Andy Friginette v Noel Smith, Byron Lee Williams

• Jurisdiction: Jamaica
• Judge: Coram: Jarrett, J. (Ag).
• Judgment Date: 19 May 2022
• Year: 2022
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2017HCV02743

BETWEEN

Andy Friginette

Claimant

and

Noel Smith

1 ^st Defendant

Byron Lee Williams

2 ^nd Defendant

[2022] JMSC Civ. 63

CLAIM NO. 2017HCV02743

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Assessment of damages — Pleading Special Damages — Proof of Special Damages

Mr. Obika Gordon instructed by Frater Ennis & Gordon for the claimant.

The defendants not appearing and not being represented.

Coram: Jarrett, J. (Ag).

Introduction

1 On October 5, 2015, along the Mammee Bay Main Road in the parish of St Ann, the claimant, Andy Friginette, an electrical engineer, was thrown from a bus in which he was travelling as a passenger. This unfortunate incident occurred when the bus collided with an oncoming motor vehicle as the driver, the 1 ^st defendant Noel Smith unsuccessfully attempted to negotiate a corner in the vicinity of Old Fort. The claimant was at the time of the accident 27 years of age. He filed a claim in negligence on August 29, 2017, against the 1 ^st defendant as well as the 2 ^nd defendant Byron Lee Williams, the owner of the bus. The defendants although being served with the claim form and particulars of claim did not file a defence. Judgment in default of defence was consequently entered in favour of the claimant who now seeks to have damages assessed. At the trial the defendants neither appeared nor were represented by counsel. The sole issue for me to determine is whether damages ought to awarded to the claimant and if so, how much.

The Evidence

Nonpecuniary losses

2 In his witness statement made on May 30, 2020, and relied on at trial as his evidence in chief, the claimant recounts that when he was thrown from the bus, he ended up in a ditch which ran across the road. Blood was all over his face and he felt pain over his entire body. He was rushed to the St. Ann's Bay Hospital where he was treated and released. In amplifying his witness statement, he said that he is currently experiencing excessive pain in his back and numbness of the lower limbs. This pain he says is usually felt when he stands for extended periods of time or whenever he participates in prolonged physical activity.

3 In his particulars of claim, the claimant pleaded the following injuries which he says he suffered as a result of the accident:

Medical reports from Dr Sandra Nesbeth dated January 31, 2017 and from Dr Rory Dixon dated August 10, 2017 were tendered and admitted into evidence. Dr Nesbeth is the Chief Medical Officer of SMN Medical Centre located in Linstead, St Catherine, and Dr Rory Dixon is a Consultant Orthopaedic Surgeon.

• a) Soft tissue injury to thorax and upper limbs

• b) Laceration to head

• c) Multiple abrasions

• d) Whiplash

• e) Soft Tissue injury to the shoulder, chest, elbows, hip and knee

• f) Joint injuries to the elbows and knee

• g) Back pain

• h) Reduced mobility in the upper and lower limbs

• i) 1-3% whole body impairment

• j) Disc protrusion at level C3 – C4 (cervical vertebrae (3) and four (4)

• k) Sock(sic) pain and suffering.

4 Dr Nesbeth saw the claimant on October 6, 2015, the day after the accident, and she gives the following graphic account of her findings on physical examination: -

• 1. Severe swelling and spasm in the neck – whiplash - equally painful on the right. The patient was in a lot of pain and had to be given a cervical collar to stabilize the injured muscles, joints and ligaments in the neck thus decreasing the spasm and pain.

• 2. Severe swelling and tenderness in the left and the right shoulders with difficulty elevating, weight bearing, internal and external rotation.

• 3. Severe swelling and tenderness in the front (anterior) aspect of the chest with difficulty breathing (inhaling and exhaling) and any upper body movement.

• 4. Severe swelling and tenderness in the left elbow extending to the middle 1/3 of the forearm. There are multiple abrasions (blood clots) and large bruises on the elbow extending also to the distal 1/3 (part nearest the elbow). The patient had difficulty pronating, supinating (upward and downward movement of the elbow), flexing and extending.

• 5. Severe swelling and tenderness of the right elbow with multiple abrasions (blood clots) and bruises. He had difficulty supinating, pronating (upward and downward movement of the elbow), flexing and extending.

• 6. Severe spasm and tenderness in the lower back equally painful on the left and right. He could not extend, flex or sit without experiencing severe pain.

• 7. Severe swelling and tenderness of the left hip on the greater trochanter (the fat part of the hip.) He could not stand on the left lower limb and had to use the right to carry his weight.

• 8. Severe swelling and tenderness in the left knee with multiple bruises. He could not invert, evert (moving knee to the inside or outside,) flexing and extending. He presented limping.

