Attorney General of Jamaica v Clarke (Tanya) (nee Tyrell)

• Jurisdiction: Jamaica
• Judge: FORTE, P. , WALKER, J.A , COOKE, J. A.
• Judgment Date: 20 December 2004
• Neutral Citation: JM 2004 CA 40
• Judgment citation (vLex): [2004] 12 JJC 2015
• Date: 20 December 2004
• Court: Court of Appeal (Jamaica)

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE WALKER, J.A THE HON. MR. JUSTICE COOKE, J.A

SUPREME COURT CIVIL APPEAL NO. 109 OF 2002

BETWEEN:

ATTORNEY GENERAL OF JAMAICA

DEFENDANT/APPELLANT

AND:

TANYA CLARKE (NÉE TYRELL)

PLAINTIFF/RESPONDENT

Susan Reid-Jones Nicola Brown

MichÈle Champagnie Kwame Gordon

MEDICAL NEGLIGENCE - Assessment of damages - Whether award for future medical expenses erroneous and excessive without support of medical evidence - Whether award of special damages an erroneous and excessive estimate of such damages - Quantum varied

FORTE, P.

1 I have read in draft the judgment of Cooke J.A. and agree with the reasons and conclusion therein. In particular I agree with the suggested awards. I too regret that in the absence of the required evidence in respect to "in vitro fertilization" no award can be made in that regard. There was a complete lack of such evidence where on the face of it the evidence was easily available. In those circumstances, as adumbrated by Cooke J.A., there is no basis for such an award. The nature of the case, makes that a regrettable fact.

WALKER, J.A

2 I agree.

COOKE, J. A.

3 This is indeed a tragic case. It evokes the deepest feeling of sympathy for the respondent. At nineteen years of age, experiencing pain, she sought medical attention. This was on the 1 ^st June 1995. That same day her ovaries were removed. This was a palpably negligent operation - for the respondent was suffering from ovarian cysts. The respondent became engaged some four weeks after her ovaries were removed. She subsequently got married and has since lived in the United States of America.

4 In the ensuing suit, liability was admitted and the matter proceeded to the assessment of damages. The defendants were the two doctors involved in that needless medical procedure and the appellant, who was joined as the hospital, in which the operation took place was owned and operated by the Government of Jamaica. On the 26 ^th August 2002 the court handed down its award as follows:

• "1. General Damages in the sum of J$4,125,000.00 with interest thereon at: 3% per annum from the 6 ^th of September 2000 to 26 ^th of August, 2002;

• 2. Special Damages in the sum of J$64,103.00 and US$28,414.00 with interest thereon at the rate of 6% per annum from the 1 ^st of June 1995 to the 26 ^th of August 2002;

• 3. The sum of US$139,469.00 for future medical expenses;

• 4. Costs to the Plaintiff to be agreed or taxed."

5 The grounds of appeal were:

• 1. The award for future medical expenses was excessive and erroneous because there was no expert medical evidence before the Court supporting either:

  • (a) multiplier of 16; or

  • (b) the majority of the items used in calculating the multiplicand.

• 2. The award of US$28,414.00 was an excessive and erroneous estimate of the special damages which the Plaintiff/Respondent was entitled to, as she was only able to prove to the court a total expenditure of US$803.70 and J$10,000.00."

6 Before embarking on a discussion on the merits of this appeal I will refer to some authorities which have dealt with the issue of the assessment of special damages. Thereafter I will endeavour to set out considerations which should attend this issue. As the appellant has placed great reliance on Lawford Murphy v Luther Mills (1976) 14 JLR 119, I will begin there. In this case our Court of Appeal accepted as correct the principle enunciated by Lord Goddard, C J. in Bonham-Carter v Hyde Park Hotel Ltd. (1948) 64 TLR 177 at 178 that:

"Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the Court, saying: 'This is what I have lost; I ask you to give me these damages.' They have to prove it."

