Dacres (Vandyard) and Carla Dacres v Reid (Tanya)

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Reckord, J.
• Judgment Date: 17 August 2000
• Judgment citation (vLex): [2000] 8 JJC 1701
• Date: 17 August 2000
• Docket Number: SUIT NO. C.L.R.021/98

BETWEEN

TANYA REID

PLAINTIFF

AND

VANYARD DACRES

^ST . DEFENDANT

AND

CORLA DACRES

2 ^ND . DEFENDANT

SUIT NO. C.L.R.021/98

IN THE SUPREME COURT OF JUDCIATURE OF JAMAICA

IN COMMON LAW

DAMAGES - Motor vehicle accident - Pain and suffering - Loss of amenities

JUDGMENT

Reckord, J

1 This action came before me for assessment of damages. It took much longer than it ought to. The plaintiff is a 25 years old bank teller.

2 On Wednesday the 27 ^th of August, 1997, she was passenger in a motor car driven by the 2 ^nd named defendant. The 1 ^st defendant is the owner. She was sitting in the left front passenger seat. While being driven down Constant Spring Road the driver wanted to turn right into Manor Centre. She stopped, waited for oncoming vehicle to pass and the proceeded to turn. "Then I heard tyre dragging on my side. I looked up and saw a bus which hit the front door. She received a blow to her head and 'I think, I became unconscious.' She regained consciousness in the University Hospital suffering from pain all over especially her chest, shoulder, face, head and knees. She remained laying on a stretcher until the afternoon. Doctors sutured the left side of her face, she was feeling drowsy and dizzy. She remained in hospital overnight and was placed on drip. Her cheek bones were fractured as a result she could not open her mouth. It was swollen, she could not move her shoulders. She was given medicine by a spoon. She could not get out of bed; she did everything in bed with the use of a bed pan and could not stand without the help of nurses, but not for long as she was unbalanced.

3 She was discharged from hospital on the Friday night, her parents took her home. Both shoulders were in bandages. Between September and 20 ^th November, 1997 she visited out-patient clinic for treatment.

4 Pains to chest lasted upto 18 months. When ever she moved her shoulders her chest would tighten up. She has been going to neurosurgeon clinic because of dizziness she was having. This lasted to January, 1998. Her private Doctor Clive Morrison prescribed tablets for her.

5 She received E.N.T. treatment for her mouth as it could not open enough. She

6 had second opinion from her Dr. Anthony Lewis. He did surgery inside her mouth. After this it could open more than before. Up to now she can't open her mouth to the fullest. She can't eat dumpling or oxtail. When she chews she feels pain on the inside.

7 The plaintiff said she suffered cuts and bruises to the left side of her face. The cuts were sutured leaving scars. The left side of her face is now lower than the right. Her left eye is now smaller since the accident. The eye was blood shot from the morning of the accident. Her face was not like this before.

8 As a bank teller she is a front line staff. She is upset and embarrassed about her face, customers ask over and over about it. She had lots of friends with whom she went to the movies and partying. She no longer go out with friends. When she look in the mirror she feels self-conscious and upset. As a result of the condition of her face she contacted Dr. Junior Taylor a plastic surgeon in April 1998. He gave her a report suggesting he could help her.

9 One month after the accident the plaintiff saw Dr. Dundas. She was in pain and discomfort because of injury to her shoulder. She could not do things for herself, her mother had to help her. Dr. Dundas treated her, but the pain did not ceased. The bandages were removed and replaced by a clavicle brace. She did xrays on both shoulders, the right gave more problems than the left. She is right handed. She received treatment from Dr. Dundas until October, 1998. She can't take cold showers any more as they become cramped Can't carry her hand bag on her right shoulder because of cramps. She has to sleep on her back most of the times. At work she has to ask for help to carry her cash till because of the weight. When counting money her fingers tend to cramp, also when using the computer.

10 The plaintiff no longer goes to future fitness, swimming or play lawn tennis at the sports club. She now stays at home and watch television and read novels. She view all these injuries as serious. She is scared of the future.

11 Doctor Joseph Brandy of the University Hospital saw the plaintiff on the day of the accident. She had no recollection of the accident. There was history of loss of consciousness. There were bruises and lacerations primarily to the left side of her face below her eye. There was bleeding under the membrane of left eye. There was tenderness and swelling of her upper chest. Xray done on admission revealed fractures of both clavicles also several fractures of her left facial bones.

