2
However, the Defendant had put the Plaintiff on its Group Disability Scheme which 3 4 5 6 7 8 9 10 was entirely maintained and contributed to by the Defeudaut with Zurich Insurance ("Zurich Disability Scheme"). To the Defendant's credit, this benefit was not initially applied for by the Plaintiff. Nevertheless, following her application the benefit was backdated to the date of her accident and the Plaintiff has received and will continue to receive a regular income as a result of the Defendant placing her on the Disability Scheme and for paying all other contributions to the Zurich Disability Scheme. 11
The Defendant maintains that these payments would quite c1eal"ly not have been 12 13 14 15 16 received by the Plaintiff, had she not been injured, and had the Defendant not taken out and paid for the Zurich Disability Scheme. The evidence is that the Plaintiff did not contribute to the premiums and therefore the payments under the Zurich Disability Scheme fall to be deducted when calculating her net loss of earnings. Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J. Date: 23.09.09 Page 40 0[51 1
The Defendant relies upon the English Court of Appeal decision of Pirelli General 2 PLC v. Jan Gaca' ("Pirelli "J. The principles upon which the Courts rely are that 3 damages are always compensatory and the Plaintiff is not entitled to be put in a 4 position better than that which would have been the case. had the accident never 5 occurred. In Pirelli the Plaintiff was injured and rendered unfit to work in the same 6 manner as the Plaintiff in this case, and was also entitled to a substantial payout 7 under the terms of a Group Personal Accident policy maintained by his employers. 8 9
It was argued in Pirelli that there was no need to give credit for payouts under this 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 policy when calculating his damages. This argument was rejected by the Court of Appeal on the following grounds: i. A payment of this sort under an insurance policy was not equivalent or analogous to a benevolent payment as sympathy. See Dyson LJ at paragraph 39. ii. The essential consideration in detennining wbether the "insurance exception" in tbe Parry v. Cleave! case, was whether the premium had been paid by the claimant. See paragraph 50. iii. The Plaintiff was not to be treated as having paid or contributed to the 8 [2004] EWCA Civ. 373 9 [1970] A.C.I cost of insurance merely because the insurance bad been arranged by his employer for the benefit of employees. Payment or contribution will not be inferred simply from the fact that the claimant is an employee for whose benefit tl,e insurance has been arranged. Judgment. BrendaArcherv. UBS. G46212003. Coram: QuinJ Date: 23.09.09 Page 41 0/51 1
Counsel for the Plaintiff accepted in the course of submissions that the premiums 2 had been paid by the Defendant. Accordingly, it is this Court's view that the 3 Plaintiff has to be treated in the same way as the employee in the Pirelli case, and 4 accordingly the benefits paid to the Plaintiff fall to be deducted. 5 6
The benefits the Plaintiff has received from the date of the accident to the date of 7 8 9 10 trial are as follows: Period 2001-2002 2002-2003 2003-2004 2004-2005 2005-2006 2006-2007 2007-2008 2008-2009 Projected Benefit US$ inflating @ 5% 33,335 35,001 36,751 38,589 40,519 42,544 44,672 46,905 11
Accordingly, the Court finds that the Plaintiffs net loss of earnings to the date of 12 trial can be calculated as US$371, 711 less US$318,316 bringing a total loss of 13 earnings to US$53,395. Accordingly, I award US$53,395 to the Plaintifffor loss of 14 earnmgs. 15 16 17 Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J. Date: 23.09.09 Page 42 of 51 1 FUTURE Loss OF EARNINGS 2 3
It is accepted by the Defendant tbat, assuming liability is not an issue, the Plaintiff 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 is entitled to compensation for future loss of earnings. Both parties refer to and rely upon the Ogden Tables. The Plaintiff submits that an appropriate multiplier is 13.35, the Defendant, on tbe other hand, argues for a multiplier of 10.22. The Ogden Tables have been accepted by the English Courts for many years and indeed, the Cayman Islands Courts have recognized them and have adopted them. The fanner Chief Justice Harre in Allen v Ebank!l° states: "It is clear that the English Courts accepted the use of the statistical average taken from the Ogden Tables, not as the ultimate and only test, but taking into account also factors found to exist in particular cases and the manifold contingencies of any individuals' lives. That is the approach which I shall adopt. In the present case the plaintiff submits that the Ogden Tables, and what may be called the conventional method of calculation, produce a very similar result." 20 I I 8. As counsel for the Defendant submits, in the absence of a set of actuarial tables 21 compiled with specific reference to the demographics of tbe Cayman Islands, the 22 Courts here have wisely relied upon the Ogden Tables as a reasonable source of 23 actuarial data. In Allen v Ebanks and in other cases tbe COUlis in the Cayman 24 Islands have prayed in aid the Ogden Tables which I find to be extremely helpfhl 25 and, I adopt in this case. 26 27 28 to 1998 CILR 190 at page 197 Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J Date: 23.09.09 Page 43 0/51 4 5 6 The Plaintiff is 48 years of age and J think it is reasonable to adopt a pension age of
