Buckeridge v Jamaica Public Service Company Ltd

• Jurisdiction: Jamaica
• Judge: Bingham, J.
• Judgment Date: 08 January 1993
• Court: Supreme Court (Jamaica)
• Docket Number: C.L. B089 of 1988
• Date: 08 January 1993

Supreme Court

Bingham, J.

C.L. B089 of 1988

Buckeridge

and

Jamaica Public Service Co. Ltd.

Appearances:

P. Beswick, T. Ballentyne and C. Dunkley for plaintiff

Mrs. P. Benka-Coker Q.C. instructed by C. Honeywell of Clinton Hart & Co. for the defendant.

Damages - Personal injury — Arm injury — Quantum

Bingham, J.

1 The hearing of this action occupied some seven days extending over a period of eighteen months. The formal evidence was concluded an 30th July, 1992. This, however, did not bring the matter to a finality to enable the evidence to be examined, assessed and a judgment prepared for delivery. When the viva voce evidence was concluded just prior to the end of the Trinity Term in July 1992, counsel who had not yet made their final addresses agreed to prepare and deliver to the court written submissions within twenty-one days. Although the submissions of the defendant's attorney-at-law were received into the Registry of the Supreme Court on 19th August this did not come to hand until 12th October. The written submissions of the plaintiff's attorneys-at-law were received on 4th September. The result of all this meant in effect that the evaluation and assessment of the evidence and the submissions could not commence until 12th October 1992 when both submissions were now available to the court. It is against this background that any suggestion of a delay in the preparation of this judgment has to be considered.

2 The facts

3 The plaintiff Kenneth Buckeridge a temporary worker employed to the defendant company for some thirteen years and now in his fortieth year was on 28th November 1984 seriously injured while working at the defendant's power plant at Hunts Bay in the parish of Saint Andrew. While engaged in maintenance work at the said poi plant the plaintiff's right hand, this being his dominant limb, got caught into a rotar blade injuring it just below the left elbow. The machine to which the rotar blade was affixed was unfenced and unguarded which meant that there was a strong presumption of negligence being raised up on the part of the defendant's servants or agents to protect workers such as the plaintiff in the course of their employment from injury or harm. Liability was at first denied by the defendant, but was when the matter came on for hearing on 28th November 1990 admitted by the defendant as the hearing was continued as being one where the sole issue remaining was as to the quantum of damages to be awarded to the plaintiff.

4 As a result of the incident on 28th November, 1984 the plaintiff suffered the several injuries described in the evidence given by Dr. Horace Jackson as a result of examinations carried out on him on July 1985 and November 1990. On examination of the plaintiff Dr. Jackson observed the following injuries:

Right deltoid area (shoulder) posteriorally. There is a 7.5 centimetres vertical linear scar. 2. The right forearm extensor aspect. There is an 18.75 centimetres curved linear scab along the subcutaneous ulva border crossing the dorsal aspect of the wrist joint. This scar is keloid, hypertropic (overgrown) and highly pruritic (itches a great deal). 3. The right hand dorsal aspect (back of hand). There is a 9 centimetres linear sent extending into the second web space and into the central palm. 4. There is a six centimetres linear scar extending into the first web space and the central palm. 5. There in a 4.5 centimetres keloid curve linear scar on the distal-radial aspect. 6. There is a one centimetre keloid scar on the radio-volar aspect of the distal forearm. 7. The right thumb. This digit exhibits a full range of movements with pain at the extremes of movements when the thumb is extended, opposition is intact on all fingers except the right middle finger and the missing fifth finger. 8. The right index finger. This digit exhibits full range of movement at the proximal and distal inter-phalangeal joints. The metacarpo-phalangeal joint has a limited range of movement - about 5 degrees extension and 5 degrees reflexion from the natural position of movement. 9. The right middle finger. This digit is very short showing a deficiency in length of about four centimetres. The corresponding matacarpal-phalangeal joint appears to have been converted into a pseudoadrosis (a false joint) following excision of the original joint. This false joint is very tender. There is no flexion at the metacarpal-phalangeal joints. The proximal and distal metacarpo-phalangeal joints showed a fixed flexion deformity of about 15 degrees. 10. The right ring finger. This digit shows a flexion deformity of the proximal inter-phalngeal joint shows a full range of movement. 11. The right fifth finger. This digit is absent. The head of the fifth metacarpol projects and it is tender.

