Akeem Morgan v Owen Porter
| Jurisdiction | Jamaica |
| Judge | Fraser J |
| Judgment Date | 20 December 2012 |
| Neutral Citation | [2012] JMSC Civ 185 |
| Docket Number | CLAIM NO. 2009 HCV 04301 |
| Court | Supreme Court (Jamaica) |
| Date | 20 December 2012 |
[2012] JMSC Civ 185
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
CLAIM NO. 2009 HCV 04301
Assessment of damages — Pain Suffering and Loss of amenities — Loss of fingers on dominant right hand, loss of teeth and fracture to right leg — Post Traumatic Stress Disorder-applicability of multiplier/multiplicand approach to replacement cost of prosthesis — size of multiplier — young claimant — whether damages for loss of earning capacity to be assessed using multiplier/multiplicand approach or conventional award to be made — validity of Notice of Objection to tendering Hearsay Statement in Evidence
The claimant Akeem Morgan was born on August 15, 1996. On July 14, 2009 at about 10:30 a.m., the claimant was sitting in a board shop located in the community of Lakes Pen Road Spanish Town, St. Catherine. He heard a noise which sounded to him like a car. When he looked around, he saw a car coming towards him from the direction of Kingston at a very fast speed. It was later established this car was being driven by the defendant Owen Porter.
In the words of the claimant in his witness statement dated April 18, 2011, ‘From the moment I saw the car coming towards me I don't remember what happened in the next few moments. I became unconscious’. When he regained consciousness, he found himself lying down in the back of a van and heard shouts from persons on the scene. He lapsed into unconsciousness again and next became aware of his surroundings when he was in the emergency room of the Spanish Town Hospital where he began receiving treatment for his injuries.
Arising from this accident the claimant commenced action by his mother and next friend Kerry Ann Harrison against the defendant by Claim Form filed November 3, 2009 and Particulars of Claim filed March 4, 2010. The acknowledgment of service of the Claim Form filed December 11, 2009, disclosed that service was effected on November 16, 2009. During the hearing, on May 18, 2011, the claimant was given leave to file an Amended Particulars of Claim which was filed on May 20, 2011.
The defendants first Defence was dated April 23, 2010. Thereafter an Amended Defence as to Quantum and Admission of Liability was filed on May 14, 2010. A Further Amended Defence as to Quantum and Admission of Liability was filed on June 15, 2010. On October 14, 2010 the claimant filed an Interlocutory Judgment Against the Defendant on His Admissions which is recorded at Judgment Book 750 Folio 499.
The claimant sought special damages for medical reports and the costs of consultations, the cost of prosthesis related therapy and replacements and the cost of future care. General damages were claimed for pain and suffering and loss of amenities, post traumatic stress disorder, and loss of earning capacity.
At the hearing, reports and receipts attached to Notices of intention to tender in evidence hearsay statements contained in documents filed and served by counsel for the claimant were received in evidence. All these receipts and reports were received in evidence as exhibits.
In his witness statement Akeem stated that at the hospital he felt tremendous pain in his right hand and saw that it was cut to pieces and bleeding. He also indicated that he felt unbearable pain in his right leg which was swollen and he could not move it. He noticed that he was bleeding from his right side, right elbow, head and mouth. He could feel that his two front teeth were missing. He had awful pain from all of those areas of his body and he thought he was going to die right there in the hospital.
He was taken to the operating theatre and when he got back on the ward a doctor told him that they had had to amputate one of his fingers completely and remove parts of his middle and index fingers. This information made him very sad and upset and he cried a lot.
Being on the ward at the hospital he stated was awful. He was unable to come off the bed or walk. He had to be fed and required assistance with his bodily functions right there in bed. He was given nightly injections in his buttocks and would get pain killers on request from the nurses during the day. He did not receive any counselling to help him with his feelings about his various injuries.
By the time he left the hospital after an eleven day stay, the pain in his leg and hand had eased but not stopped. Upon his discharge from the hospital he was given crutches to use at home but initially could not use them. At first when he needed to go to the bathroom he had to be carried to and fro. His leg became infected and he had to return to the hospital for treatment. Gradually over a period of several weeks he went from using two crutches, to one, to being able to walk without a crutch. He missed the first two weeks of school in September 2009. Even after he resumed attending school, he had to go to the clinic for his hand three times per week and for his leg every two weeks.
