Bailey (Salome) v Virginia Dare (Jamaica Ltd) and Cleveland Davis
| Jurisdiction | Jamaica |
| Judge | HARRIS J. |
| Judgment Date | 10 November 1999 |
| Judgment citation (vLex) | [1999] 11 JJC 1001 |
| Court | Supreme Court (Jamaica) |
| Date | 10 November 1999 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
NEGLIGENCE - Motor vehicle accident - Admission of liability - Leave to amend special damages - Factors to be considered in assessing damages
On the 22 nd April, 1993 the plaintiff was driving her Opel Corsa motor car along the Spanish Town to Old Harbour main road in the parish of St. Catherine when a motor truck owned by the first defendant collided with her motor vehicle. Liability had been admitted by the defendants. The assessment of the damages to be awarded to the plaintiff now falls for consideration.
Leave to amend the particulars of injuries and particulars of special damages of her statement of claim was sought and obtained by the plaintiff. The particulars of injuries as outlined in the amended statement of claim are as follows:-
(i) Two centimetre (2 cm) swelling to forehead.
(ii) Tenderness over right shoulder.
(iii) Tenderness over left hip.
(iv) Fracture of the left ileum.
(v) Cracked fracture of the left illine bone.
(vi) Posterior disc herniations at C4-5, C5-6 and C6-7, creating cord impingement without obvious myelopathy .
(vii) Degenerative spondylosis and loss of lordosis in the spine.
(viii) Unhealed fractures of C5 and C6 vertebrae.
(ix) Grade 1 anteolisthesis of C6 and C7.
(x) Intra-articular swelling in the right C5 and C6 facet joint.
(xi) Interspirous ligament injury to C5-C6 and C6-C7.
(xii) Injury to the posterior ligaments at C5-C6 and C6-C7."
The claim as expressed in the amended particulars of special damages is stated hereunder:-
| "Medical Treatment | |||
| (i) | Payment to Dr. Notice | $ 1,200.00 | |
| (ii) | Payment to Dr. Miller (Opthalmologist) | 1,100.00 | |
| (iii) | Payment to Dr. Dundas | 3,850.00 | |
| (iv) | Payment to Dr. Cheekes | 600.00 | |
| (v) | Payment to Dr. Fowler | 450.00 | $ 7,200.00 $ 7,200.00 |
| (vi) | Payment for two (2) MRI Scan examinations @ $19,200.00 each. | $38,400.00 | |
| (vii) | For one C.T. Myleogram | 3,643.00 | |
| (viii) | For Lumber Puncture Investigation | 1,312.00 | |
| (ix) | For one (1) x-ray Examination | 350.00 | $43,705.00 $50,905.00 |
| Payment for Physiotherapy Treatment | |||
| (x) | To Mrs. Swyre Forbes | 3,285.00 | |
| (xi) | To Mrs. Bernadette Frankson | 5,385.00 | |
| (xii) | To Spanish Town Hospital | 40.00 | $ 8,710.00 $59,615.00 |
| Payment for Medical Reports | |||
| (xiii) | To Dr. Dundas (for several Reports | $ 7,500.00 | |
| (xiv) | To Dr. Notice | 600.00 | |
| (xv) | To Dr. Miller | 1,100.00 | $ 9,200.00 $68,815.00 |
| TRAVELLING EXPENSES | |||
| (i) | 1993 - Cost of Airline Ticket to Miami for MRI Scan examination | $ 3,737.00 | |
| (ii) | 1994 - Cost of Airline Ticket to Miami for second MRI Scan examination | 5,707.00 | $ 9,444.00 $78,259.00 |
| (iii) | Amount paid for ambulance | $ 800.00 | |
| (iv) | 1993 - Travelling by taxi on all occasions for medical treatment | 7,000.00 | |
| (v) | 1994 - Travelling by taxi on all occasions for medical appointment and treatment | 8,600.00 | |
| (vi) | 1995 - Travelling by taxi on all occasions to keep medical appointments. | 2,600.00 | $24,700.00 $102,959.00 |
| PURCHASE OF SPECIAL ARTICLES | |||
| (i) | One (1) pair of tested glasses | $ 278.40 | |
| (ii) | One (1) pair of cervical collar | 350.00 | |
| (iii) | One (1) pair of cervical collar | 1,100.00 | |
| (iv) | One (1) cervical pillow | 2,640.00 | |
| (v) | One (1) electrical heating pad | 415.04 | $ 4,783.44 $107,742.44 |
| NURSING AND DOMESTIC SERVICES | |||
| (i) | Employment of practical nurse From 27/4/93 to 10/5/93 | 2,000.00 | |
| (ii) | Employment of domestic helper From 11/5/93 to 3111//12/93 | 7,426.00 | |
| (iii) | Employment of domestic helper | 19,650.00 | |
| (iv) | Employment of domestic helper | 21,760.00 | |
| (v) | Employment of domestic he per from 2/1/96 to 28/6/99 and continuing. | 11,790.00 | $ 62,626.00 $170,368.44 |