12 She was admitted to hospital. She was seen by orthopedic and E.N.T. specialists. She was given pain medications; restraining bandages were applied. In respect of her facial bones fractures she was advised to seek surgical correction when some of the swelling had been reduced.

13 She was discharged from hospital on the 29 ^th August, 1998 with arrangement for out patient follow-up. Between 2 ^nd September and 20 ^th November, 1997 she attended out patients clinic-surgical, neurosurgery, orthopedic and E.N.T.. During this time her facial fractures were surgically treated. On her last visit there was gradual improvement and healing of her fractures but there remained a residual depression of the left side of her face. He regarded her injuries as serious and consistent with being involved in a motor vehicle accident. The bones in the face were the maxilla zygonia, they give the check prominence.

14 The doctor admitted under cross-examination that some of the evidence came from notes of other doctors. The plaintiff could walk when she was discharged from the hospital.

15 Dr. Geddes Dundas, consultant orthopedic surgeon, examined the plaintiff on the 29 ^th September, 1997. He noted that facial injuries she sustained had been treated before he saw her. Fractures to both clavicles over lapped and were untreated. He applied clavicle brace for 4 weeks. Further examination on the 29 ^th of October, 1997 showed the left clavicle to be quite stable. The right side however was still springy. About 6 weeks later he reviewed her and xrayed the bones. The left one had become acceptably reduced, but the right one was still over-lapped. She demonstrated at that time evidence of nerve deficit involving the brachial plexus which is the major nerve in close proximity to the fracture. She still had tenderness at the right clavicle fracture but the stability appeared to be improving.

16 The plaintiff was seen again by Dr. Dundas on the 30 ^th January, 1998 and the 23 ^rd July, 1998. In July she was still complaining of pain to the right shoulder. It was quite tender at the fracture site of the right clavicle. A stress examination revealed that the stress was still mobile. X-rays indicated that the left had healed well but the right was not united. She still complained of nerve pain involving the brachial plexus. The doctor referred her to a programme of physical therapy aimed at promoting union of the right clavicular fracture. When she was finally examined on the 25 ^th October, 1998 there was clavical and radiographic confirmation that healing to the right clavicle had been completed. The residual disability amounts to about five percent of the right upper extremity or two percent of the whole person.

17 The cramps she has is consistent with nerve injury.

18 Under cross-examination Dr. Dundas said that the plaintiff never indicated to him that she had difficulty taking cold shower Never indicated to him about cramps, she never said she suffered from numbness when using the computer. Never complained of carrying her cash till.

19 There was no deformity or dislocation of the shoulder. There was no evidence of wasting.

20 Dr. Junior Taylor (F.R.C.S) saw the plaintiff on the 22 ^nd of April, 1998. His main findings concern the left side of her face. There was a curved scar approximately 4 cm long extending from just lateral of the left eye onto the left molar region. There was also a curved transverse scar 3 cm long extending to the left cheek. There was also an area on the left cheek with multiple small scares together. A foreign body was left beneath the skin, quite likely introduced at the time of the accident.

21 It is possible to do a reversion to improve the appearance of the scars and also to explore the area where the module was left, if it can be removed. If reversion is done she could still have scar. Costs of such a reversion would be $50,000.00. Patient could be discharged same day. The effects of scaring can be source of distress, possible serve as a constant reminder of a traumatic experience. This invites unwelcomed attention for others.

22 Dr. Dwright Lewis, consultant oral and maxilla-facial surgeon, examined the plaintiff first on the 26 ^th of September, 1997. She had a left periorbital haematoma, left subconjunctival haematoma, fracture of the left malo-maxillary complex with fractures of the inferior and lateral rims and the zygomatic arch. There were fractures of the incisor edges of the central maxillary incisors (the cutting edge of the teeth were broken off).

23 She was under general anaesthetic and the fractures were reduced and immobilised. Dr. Lewis last saw her on the 27 ^th September, 1999. The occlusion was good but the left was flatter than the right.

24 Under cross-examination Dr. Lewis saw her 26 ^th September, 1997, and 23 ^rd October, 1997 and 27 ^th September, 1999. The fractures had healed. Whatever small problem he saw would be resolved in about one year.

25 In answer to the court the Dr. Doctor said her face seemed alright in October, 1997. When he next saw her, the tissues had contracted during the passage of time and the injury was obvious.

26 When the hearing continued on the 24 ^th of January...