Brown, Roger v Cecil Bassaragh et Al

• Jurisdiction: Jamaica
• Judge: BROOKS J.
• Judgment Date: 28 July 2003
• Judgment citation (vLex): [2003] 7 JJC 2801
• Court: Supreme Court (Jamaica)
• Docket Number: SUIT NO. C.L.2002/B092
• Date: 28 July 2003

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. C.L.2002/B092

BETWEEN

ROGER BROWN

PLAINTIFF

AND

CECIL BASSARAGH

1 ^ST DEFENDANT

AND

SHELDON BASSARAGH

2 ^ND DEFENDANT

AND

MICHAEL TULLOCH

3 ^RD DEFENDANT

AND

ERROL M ^c KENZIE

4 ^TH DEFENDANT

^{st nd}

DAMAGES - Motor vehicle collision - Personal injuries - Pain and suffering - Loss of amenities - Future medical diagnostic processes - Special damages

1 Assessment of Damages

BROOKS J.

2 The Plaintiff in this action claims damages for negligence against the 1 ^st Defendant as the owner, and the 2 ^nd Defendant as the driver, of a motor truck which struck the motor car then being driven by the Plaintiff. The collision occurred on the 19 ^th September 2001 and as a result the Plaintiff suffered personal injuries. The damage to the motor car being driven by the Plaintiff is not a factor in the action.

3 A Writ of Summons was issued on behalf of the Plaintiff on 6 ^th June 2002. An Interlocutory Judgment in Default of Appearance was entered against the 16 ^st and 26 ^nd Defendants on the 256 ^th July 2002. These Defendants subsequently entered an appearance but have not contested liability. The action has since been discontinued as against the 36 ^rd & 46 ^th Defendants.

4 The injuries suffered by the Plaintiff as a result of the collision were outlined in a report from Dr. Mark Minott, who treated the Plaintiff on his being admitted to the Spanish Town Hospital. Dr. Minott's report has outlined that the Plaintiff had suffered:

• (a) injuries to the face and right side of the body

• (b) a painful right hip which had significant restriction of movement

• (c) swelling and tenderness in the right foot

5 Radiographs done, confirmed that there were fractures of the right acetabulum and of a metatarsal of the right foot. Treatment was initially by way of traction. Dr. Minott's report, after outlining these aspects, concluded with the following:

"He was treated in this manner for two weeks, and discharged on October 3, 2001. He was advised to ambulate with the aid of crutches for six weeks, non weight bearing on the right lower limb.

Mr. Brown was last seen on November 15, 2001 in the Orthopaedic Out Patient Clinic. At that time he was able to ambulate without crutches, comfortable (sic). He was discharged from the clinic on that visit.

Summary

Mr. Brown sustained injuries consistent with the stated history. He had a temporary disability of three months duration. He has healed with no permanent impairment."

6 Contrasted with this very positive report was the testimony of Dr. Grantel Dundas, who testified at the behest of the Plaintiff and whose written reports in respect of the Plaintiff's injuries were placed in evidence.

7 Dr. Dundas testified that he first examined the Plaintiff on 266 ^th April 2002. The Plaintiffs complaints, to Dr. Dundas, then were:

• (a) Pain in the right hip radiating to the right knee

• (b) Pain in the scrotum with sexual intercourse

• (c) Back stiffness

• (d) Numbness in the instep of the right foot.

8 An examination by Dr. Dundas along with reference to the X-Rays done at the Spanish Town Hospital allowed Dr. Dundas to initially report as to the Plaintiffs condition in the following terms.

"In the extremities, his gait was normal.

He executed full range of motion of the hips. He had pain at the extremes of rotation and abduction as well as flexion. There was no measurable wasting and power was rated as IV + /V in the adductors and abductors of the hip. His knee was unremarkable. In the examination of his foot, he exhibited mild limitation in eversion but no other pathology."

9 Dr. Dundas confirmed the diagnoses by Dr. Minott, but was more detailed, in that he reported the results of the X-Rays as showing:

"A minimally displaced fracture of the medial wall of the right acetabulum; the femoral head intact and no dislocation noted.

Fracture of the base of the third metatarsal - undisplaced."

10 Significantly, Dr. Dundas opined in his first written report that:

"Mr. Brown has not yet reached maximum medical improvement. I think that he will probably be at that point about a year from his injury. In the interim, he should continue a programme of physical theraphy for strengthening and mobilization of his right hip. No treatment is required for his foot."

11 In his oral testimony Dr. Dundas indicated that by the 266 ^th April 2002 the Plaintiffs metatarsal fracture had already healed and the fracture to the acetabulum was healing.

12 The Plaintiff consulted with Dr. Dundas on two later occasions being 106 ^th June and 296 ^th September 2002, respectively.

13 In June the Plaintiff complained of a pain in the right knee and low back in the vicinity of the kidney. The doctor found tenderness in the right kidney area with spasm in the muscles overlying that area. "However", said the doctor, "there was no evidence of any pathology distally."

14 Further the doctor said that the Plaintiff had complained of passing blood in his urine the very morning of the examination, yet when the urine was evaluated it did not reveal any blood.

15 When the Plaintiff was again evaluated in September 2002 he complained of pain in the right knee, back-ache and blood in his stool. At that time the Plaintiff "walked with a painful limp and pointed to his right hip and groin area as the sources of pain."

16 The examination recorded one new feature namely "a questionably positive test for miniscus injury to his right knee".

17 Dr. Dundas in a written report dated October 4, 2002 said in respect of the complaint of blood in the stool that, "I do not think that this is traceable to the injury itself."

18 Dr. Dundas' latter report which was addressed to the Plaintiff's Attorney-at-Law concluded with the following:-

"I suggested to Mr. Brown that he should have a CAT scan of his right hip performed. He also needs to have arthroscopy of the right knee to evaluate the internal status and, depending on the findings of these investigations, he could go on to have a program (sic) of physical therapy.

"Mr. Brown currently suffers from some disability relating to the right lower extremity. It would not be appropriate however, to quantitate these, as the values could change with time and a more enlightened diagnostic status."

19 Dr. Dundas maintained this opinion in his oral testimony.

20 When the Plaintiff entered the court to give evidence, he was wearing slippers. He walked slowly and with a limp. He requested to be seated as he said that he was unable to stand for any period. He generally projected a picture of despair arising from his physical situation, and had to be frequently reminded of the reason why he was in court. He cried at one stage during his examination in chief. His demeanor as a witness was wholly unimpressive. Upon finally leaving the witness box his...