| LOSS OF INCOME | ||
| Loss of earnings from 25/5/93 To 28/6/96 for thirty-seven Months @ $5,282.86 per month | $195,465.82 | $195,465.82 $365,834.26 |
| MISCELLANEOUS EXPENSES | |||
| (i) | Overnight accommodation at St. Joseph's Hospital | $ 250.00 | |
| (ii) | To Spanish Town Hospital | 200.00 | 450.00 $366,284.26 |
| PURCHASE OF MEDICATION | ||
| Purchase of medication as Prescribed during the period | $2,834.00 | 2,834.00 $369,118.26 |
| ADDITIONAL MEDICAL EXPENSES | |||
| (i) | On 13.12.96. Follow-up visit To Dr. Dundas | $ 400.00 | |
| (ii) | On 16/1/97 to 18/5/98 Six (6) visits to Dr. Dundas @ $500.00 each | 3,000.00 | |
| (iii) | On 14/7/97 and 5/8/98 Payment to Dr. Dundas for two (2) medical reports @ $5,000.00 each | 10,000.00 | |
| (iv) | Taxi fares from home to Dr. Dundas between 13/12/96 and 5/8/98 - Sever. (7) times @ $800.00 return | 5,600.00 | |
| (v) | On 13/12/96 to 17/2/98 Follow-up visits to the Physiotherapist - Three (3) Visits | 260.00 | |
| (vi) | Taxi fares from home to Spanish Town Hospital (Physiotherapist) and return. Three (3) times @ $100.00 each | 300.00 | |
| (vii) | On 20/1/99 Payment to Dr. Dundas for surgical fees on Right hand | 9,350.00 | |
| (viii) | On 14.1.99 to (10/2/99 Four (4) visits to Dr. Dundas @ $500.00 each | $2,000.00 | |
| (ix) | On 20/1/99 to 10/2/99 Taxi fares from home to Dr. Dundas and return - Five (5) times @ $800.00 each | 4,000.00 | |
| (x) | On 17/12/98 Payment to Dr. Daniel S. Graham for Neura Diagnostic examination and report - | 8,000.00 | 42,910.00 $412,028.26 |
| FURTHER LOSS OF INCOME | ||
| Further loss of income from 29 th June, 1996 to 30 th September 1999; thirty-eight (38) months at $5,282.86 per month = | TOTAL | 200,748.60 $612,776.94 |
The plaintiff claims the sum of Six hundred and twelve, seven seventy six and ninety four cents."
I will first give consideration to the matter of general damages and only the question of pain and suffering will be considered under this head as evidence had been adduced relating to this head only. It was the complaint of the plaintiff that after the receipt of her injuries she experienced dizziness, a severe headache, pain in her neck, shoulders, left hip and left leg and weakness. She stated that she was bleeding from above her left eye. She also asserted that there was numbness in her ankles and she had "pins and needles" sensation in fingers of her right arm. She was taken to the Spanish Town hospital where she was seen by a doctor, sent to be x-rayed, given medication and sent home on bed rest. She remained in bed for a month as she discovered that she was unable to walk due to pain in her hip and swollen feet.
Her pain and discomfort persisted, rendering it necessary for her to be seen once again by a doctor at Spanish Town Hospital and twice by Dr. Notice who referred her to Dr. Dundas. She was seen by Dr. Dundas on 35 occasions. She was also seen by Dr. Randolph Cheeks and Dr. Daniel Graham.
Dr. Dundas gave evidence on her behalf. He confirmed that he had seen her on the occasions stated by her, beginning on 26 th June, 1993 and ending on the 8 th August, 1999.
His first examination of her revealed that her respiratory and cardiovascular systems were normal. The main abnormal findings related to her neck,, in which there was significant restriction of motion and marked tenderness on palpation. He also found that in her right upper extremity, she had diminution in sensation, weakness in her grip and finger movement, reduction in her deep tendon reflexes and spasms in her right trapesius. She retained good range of movement and displayed no neurovascular deficits in her legs.
His review of x-rays done at Spanish Town hospital revealed a fracture of the left side of her pelvis, involving the anterior superior iliac spine. New x-rays of the neck were done, as those done at the Spanish Town Hospital were inadequate. The new x-rays showed a narrowing of the space between 5 th and 6 th vertebrae and also a misalignment of the 6 th and 7 th vertebr...
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