Courtney Livermore v Ezekiel Alexander Russell

• Jurisdiction: Jamaica
• Judge: Evan Brown, J
• Judgment Date: 29 September 2017
• Neutral Citation: [2017] JMSC Civ 134
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2013HCV00835
• Date: 29 September 2017

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2013HCV00835

BETWEEN:

Courtney Livermore

Claimant

and

Ezekiel Alexander Russell

Defendant

Mr. Paul Edwards instructed by Bignall Law for the claimant.

Ms. Nicosie Dummett for the defendant

Damages — Appropriate award for injuries sustained — Claimant sustained injuries to his cervical spine and lumbar spine resulting from a motor vehicular accident — Pre-existing injury to lumbar spine

Evan Brown, J

Introduction and background

1 Courtney Livermore was involved in a motor vehicular accident along the Central Village leg of the Mandela Highway on 3 ^rd day of January, 2012. The accident occurred when a motor vehicle driven by Ezekiel Russell, collided with the rear of the vehicle driven by Mr. Livermore. He suffered injuries and loss resulting from the impact. Mr. Russell admitted liability and judgment was entered on the 26 ^th March, 2014. He challenged the claim as to quantum and the matter proceeded to assessment.

Case for the claimant

2 Mr. Livermore was en route to Kingston in the right lane of the Mandela Highway. On his approach to a particular section of the roadway, he stopped his vehicle to allow pedestrians to cross the road. Shortly after halting his vehicle, Mr. Livermore said he experienced a “violent impact to the rear of the truck” which pushed his vehicle several feet forward. The impact initially left him shaken and with pains to his neck.

3 Two weeks following the accident, he visited the University Hospital of the West Indies for medical attention. However, following that visit, he continued to experience pains in his neck and back. He sought further medical attention on several subsequent occasions, but his pains continued until the time of assessment. He incurred transportation costs for those visits to the medical doctors. He did not receive a receipt for the cost of his transportation, but the total cost of his trips was $24,000.00.

4 He sometimes received a “crick” in his neck, which would cause numbness and increased difficulty to move in that region. He enjoyed playing football prior to the accident. Now, however, he would feel pains in his lower back whenever he played the sport. He further said that since the accident he has been experiencing erectile dysfunction.

5 Mr. Livermore said that his earning capacity was affected by his injuries, and further, that he lost a total of $1,012,000.00 in salary between June, 2012 and May, 2014.

The medical examination

6 Mr. Livermore was first examined by Dr. Oral Rose on the 20 ^th January, 2012. The results of that examination showed that there was tenderness to his cervical spine and lumbar spine. The power in all four of his limbs was normal, and the other systemic examination was normal.

7 Mr. Livermore was treated with parenteral analgesia and gastric protection. He was subsequently sent to have an X-ray done on his neck and lower back. The results showed no abnormality to those areas. In Dr. Rose's opinion, Mr. Livermore sustained soft tissue injuries to the neck and back arising from the motor vehicular accident. He was also given four days sick leave and discharged.

8 Mr. Livermore subsequently underwent another medical examination, and he was seen by Dr. Milton Forbes. In his report dated 7 ^th September, 2012, the results of Dr. Forbes' examination were: (i) muscle contusion, (ii) trauma to the lower back, (iii) whiplash and (iv) concussion. The X-ray results were normal and Mr. Livermore received treatment of analgesia and antispasmodic, muscle relaxant and physiotherapy.

9 Following his examination by Dr. Milton, Mr. Livermore was further examined by Consultant Orthopaedic Surgeon Dr. Philip Waite. In his report, dated 18 ^th July 2013, Dr. Waite recorded that Mr. Livermore “developed features of lower back pain with right lumbar radiculopathy after lifting” in 2011. Dr. Waite however noted that this issue was resolved within a month of treatment with analgesics. He received no physiotherapy.

10 Dr. Waite noted mild to moderate bony tenderness to his cervical spine, and mild to moderate bony and paravertebral muscular tenderness to his lumbosacral spine. In his assessment, Dr. Waite concluded that the mild neck pain which Mr. Livermore experienced was “secondary” to a cervical whiplash. He also concluded that Mr. Livermore had right lumbar radiculopathy at L5 disc.

11 In Dr. Waite's opinion, the injuries were consistent with the mechanism of the accident as described by Mr. Livermore. He also opined that the mild to moderate lower back pain with right lumbar radiculopathy at the L5 disc, was an aggravation or worsening of a pre-existing condition.

12 Mr. Livermore was given analgesics and advised to obtain a Magnetic Resonance Imaging, hereafter referred to as MRI, of the lumbosacral spine. He was examined again by Dr. Waite on 19 ^th October, 2012. On this occasion, his complaints were an occasional neck pain, lower back pain, and persisting radicular pains.

