Brown (Angeleta) v Petroleum Company of Jamaica Ltd and Juici Beef Ltd

• Jurisdiction: Jamaica
• Judge: McDONALD-BISHOP. J. (Ag.)
• Judgment Date: 27 April 2007
• Judgment citation (vLex): [2007] 4 JJC 2706
• Court: Supreme Court (Jamaica)
• Date: 27 April 2007

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

BETWEEN

ANGELETA BROWN

CLAIMANT

AND

PETROLEUM COMPANY OF JAMAICA LIMITED

FIRST DEFENDANT

AND

JUICI BEEF LIMITED

SECOND DEFENDANT

Mr. Richard Reitzin

Ms. Christine Mae Hudson

Second defendant

DAMAGES - Pain and suffering - Loss of amenities

DAMAGES - Post Traumatic Stress Disorder - Earning capacity

McDONALD-BISHOP. J. (Ag.)

1 Miss Angeleta Brown, the claimant, is now 29 years old. She is employed as counter clerk at the second defendant's company. On May 13, 2002, while being employed in the same capacity, she was at work wrapping knives and spoons in section at the back of the second defendant's building at its Lane Plaza Branc Liguanea, St. Andrew. She was in the company of two of her co-workers.

2 Whilst there engaged in the execution of her task, an employee of the first defendant's company was in the process of refilling a commercial LPG cylinder i close proximity to where the claimant and her colleagues were working. The claimant started to smell escaped fumes of gas and spoke to the first defendant employee about it. Shortly after speaking to him, she heard an explosion and immediately she started to feel burning sensation all over her body but in particular to her hands and feet. She sustained extreme burn injuries to her body and was hospitalized for one month and two days.

3 Consequently, by claim form filed on May 4, 2004, she initiated proceedings against both defendants in negligence for damages for the injuries, losses and damages that she has suffered and continues to suffer as a result of the explosion. The defendants both failed to file a defence within the prescribed time and so interlocutory judgment in default of defence was entered against them for damages to be assessed. The defendants have both failed in their efforts to have this judgment set aside and so now the case falls for assessment of damages before me.

4 I will seek to assess general damages in accordance with the claim for damages under the orthodox heads: pain and suffering; loss of amenity and loss of future earnings or loss of earning capacity. In approaching that task, I will adopt the useful guidelines formulated by Wooding, C.J. in the Trinidad and Tobago case of Cornilliac v St. Louis (1965) 7 WIR, 491 and will therefore take into account, in assessing general damages, the following:

PAIN AND SUFFERING

• -the nature and extent of the injuries sustained;

• -the nature and gravity of the resulting physical disability;

• -the pain and suffering which had to be endured;

• -the loss of amenities suffered; and

• -the extent to which, as a result, the plaintiffs pecuniary prospects have been materially affected.

5 The aim of an award of damages under this head is to compensate the claimant for the pain and suffering which has been suffered in the past, that is, immediately following on the agony of the explosion itself and in its immediate aftermath and also for the pain suffered consequent on medical and surgical treatments. It is well established too that compensation should take into account mental suffering and matters personal to the claimant that may increase the suffering. It may also take into account other less specific factors such as embarrassment, for instance, consequent upon facial scarring. The claimant's age and life expectancy may also be relevant if there is to be a substantial continuing period of pain and suffering (see: Craig Osborne, Civil Litigation, Legal Practice Course Guides 2005– 2006, p. 12 (Oxford University Press).

The nature and extent of the injuries sustained

6 The claimant's testimony that upon the explosion she felt burning to her body, in particular her hands and feet, has been confirmed by credible medical evidence from doctors attached to the University Hospital of the West Indies (UHWI) at which the claimant was admitted.

7 Dr. Rajeev Venugopal, plastic surgeon, in his report of May, 20, 2003 (exhibit 2) has certified to my satisfaction that on the day of the incident, the claimant presented at the Accident and Emergency Unit of the hospital with burns to her skin. He reported the nature and extent of the claimant's injuries as follows:

• • superficial partial thickness burns to anterior head and neck of 4% Total Body Surface Area (TBSA);

• • a combination of superficial and partial thickness burns of both upper limbs involving the distal arm, forearm and hands. The estimated TBSA involved of this region was 10%;

• • deep and superficial thickness burns to the legs with 10% of TBSA involvement;

• • assessment was of 24% total burnt area; and

• • inhalation injury.