7 In Ratcliffe v Evans (1892) 2 QB 524, Bowen, L. J. who delivered the judgment of the English Court of Appeal said at p. 532:

"As much certainty and particularity must be insisted on both in pleading and proof of damages as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry."

8 In Desmond Walters v Carlene Mitchell (1992) 29 JLR 173 at 174, Wolfe, J. A. (Acting), as he then was, in delivering the judgment of the court said at p. 176 C:

"Without attempting to lay down any general principles as to what is strict proof, to expect a sidewalk or push cart vendor to prove her loss of earnings with the mathematical precision of a well organized corporation may well be what Bowen, L. X referred to as "the vainest pedantry".

9 In Grant v Motilal Moonan Ltd. and Another( 1988) 43 WIR 372, a motor vehicle crashed into a house occupied by the plaintiff. She sued for negligence and claimed $22,044.00 for special damages in respect of the loss of a television set, a three-piece living room set, a buffet, a sewing machine, a refrigerator, foodstuff, clothing, glasses, kitchen cupboard and sundry items. At the trial she was unable to produce receipts as to the purchases of the various items. Further, there was no evidence of any valuation as to those items. Before the Master the defendants prevailed. The Master took the view that although the fact of loss was shown there was an absence of evidence of the amount of the loss. An ex gratia payment of $6,000.00 was awarded to be paid by the defendants. On appeal by the plaintiff the Trinidad Court of Appeal overturned the decision of the Master and awarded the full sum claimed. Two passages will be excerpted - the first is at p. 375f-376c:

"For the respondents it was submitted that the essential issue in the case was whether the quality of the evidence was such as to satisfy the undoubted rule with respect to a claim for special damage. The evidence adduced had to be reliable and must be on an ascertainable basis. The attorney for the respondents stated that he was prepared to accept that diminution in value was an area that was easier for verification than a case where a claim was made for the loss of household articles. Nevertheless, he contended that the evidence called by the appellant was lacking in particularity and certainty. In this connection he drew attention to the non-production of receipts by the appellant and the lack of evidence from a valuator. It was immaterial, he claimed, whether or not the evidence of the appellant had been challenged. In any event, there was a sufficient challenge to it when the appellant was questioned about the availability of receipts and a valuation by a valuator. He concluded that the evidence was so unreliable that the master was right to dismiss the claim and that the instant matter fell within Bonham-Carter v Hyde Park Hotel Ltd. Reference was also made to Chaplin v Hicks [1911] 2 KB 786 and Ashcroft v Curtin [1971] 3 All ER 1208.

For my part, I do not consider Chaplin's case and Ashcroft's case of particular materiality for determination of the issue at hand. We are not here concerned with future loss of opportunity (Chaplin's case ) or loss of earnings (Ashcroft's case) .

It should be noted, first of all, that the master did not disbelieve the appellant as to the nature of her loss. It seems clear from her reasons that she believed the appellant as to the proof of the extent of her loss but that she considered that the appellant was wanting in the proper proof of its cost. It is not correct to say, as the master did, that no evidence of any kind of the special damage was called. Such evidence was in fact called and was not really challenged. What was explored in cross-examination was the probative value of the evidence called in aid of the special damage which the appellant had allegedly incurred. I quite agree that, since the burden of proof is on the injured party, a defendant is not under any compulsion to call evidence in rebuttal. However, for reasons to which I shall come in a moment it should be noted that no evidence in rebuttal was called here. I would add that it would seem also that neither of the respondents (more particularly the first) availed himself of any opportunity to verify the nature of the damage that was done, either on the day in question or subsequently. If either had sought so to do and had in fact done so, one would have expected the appellant's story, at least with regard to the amount of her loss, to have met with more positive interrogation in cross-examination."

10 The other is at p. 378 j:

"In my view, the master erred. The appellant had called prima facie evidence of her replacement costs the fact of which, as I said, was unchallenged. At this stage I must pose the question whether in this country it is unreasonable, in a case of this kind, for a person to be unable to...