Dawnette Walker v Hensley Pink

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: HARRISON, P (AG.)
• Judgment Date: 12 June 2003
• Neutral Citation: JM 2003 CA 27
• Judgment citation (vLex): [2003] 6 JJC 1203
• Date: 12 June 2003

IN THE COURT OF APPEAL

COR:

THE HON. MR. JUSTICE HARRISON, P. (AG) THE HON. MR. JUSTICE PANTON, J.A THE HON. MR. JUSTICE COOKE, J.A. (AG.)

Leslie Campbell instructed by Campbell & Campbell for Appellant

Danesh Maragh instructed by Fay Chang-Rhule for Respondent

DAMAGES - General damages - Application for significant increase as amounts inordinately low - Whether award of handicap on the labour market should stand - Award varied

HARRISON, P (AG.)

1 This is an appeal from the judgment of Campbell, 3 on 7 ^th December 2001, assessing damages for the appellant as follows:

Special damages	$277,600.00 and interest @ 6% from 7/9/98 - 7/12/2001
General damages	Pain & Suffering & Loss of Amenities	$220,000.00 & interest @ 6% from 29/08/2000 - 7/12/2001
Handicap on the labour Market	$100,000.00

2 The appeal relates to the award of general damages.

3 The grounds of appeal are:

• "1. That the Learned Judge erred in law in finding that the Plaintiff was not entitled to compensation for the inability to earn income being income not income related to her employment as a Police Officer.

• 2. The award of damages for pain and suffering was unreasonable and inconsistent with awards for similar types of injuty and period of pain and suffering.

• 3. That the award of damages for handicap on the Labour Market was unreasonable and against the weight of the evidence."

4 The relevant facts are that the appellant, a police officer, 36 years old was driving a Toyota motor car, a police vehicle, on 7 ^th September 1998 at 9.30 a.m. when it was involved in an accident with a motor vehicle driven by the respondent. The appellant was injured. She was treated at the hospital by a doctor. Her neck was x-rayed and she was referred to Dr. G. Dundas, an orthopaedic surgeon, on the said day. Dr. Dundas, after examination of the appellant and of her x-ray results, referred her to a physiotherapist, who treated her for over seven months. The appellant was in constant pain. Dr. Dundas referred the appellant to Dr. Randolph Cheeks a consultant neurosurgeon, seven months after the accident. The appellant suffered from extreme pain to her neck, shoulder, upper back and right arm and numbness to the fingers of the right arm. An MRI was done.

5 The appellant was absent from work until December 1999 a period of about one year and four months after the accident. She was on sick and vacation leave for the said period. On the resumption of duties, the appellant, on medical advice, was "placed on light duties", in the investigation unit to which she had been assigned prior to the accident. The duties therein involved the investigation of sexual offences and was also concerned with juveniles, driving motor vehicles and lecturing. Because of her injuries, these duties, including numerous writing of statements caused her pain. She was therefore assigned, after one month, to the Mediation Unit. Because of the illness, she was summoned by a medical board of doctors in September 2000 and the said board confirmed the recommendation sf light duties.

6 In March 2000 the appellant had applied for enlistment. She was granted one year instead of the usuafl five years. In March 2001 she again applied and was granted the additional four years.

7 At the date of the accident, the appellant was a constable. She had passed her promotional examination in 1995. At the date of the hearing in December 2001, she was of the rank of Corporal, having been promoted.

8 Prior to entering the Jamaica Constabulary Force, the appellant was a trained dressmaker and embroiderer. Working from home, she made drapes and sheets, earning about $30,000.00 per month. She continued this activity even after entering the Jamaica Constabulary Force. She said at page 19 of the record :

"I was still in pain when I took the vacation leave. I still continued dressmaking to supplement my salary, drapery making, machine embroidery, which I practiced prior to the accident."

9 She admitted that she did not have a registered establishment, kept no books, made no tax returns and therefore advanced no documentary proof of such earnings. She admitted that she was "not permitted to have secondary employment."

10 She was incapacitated to some extent as a result of the accident. She said at gage 89:

"After accident, pain in neck, etc. I was unable to take care of normal household chores. I had to pay to get them done. Washing, cleaning, ironing.

Had to get someone to do it — had to pay — am stilt paying."