13 On the 25 ^th March, 2014, Mr. Livermore was again examined by Dr. Waite. Mr. Livermore experienced recurrent low back pain, and an occasional neck pain with lower prolong neck flexion. There was a recurrence of the low back pain when he stood or sat for extended periods. Mr. Livermore also complained of numbness to the right buttock which radiated to the toes of the right foot. Dr. Waite's assessment revealed that Mr. Livermore's cervical spine had mild tenderness to the right trapezius muscle.

14 Examination to the lumbosacral spine showed mild bony and muscular tenderness at L4-SI. The straight leg test was negative as there was full power. Sensation, however, was impaired to L5 and SI on the right, and the right ankle reflex was absent.

15 Dr. Waite examined Mr. Livermore's MRI which was done on the 16 ^th April, 2012. He concluded that the vertebral alignment was preserved while broad based disc bulges were noted at L4/5 and L5/SI. He also concluded that, at disc L4/5, the spinal cord was almost completely narrowed. Further, both exit foramina were almost completely narrowed.

16 There was resultant cauda equine and bilateral exit nerve compression. Dr. Waite noted similar changes at L5/ SI but to a lesser degree. He said: “The disc bulge is eccentric to the right causing cauda equina compression and spinal nerve compression”. He continued that Mr. Livermore's spinal cord was further narrowed by degenerate facet joints and thickened ligamentum flava at L4/5 and L5/SI.

17 He could not say, however, whether the spinal canal was narrowed by the accident. He said that the narrowing of the spinal canal may be caused by disc bulge, degenerative disease and aging. Dr. Waite however opined that both disc bulges and facet joint arthritis led to the narrowing of Mr. Livermore's spinal canal.

18 Dr. Waite's report continued with a Nerve Conduction Study done on Mr. Livermore on the 18 ^th May, 2014. He concluded that Mr. Livermore had mild chronic S1 radiculopathy. His final assessment of Mr. Livermore was that he was experiencing mild chronic neck pain, and chronic discogenic low back pain with clinical right radiculopathy at L5 and S1 and chronic cauda equine compression.

19 According to Dr. Waite, Mr. Livermore's chronic disc disease at L4/L5 and L5/S1, and mild S1 radiculopathy, were a progression of a pre-existing disease from a previous injury. Dr. Waite opined that a chronic mechanical neck pain has a class 1 impairment with 1% to 3% whole person impairment. Mr. Livermore cervical spine injury, in Dr. Waite's opinion, was equivalent to a grade A Class 1 injury or a 1% whole person impairment.

20 In similar manner he opined that a chronic multilevel discogenic lower back pain, with a clinical right lumbar radiculopathy at L5 and S1, has a class 4 impairment with 25% to 33% whole person impairment. The injury to Mr. Livermore's lumbar spine was equivalent to a grade A Class 1 injury or 25% whole person impairment.

21 On the 21 ^st October, 2015, Mr. Livermore was examined by another Consultant Orthopaedic Surgeon, Dr. Melton Douglas. He observed that Mr. Livermore sat comfortably for the consultation which lasted for 35 minutes. He walked with a normal gait and was able to walk on his heels and tip toe. The forward flexion in his lumbar spine was reduced, and he had flexion in his fingertips down to his ankle.

22 He also had full lateral flexion of the spine, while his knee reflexes were normal. There was no tenderness of the lumbar spine. He could stoop, and stand on one leg easily. The cervical spine was normal, except that on a lateral flexion there was mild pain on both the left and right sides of the neck. There were also neurological deficits in the lower and upper extremities.

23 These injuries, according to Dr. Douglas, were consistent with the vehicular accident described by Mr. Livermore. The accident resulted in his developing radicular symptoms from a prolapsed disc, which caused the pain that radiated from his lower back to the lower extremities. Dr. Douglas said that this diagnosis was confirmed with MRI scans and Nerve Conduction Studies.

24 Dr. Douglas' prognosis was that the long term outcome of Mr. Livermore's condition was unpredictable as it may or may not worsen. If it should worsen, it could be severe enough to warrant surgery. Dr. Douglas advised Mr. Livermore that, for the long term, he has to exercise caution in performing strenuous activities. Mr. Livermore was assessed by Dr. Douglas as having permanent whole person impairment of 12%, and the total whole person impairment of 11%.

25 Dr. Waite on the other hand, disagreed with the percentage impairment arrived at by Dr. Douglas. Dr. Waite said that the MRI scan revealed broad based disc bulges noted at L4/5 and L5/SI, and this indicated disc disease at two levels. Dr. Waite noted further that Mr. Livermore also had two levels of radiculopathy at L5...