1 Grip. The grip for two fingers when the plaintiff is asked to hold two fingers is zero. The grip for the wrist was very poor.

5 The above reproduces the evidence of Dr. Jackson of his examination of the plaintiff in July 1985. At that time he assessed the plaintiff's total functional ability at 60%, Following an examination of the plaintiff in November 1990, done no doubt with the pending hearing of this claim which commenced later in the same month, Dr. Jackson revised this assessment to 50%.

6 Although the extent of the plaintiff's injuries have now left him with a limited use of his right hand, he is not entirely without some use of the hand. Apart from being able to attend to himself, as the plaintiff has shown he can manage some form of work having been engaged as a casual worker at the office of the defendant company at Hunts Bay for a period of six weeks, earning a salary of $200.00 per week. The plaintiff also admitted to being capable of performing some type of work from August 1985. In this regard as he would be under a duty to take some steps to mitigate his loss, on the question of the award for damages in the area of his claim for loss of earnings and loss of future earnings, both of these heads of the claim will have to be considered against the background of the fact that the plaintiff was capable of some form of work from August 1985. As to the claim for loss of future earnings any award made would have to be posited on that of a reduced earning capacity, and not one of a total loss of earnings situation as contended for by his attorneys-at-law in their written submissions.

7 When the totality of the evidence is examined therefore the damages fall to be assessed under the following broad heads-

1

Special damages 2. General damages for: a) Corrective Surgery b) Pain and suffering and loss of amenities c) Loss of future earnings

Special damages

8 There can be no question as to the fact that the items claimed in the part of special damage all admit of some award. The precise amount, however, as in all instances where special damage is claimed is dependant on the evidence given in support of the claim. In this regard the dictum of Lord Goddard, C.J. in Bonham-Carter v. Hyde Park Hotels, Vol. 64 (1948) T.L.P.171 at 178 is of relevance. Being in the nature of special damages such claims must be specifically alleged and strictly proven.

9 When the above yardstick is applied to the items claimed the result is as follows -

Cost of household helper

The period for which the plaintiff can recover his loss is limited to the claim from December 1984 to March 1987. After this date the plaintiff's relationship with his helper had altered to that of a common law union. During the period under review the plaintiff testified to paying her wages of $60.00 per week at one time and $70.00 per week on another occasion. The Statement of Claim having pleaded the lower sum, in the absence of any amendment by the plaintiff's attorneys-at-law, he is limited in his recovery to that sum. On the basis of a total period of 116 weeks, being that petitioned from December 1984 to March 1987 at $60.00 per week results in the sum recoverable under this head being $6,960.00. The fact that following March 1987 the status of the plaintiff's helper was elevated to that of a more intimate nature the tasks of general house-keeping which she now performed were of a nature which would be incidental to that which one would ordinarily expect a person placed in such a position to perform on behalf of the entire household. In this regard the case of Parry v. Cleaver (1969) Lloyds Reports 183 referred to by learned attorneys-at-law for the plaintiff is not directly in point. The facts is that cases are more applicable to a situation where the condition of the plaintiff was of such a nature and the assistance being rendered to him so essential that without it he would not be able to perform those tasks for himself. The plaintiff in the instant case after March 1987 was quite capable of being able to do the housework. The fact that he did not do it as he stated was due more out of a dislike for that type of work.

Cost of household helper

10 (ii) Transportation Expenses.

The pleadings alleged some 69 visits to the clinic at the Kingston Public Hospital at a cost of $40.00 per visit. Under cross-examination the witness called by the plaintiff Derwin Edwards testified to the defendant providing transportation to the hospital for the plaintiff at his request on at least twenty (20) occasions. The plaintiff while not agreeing in toto with this account, agreed that the defendant company had provided him with such transportation at his request on a number of occasions. The evidence of Mr. Edwards was allowed to go unchallenged and I am minded therefore to accept his account with the result that the claim is allowed only in respect of forty-nine (49) visits and the sum recoverable under this head is therefore limited to $1,960.00.

11 (iii) Loss of pants and shirt.

Although these two items were claimed separately they can be conveniently dealt with together. They are not...