11 Dr. Cheeks saw the appellant on 5 ^th March 1999 for the first time, having been so referred by Dr. Dundas. Dr. Cheeks, on examination found, on page 12, that:

"There is painful restriction of left lateral rotation of the cervical spine and the left paraspinal cervical musculature is tender.

Testing the sensory modalities in the upper extremities reveals some diminution of pinprick sensation at the right thumb, index and middle fingers.

The deep tendon reflexes are all normal and symmetrical except for the right supinator jerk, which was marginally depressed.

There is no evidence of impairment of spinal cord function.

Muscle tone, power, and coordination are normal in all four extremities.

An MRI of the cervical spine shows evidence of damage to the C3–4 cervical intervertebral disk which is herniating [bulging] posteriorly and indenting the thecal sac. No injury to the spinal cord is present."

12 Further physiotherapy with traction was recommended and medication prescribed. A review two months later revealed improvements.

13 Giving his opinion further, Dr. Cheeks said at page 13:

"This injury is classified as a Class 2 cervical whiplash injury and she is currently still under treatment but it is anticipated that her symptoms will eventually settle. However from the prognostic standpoint she will be liable to experience bouts of neck and shoulder pains periodically since this is the usual natural history of mechanical intervertebral disk derangement. Should further deterioration of the disk occur it is possible that the herniation may progress leading to nerve entrapment and necessitating spinal surgery.

Taking the above into consideration, this single level non-operated cervical disk derangement carries a PPD of five percent of the-whole person acCording to the AMA guidelines."

14 There were nine neurological consultations with Dr. Cheeks thereafter, up to 21 ^st May 2001. He reported on 13 ^th September 2001 that she had reached her maximum medical improvement. He said further at page 14:

"From the occupational standpoint this is expected to have a mild impact on her ability to function in her present occupation as a police officer.

Prognostically this condition will undergo intermittent episodes of neck and shoulder pain particularly at times of heavy exertions. Should this individual in the future sustain a further neck injury (particularly one of the whiplash type) then she would be more vulnerable than a normal healthy person to suffer severe protracted pains. These factors are taken into account in her P.P.D. assessment as five percent of the whole person."

15 At the outset: it must be noted that the learned trial judge gave no reasons for his award. This Court has repeatedly asserted that it is absolutely desirable that a trial judge reveal the reasons for his decision ( McKenzie v. Campbell (1992) 29 JLR 125 ). In the absence of reasons this Court is forced to operate in a vacuum and counsel is afforded the opportunity to speculate on the basis for the decision. The duty to give reasons depends on the subject matter in issue, and in that regard, in the absence of a Court of Appeal may set aside the judgment and order a new trial ( Flannery e t a1 v. Halifax Estate Agencies [2000] 1 WIR 477 ). In the instant case however, the printed record contained some material which revealed the manner in which the learned trial judge may have proceeded in arriving at his decision.

16 Ground 1

17 Counsel for the appellant argued that the claim far $30,000.00 per month loss of earnings as a dressmaker and draper, a skill the appellant acquired prior to and after her entry into the Jamaica Constabulary Force, should not have been disallowed. He attempted to base his arguments, in support of the appellant's right to engage in such an income earning activity without prior permission, on the wording of section 10 of the Jamaica Constabulary Force Act. Section 10 reads:

" 10. No person of any rank appointed to the Force shall, while he holds such appointment, hold any other public employment without the consent of the Governor-General signified in writing under the hand of the Minister."

18 The significance of the necessity for reasons to be advanced by a trial judge was starkly evident in this instance. There were no reasons to justify a claim that the learned trial judge based his rejection of that item of the claim on the interpretation of the said section 10. Counsel, accordingly acceded to the observation of this Court and did not proceed with his said arguments therein.

19 The principle that an appellate court is at large on the facts where the reasons given by the learned trial judge for his judgment are rwt satisfactory or the evidence does not support it ( Watt V. Thomas [1947] 1 All E.R. 582 ), is moreso evident in circumstances where there are no reasons, but the printed record affords some assistance.

20 This Court however is of the view that on the pHnted record, there was not sufficient evidence to substantiate such a claim for loss of earnings. Although a court must accord to a claimant fair and adequate compensation for all loss sustained as a result of an injury or wrong, such loss must be strictly proved. It has been repeatedly said that it is insufficient to "write down particulars and throw them at the head of the court" and expect a reciprocal award...