5 On her account of the claimant's follow up management, Dr Nesbeth says that he visited her office twenty-five times. She describes dressing his wounds daily for four days and thereafter every other day. According to her, he had to be given injections twice daily for the first two weeks and the first seven months represented a period of difficult recovery for him. An MRI revealed disc protrusion at level C3-C4, however Dr Nesbeth was inconclusive as to whether there is a causal connection between this injury and the accident. She candidly states that no MRI or x rays were done prior to the accident which could be used to make the comparisons which are necessary for a conclusive finding

6 Dr Nesbeth's medical report supports the claimant's claim that he suffered a whiplash, soft tissue and joint injuries, as well as back pain and reduced mobility in the upper and lower limbs. She placed the claimant on 3 weeks’ sick leave, he was given a cervical collar, chest, elbow and knee wraps, a back brace and his left elbow placed in an arm sling. She describes these devices as aids to stabilize the claimant's injured muscles, joints, tendons and ligaments, thereby reducing his pain. She administered tetanus and penidure injections to stave off infection and referred the claimant for physiotherapy and orthopaedic consultation.

7 On May 4, 2017, the claimant went to see Dr Rory Dixon, Orthopaedic Surgeon, complaining of recurrent neck and back pains. Dr Dixon reports that on his examination of the claimant, there was no tenderness in the posterior neck muscles on palpation, there was no pain on the movement of the neck and no neurological deficit in the upper limbs. There was however tenderness in the L4, L5 region on the left, the “straight leg raise test was positive and the bow string test was negative”. Normal power and sensation were in the lower limbs. Dr Dixon makes reference to an MRI of the spine done on August 4, 2016 which showed loss of normal lumbar lordosis, in keeping with muscle spasm and mild degenerative changes in the lumbar spine at L4, L5. He says that a normal thoracic spine was observed along with disc degeneration at C3, C4 in the neck. Dr Dixon ultimately assessed the claimant as having neck and back strain, with recurrent pain.

8 In his assessment of impairment, Dr Dixon describes the claimant as being incapacitated for at least three months with recurrent back and neck pains, which he opines, may require repeated treatment with analgesics. He assessed the claimant's whole person impairment attributed to the recurrent back pain at 3%. As it relates to the neck pain, the Doctor described it as having improved considerably, leading him not attributing any impairment to it.

Pecuniary Losses

9 Several receipts were tendered into evidence by the claimant to prove his claim for special damages. These receipts were said to relate to the expenses incurred for the medical reports of Doctors Sandra Nesbeth and Rory Dixon; prescription drugs, an MRI, transportation costs and the cost to repair a cellular phone which the claimant said was damaged when he was thrown from the bus. The claimant also tendered into evidence his fortnightly salary slip from his employer Mystic Mountains to support his claim for loss of income.

10 This is how the special damages are pleaded in the particulars of claim: -

a) Police Report		-	$ 3,000.00
b) Medical Report from St. Ann's Bay Hospital		-	$ 1,000.00
c) Medical Report from Dr Nesbeth		-	$ 35,000.00
d) Medical Treatment from Dr Nesbeth		-	$ 86,400.00
e) Medical MRI Services		-	$ 78,000.00
f) Damages for Mobile phone		-	$ 2,000.00
g) Sambell's Discount Pharmacy		-	$ 11,783.41
h) Dixon's Drug Store		-	$ 8,793.48
i) Loss of Income		-	$ 16,000.00
j) Transportation
	(i) To hospital	-	$ 6,000.00
	(ii) To Attorney's office	-	$ 24,000.00
	(iii) To police station	-	$ 18,000.00
	(iv) To Dr Nesbeth	-	$ 104,000.00
	(v) To pharmacy	-	$ 40,000.00
			Total: $ 433, 976.00

11 The claimant testified that he incurred out of pocket expenses totalling $478,976.89. There are no pleadings in relation to the cost of Dr Rory Dixon's medical report, which in his evidence the claimant says amounted to $45,000.00. The claimant also gave evidence at trial of receiving treatment from Dr G. Dundas. He tendered into evidence a receipt from Orthopaedic Associates totalling $10,000.00. As with Dr Dixon's medical report, this expenditure was also not pleaded. I will return to this issue of the pleadings later on in the judgment.

The Claimant's Submissions

12 Counsel Mr Obeka Gordon started his submissions by pointing to Dr Rory Dickson's assessment of the claimant's whole person impairment. In doing so, he commented on the fact that the claimant's evidence is that he continues to experience excessive pain in his back and numbness to the lower limbs, and that he feels pain in his legs if he stands for long periods of time or participates in...