Cagan (Bertrand) v Edward Ramsay, Canute Sinclair and Hazel Sinclair

• Jurisdiction: Jamaica
• Judge: COURTENAY ORR J.
• Judgment Date: 01 October 1999
• Judgment citation (vLex): [1999] 10 JJC 0101
• Court: Supreme Court (Jamaica)
• Docket Number: SUIT NO C 191 OF 1996
• Date: 01 October 1999

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO C 191 OF 1996

BETWEEN

BERTRAND CAGAN

PLAINTIFF

AND

EDWARD RAMSAY

FIRST DEFENDANT

AND

CANUTE SINCLAIR

SECOND DEFENDANT

AND

HAZEL SINCLAIR

THIRD DEFENDANT

NEGLIGENCE - Motor vehice accident - Pre-existing condition - Assessment of damages

COURTENAY ORR J

1 On July 1, 1990, the plaintiff who was on holiday from Canada was a passenger in a car driven by the first defendant, Edward Ramsay, and owned by the second and third defendants. The plaintiff was seated in the back of the car. The third defendant was also in the car. They were returning to Darliston from Negril, and after passing Whithorn in Westmoreland, the car was going up a lull when it hit a light post on the left side of the road, turned over, and plunged into a gully. The plaintiff became unconscious.

2 He regained consciousness in hospital two days later. His face was swollen, he had a headache. There was a big hole in his forehead, cuts on his hand and a cut below his left eye. He was in pain, bleeding and smelt of stale blood. He spent two days in hospital but left the hospital the evening on which he regained consciousness, returned to the third defendant's home in Lennox, Bigwoods in Darliston, and then on to Canada where he was then living.

3 At the time of the accident he was sixty years of age and employed to Ford Motor Company in Canada as a welder. He did not return to work until 3rd December, 1990.

4 He said he did not resume duties earlier because of a scar and the fact that his hand had not healed sufficiently, he was then still under medical treatment and he was not seeing well. At the time of giving evidence he complained of still suffering from periods of dizziness.

5 When he was injured he was earning $16.00 Canadian per hour plus an allowance for midnight shift work when he worked at that time. He also received a cost of living allowance. On an average week he took home $900.00 Canadian, after tax. During the time when he was not working he received a sick and accident benefit of $410.00 Canadian per week after tax.

6 He had to pay an air fare of $756.00 Canadian, to attend court.

7 In June 1991, he was involved in another accident when a car collided with the back of the car in which he was driving. This caused a whiplash injury and pain in his shoulder for which he received therapy. Within a month, in July 1991, he had a "slight left side stroke". He has not returned to work since the stroke.

8 He maintained that neither the stroke nor the second accident had affected his eyesight, but he admitted that between 1992 and 1993 he was diagnosed as having glaucoma. He has been suffering with high blood pressure for twelve years but said it has constantly been under control. He insisted that the dizziness which he has been experiencing was not due to hypertension as he began to suffer from dizziness before the second accident.

9 The dizziness occurs when he gets up in the mornings and when the sun is hot, hence he wears a hat and tested glasses.

10 He applies drops to his eyes. His lawyers in Canada had advanced the payments to the doctors who treated him.

11 Medical reports from three doctors were admitted in evidence: firstly, 3 from Dr H. Misir MD FRCS (c) DABS., dated August 31, 1993, Exhibit 1(a), September 1992, Exhibit 2, and 1st January 1999. - Exhibit. 3. Secondly, 2 by Dr Chosen Lau, MD FRCS (c) FACS. Plastic, Cosmetic and Hand Surgeon.. One dated January 30, 1997, the other undated - Exhibits 1(c) and 1(d) respectively. Thirdly, a report dated 17th July 1990 - Exhibit 1(b) from Dr Tom Ing MD

12 The plaintiff asserted the blow to his eye affected his sight. Miss Walters submitted that the evidence on this aspect of his injuries was not very clear.

13 The evidence on this matter is as set out thereunder:

(1) The plaintiff said:

"I lost feeling in area in forehead (i.e. area of injury). After a while I couldn't see well.

Used to see darkness so I went to Doctor Chenese, Doctor Ing. He test eyes and gave me drops.

I returned to work 3.12.90. Didn't return before because scar and hand not well cured. I still under medical. Also I couldn't sec good ..."

Used drops in right eye for glaucoma. I wear tested glasses. Doctor told me I had glaucoma 1992-1993. Now say 1993. From 1992 to 1993.

14 (2) Dr Misir whom the plaintiff visited right after his return to Canada on 14th June 1990, wrote:

"On his return to Canada on July 14 1990, he was seen by me. He had two problems of serious concerns at that time. He was treated by Dr. C Lau for the cosmetic defect of his forehead. He was seen and treated by Dr T Ing for his...