Accordingly, table 8 of the Ogden Tables provides for multipliers for loss of earnings to pension age 60 for females. Adopting Table 8 as a starting point with a rate or return of 2.5% produces a basic multiplier of 10.22 and not the multiplier of 13.35 which was suggested by the Plaintiff's counsel. 7
In 2009 the Plaintiffs net loss of earnings equates to her projected salary minus the 8 9 10 payments received in lieu of salary from the Zurich Disability Scheme. That is, US$56,307-US$46,905 = US$9,402. 11
Accordingly, using Ogden Table C - loss of earnings to pension age 60, Females 12 13 14 15 Not Disabled produces a factor of .85 in this respect. Therefore to calculate her gross future loss it is US$9,402 x 10.22 x 0.85 which results in a figure of US$81,676. 16
The Defendant relies upon the Pirelli decision in order to support their argument 17 18 19 20 21 22 23 24 25 that there should be two further deductions in relation to the Plaintiff's loss of future earnings. The Defendant suhmits that under the provisions of the National Pensions Law the Plaintiff was legally obliged to contribute 5% of earnings up to CJ$60,000.00 (US$71 ,428.00) into a Pension Plan. The Defendant submits that given that the Plaintiff's projected earnings at UES never exceeded this level, this should be accounted for by a simple 5% deduction from the gross figure in order to reflect money that would have ordinarily have been paid into such a Plan. Accordingly, this can be reflected by US$81,676 x 0.95 = US$77,593.00. Judgment. BrendaArcherv. UBS. G46212003. Coram: QuinJ. Date: 23.09.09 Page 44 0/51 1
In addition the Defendant submits that the effect of the Zurich Disability Scheme in 2 respect of pension contributions is that the Plaintiff will receive more in respect of 3 pension contributions than would in fact have been paid into her pension, had she 4 continued to work. The Defendant submits that this sum would have been paid in 5 cash and is therefore liquid. Accordingly, the Defendant argues that a sum of 6 US$58,726.00 should be deducted from the Plaintiffs overall claim for loss of 7 earnings, to reflect the additional payment. This can be shown by US$77,593.00 - 8 US$58,726.00 = US$18,867.00. 9 10
I accept the Defendant's submission that in accordance with the Pirelli decision the 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff is not entitled to be put in a position better than that which would have been the case, had the accident never occurred. Accordingly, I make the above dednctions and award the figure ofUS$18,867.00 forfhture loss of earnings. Judgment. BrendaArcherv. UBS. G462/2003. Coram: QuinJ. Date: 23.09.09 Page 45 0/51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Loss OF PENSION CONTRIBUTIONS The Plaintiff's counsel have made a claim for an award for loss of pension contributions. Although this has never been particularized, either in the Statement of Claim or in the Plaintiff's evidence. The Defendant argues that the Zurich Disability Scheme pays 50% of full salary in lieu of pension contributions. The Defendant argues that Section 47(2) of the National Pensions Law (2000 Revision) stipulates that an employee and an employer must each contribute a pension plan 5% of earnings up to a maximum pensionable level of US$60,000. The Defendant submits that in the Plaintiff's case this level of earnings was never exceeded and, accordingly, an aggregate sum equivalent to ten percent of her total salary would have been paid into her pension each year. However, the Defendant also submits that by reason of the benefits under the Zurich Disability Scheme the Plaintiff in fact received 5% more of her total salary in lieu of pension, than would have in fact been paid into her scheme had she continued to work, and therefore her loss of pension is O. I accept the Defendant's submissions on this point and make no award for any loss of pension contributions. Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J. Date: 23.09.09 Page 46 0[51 1 ·2 HOME CARE 3