Dr. Mark Minott, Consultant Orthopaedic Surgeon submitted three reports. His first report dated December 8, 2009 was not detailed and need only be mentioned for the opinion that the impairment to the right hand was 30% or 27% of the upper limb or 16% of the whole person. He also noted that the lower limb had healed with no impairment. In his second report dated 2009 March 8, (this is a clear error and should be read as 2010 March 8) , he noted that when Akeem was seen on the day of the accident:
The right hand had a grossly contaminated wound on the dorsum with incomplete severance and maceration of the ring fingers at the level of the middle phalanx and amputation of the distal phalanges of index and middle fingers. The right wrist was swollen and tender and all pulses were palpable. The right thigh was swollen in its middle third.
He was resuscitated in the Emergency room prior to admission to the orthopaedic surgical ward. Radiographs confirmed fractures of the right femur and of the first, third and fourth metacarpals.
…the right femur was fixed with a rush rod as well as debridement and refashioning of right hand. The ring finger was so crushed, a ray amputation was done, as treatment. He was given antibiotics for the next two weeks intravenously with regular dressing changes.
He also noted in that report subsequent action and treatment of the claimant:
He was discharged on July 25, 2009. On July 30, 2009, he returned to the ward with oozing from the right thigh wound. He was restarted on antibiotics after taking a swab of the wound. He was reviewed weekly in the Orthopaedic clinic with good resolution of the infection. On September 18, 2009 he was reviewed in the Orthopaedic clinic with radiographs. The femoral fracture had healed well with bridging callus. He was therefore allowed to begin bearing weight on the right leg. On October 16, 2009, radiographs confirmed good healing of the femur…
His hand had healed with a full range of motion in his remaining four fingers. He walked without a limp with no evidence of persistent infection…
In his final report dated 2011 January 20 Dr. Minott stated that the Rush Rod in the femur was removed in August 2010 and that Akeem was discharged September 17, 2010. He noted that his impairment remained unchanged as of January 19, 2011.
Akeem also saw a range of other specialists concerning the care for injuries suffered to his hand, his face and teeth and for psychological trauma associated with the accident and its aftermath.
On February 19, 2011 Gerald Anthony Boyd, CO., LO Board Certified Orthotist from Orthotics USA examined Akeem at Jamaica Orthotics Pedorthics and Prosthetics (JOPP). After describing the physical findings he noted as follows:
Although hand strength was decreased, Mr. Morgan was able to carry out activities of daily living including writing. However he was unable to grip large objects. Mr. Morgan also expressed withdrawal from normal peer activities because of his consciousness of the appearance of his hand
Recommended Management:
The Life-like Functional unpowered hand prosthesis to replace missing digits and to assist with limited hand function namely opening and closing and simple gripping.
Expected Usefulness of the Prostheses: This prosthesis is not intrinsically powered and can only be operated with the assistance of the sound hand to position the fingers in the open or closed positions. Though mainly cosmetic, some personal daily functions can be more efficiently accomplished using this prosthesis. The device is closely matched to his skin colour, skin type and likeness of the sound limb. This will be of great benefit in enhancing personal confidence and social acceptance, as well as enabling a functional and productive resumption of community activities.
The estimate quotation covering Pre-Manufacturing, Manufacturing and Post-Manufacturing costs of the prosthesis was provided by JOPP and totaled $1,098,200.00.
On February 24, 2011 Akeem was assessed by Dr. Jeffrey Meeks Orthodontist. In his report of the same date he noted that on examination of Akeem he found:
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a. Maxillary central incisors missing
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b. Anterior open bite
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c. Class 1 malocclusion
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d. Intrusion of the Maxillary left lateral incisor — Probably a result of trauma.
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e. Insufficient space between the Maxillary lateral incisors for the replacement of the central incisors
In his opinion Akeem required three different dental specialties. The first aspect of his treatment would be orthodontics that would be done at his office. This treatment would involve the use of Upper and Lower fixed orthodontic appliances to return the remaining teeth to their...
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