8 Dr. Derek Mitchell, consultant general surgeon at the UHWI, has also confirmed and certified, to my satisfaction, that the claimant, on the day of the incident, presented with flame burns to her face and limbs. He reported that there were partial thickness burns to the face (including both eyelids and ear lobes), neck, both upper and both lower limbs with an estimated 20–24%) body surface area. It can be accepted then, that the TBSA involvement was estimated at somewhere between 20–24%.

9 Upon admission to the hospital, the claimant received treatment that is summarized by Dr. Venugopal as 'acute burn care management'. That involved pain relief with narcotics, tetanus prophylaxis, fluid resuscitation, burn wound care with jet debridement and topical antibiotics and gastric prophylaxis with Rantidine. She was closely monitored for the initial 72 hours for any deterioration of her respiratory status and for adequate fluid retention. The wounds were managed with a closed dressing system with topical antibiotics and had daily dressings.

10 The claimant also testified that the joints in her elbow and hand became stiff and that she was unable to stretch her limbs. This necessitated physiotherapy. The medical reports do confirm that she was referred for physiotherapy for improving the joint range of motion and to prevent contractures. This was carried out on a daily basis.

11 The reports indicated that she made slow but steady progress which was uncomplicated. She was given dressing to improve the healing rate. She was also referred to the reconstructive surgeon for skin grafting. On June 4, 2002, split skin grafts harvested from her right thigh was applied to her right elbow and right ankle. The elbow was splinted following the procedure. She, reportedly, recovered well from the surgery and was discharged from hospital on or around June 15, 2002.

12 She continued to receive outpatient dressings and physiotherapy on a daily basis. Pressure garments were ordered for the limbs, as the risk of hypertrophic scars and keloid formation was high.

13 Photographs taken of the claimant while in hospital (exhibits 11A &11B) revealed in a clear and indisputable manner the nature of the injuries sustained by the claimant. Extensive stripping of the outer layer of the skin (epidermis) in the region of the face and limbs are duly noted. It does not present a pleasant sight. This supports her contention that her skin started falling off from her face and hands after the explosion.

14 Upon her discharge, she was reviewed by Dr. Derek Mitchell on June 26, 2003. By that time, he found her to be in general good health. She complained of pain to the right leg on prolonged standing. She also had keloid scars on her earlobes, forearms, hands and lower legs. Her face had healed and re-coloured to normal. This doctor opined then that he did not believe that there would be any further improvement in her physical appearance without reconstructive surgery. She was then referred for further reconstructive surgery.

15 The claimant, upon her discharge from hospital, was seen and treated on several occasions by Dr. Venugopal the reconstructive surgeon. He has documented her course of treatment and her progress over a five year period. It is seen that she had repeated infections in the keloid scars located on her hands and she had to undergo several corrective surgeries. She continued treatment at the plastic surgery clinic following on these operations.

16 The claimant was also treated by Dr. Yap, a consultant dermatologist, for further management of her skin injuries. In her report dated November 18, 2003 (exhibit 4) Dr. Yap reported, and I do accept it, that the claimant was seen by her on ten visits between November 6, 2002 and November 12, 2003. She documented the dermatological injuries as follows:

The nature and gravity of the resulting physical disability

• • superficial burn to the face and neck with post inflammatory hyperpigmentation;

• • keloid formation along the helix of both ears;

• • second and third degree burn to both upper and lower limbs with loss of epidermis and partial loss of the dermis. This resulted in keloid formation on the both hands, the forearms, the front section of the legs and along the helix of both ears.

17 The claimant now has scars at the sites of injuries on her hands, feet and ears. Her face is, fortunately for her, back to normal and is showing no significant residual signs of her ordeal. Dr. Yap has reported that the hyper-pigmentation resulting from the burns to her face has resolved with treatment with no cosmetic disfigurement.

18 Dr. Yap found that the injury to the deeper tissues in her legs has impaired the blood circulation in her legs and so she will be required to wear supportive stockings for the rest of her life in order to improve circulation and to help to prevent leg oedema, which can cause the formation of leg ulcers. She also opined that the loss of pigmentation and an increase in pigmentation in some areas of the legs are permanent. The cosmetic disfigurement is assessed at 100% disfigurement for her legs. She will need to wear sunblock in the area where there is no pigment to protect her...