The Plaintiff maintains that she is nnable to attend to her housekeeping due to her 4 5 6 7 8 9 10 11 12 13 14 15 16 injuries and since July 2003 she has been incapable of paying for home care and has to resort to paying a domestic for one day per week at the rate of CI$50.00 per day, making a total to the date of trial ofCI$15,600.00. Whilst the Defendant complains about the Plaintiffs lack of particularity in relation to this head of claim, it does accept that such a claim for home care may be allowed. In addition it is highly likely that the Plaintiff will continue to require this home care and, accordingly, I make an award for future home care in the sum of CI$50.00 per day, for one day per week, for one year, which comes to a subtotal Slllll of $2600.00. Using the multiplier of 10.22, I allow the sum of CI$26,572.00 for future home care. Accordingly, I award a total of CI$42,172.00 under this heading. MEDICAL EXPENSES 17
Again the Defendant has not sought to challenge the Plaintiffs claim under this 18 heading and accordingly I award the Slllll ofUS$90,861.84. 19 20 21 22 23 24 25 Judgment. BrendaArcherv. UBS. 046212003. Coram: QuinJ. Date: 23.09.09 Page 47 0[51 1 2 FUTURE MEDICAL EXPENSES 3 4
The Plaintiff in her Statement of Claim claimed for future medical expenses but 5 they were not particularized, in the claim or in any ofthe witness statements or the 6 evidence put before the Court. However the Court received a letter dated the lih of 7 June 2009 in which Dr Kantrowitz stated that the Plaintiff may need an additional 8 lumbar spar fusion to "extend" the extending filsion to embrace adjacent levels. 9 10
Dr Kantrowitz estimates that the total cost of such hospitalization would be 11 US$250,000. He also adds a figure of US$25,000 per rumum for pain managemeut 12 and a figure of approximately US$75,000.00 for pain management snrgical 13 procedures. 14 15
As against that, the Defendant has produced a detailed spinal fusion estimate from 16 17 18 19 20 21 22 23 24 25 26 the Cayman Orthopaedic Group as follows: Judgment. Brenda Archer v. USs. G 46212003. Coram: Quin.J. Date: 23.09.09 Page 48 0/51 1 2 3 Item Lumbar Laminectomy CPT Code 63047 Spinal Fusion CPT Code Auto Graft for Spine CPT Code Posterior Instrumentation CPT Code 22840 Arthrodesis Interbody CPT Code 22630 Surgical Assistant CPT Code 80 Spinal Instrumentation CPT Code L8699 Hospital Operating Room Anaesthetist Total CIS $6,197.40 $4,961.70 $1,545.40 $5,926.5 $4,412.70 $3,760.00 $7,870.00 $400 per day x 5: $2,000 $2,500.00 $3,000 $42,173.70 4
There is an absence of evidence and no explanation has been given as to why the 5 6 7 8 9 10 11 12 13 second fusion would cost five times more than the first fusion Dr Kantrowitz performed. The Defendant submits that in the event recovery for future medical costs is allowed, it should be limited to a propOltion of the cost of a Cayman Orthopaedic Operation - at most, where a competent surgeon is a available at a lesser cost, and therefore the Plaintiff will also be discharging her duty to mitigate her loss. Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J. Date: 23.09.09 Page 49 of 51 1
As there only exists a possibility that this second lumbar spine fusion operation 2 should be perfonned, I do not think it is reasonable to award a figure in accordance 3 with Dr Kantrowitz's very high estimate. At the same time it is uncertain what 4 further treatment the Plaintiffwi11 need, although there is a high likelihood that she 5 will need some physiotherapy and associated pain management. 6 7
I accept Cayman Olihopaedic Group's estimate for the cost of a possible future 8 9 10 11 12 13 14 spinal fusion operation. In addition I think it is fair and reasonable to award the sum of CI$15,OOO to cover the cost of further physiotherapy and associated pain management treatment. Accordingly I award the sum of CJ$57,173.70 for future medical expenses. MISCELLANEOUS EXPENSES IS
The Plaintiff has made a claim for US$69,336.20 for out-of-pocket medical and 16 travel expenses. It is clear that item 1 relates to home care expenses in the sum of 17 US$14,158.54 and accordingly the Defendant does not dispute the figure of 18 US$55,177.66, which I consequently award under this heading. 19 20 21 22 23 24 25 26 Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J. Date: 23.09.09 Page 50 0151 1 CONCLUSION 2 3
Accordingly the Plaintiff is awarded the following snms: Item US$ CI$ CI$ CI$ General $ Damages 65,000.00 Special Damages (SD) SD Loss of Earnings $53,395.00 $ 44,851.80 SD Future Loss of Earnings $18,867.00 $ 15,848.28 SD Loss of Pension No award No award SD Home Care $ 42,172.00 SD Medical $90,861.84 $ 76,323.95 Expenses SD Future Medical Expenses $ 57,l73.70 SD Miscellaneous $55,177.66 $ 46,349.23 Expenses Snb Total for $282,718.96 SD Grand Total $347,718.96 4 5
Accordingly, I award the Plaintiff the sum of CI$65,000.00 for General Damages 6 and Cl$282,718.96 for Special Damages, making an overall total ofCI$347,718.96 7 and interest thereon to be included in the final Order. In addition, in light of tbe fact 8 that costs follow the event I order that the Plaintiff is to have her costs paid for by 9 the Defendant and to be taxed if not agreed. 10 11 Dated this the 23'd day of Septemher 2009 12 13 The Honourahle Justice Charles Quin Q.C. 14 Judge ofthe Grand Court Judgment. Brenda Archer v. UBS. G 46212003. Coram: Quin J. Date: 23.09.09 Page 51 0/51