Dixon-Hall (Cherry) v Jamaica Grande Ltd

• Jurisdiction: Jamaica
• Judge: PANTON, P. , HARRISON, J.A.: , HARRIS, J.A.
• Judgment Date: 21 November 2008
• Neutral Citation: JM 2008 CA 92
• Judgment citation (vLex): [2008] 11 JJC 2105
• Court: Court of Appeal (Jamaica)
• Date: 21 November 2008

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE PANTON, P THE HON. MR. JUSTICE HARRISON, J.A THE HON. MRS. JUSTICE HARRIS, J.A

BETWEEN

CHERRY DIXON-HALL

APPELLANT

AND

JAMAICA GRANDE LIMITED

RESPONDENT

Dr. Lloyd Barnett and Manley A. Nicholson instructed by Nicholson Phillips for the appellant

Mrs. Symone Mayhew and Miss Camille Wignall instructed by Nunes, Scholefield, DeLeon & Co., for the respondent

DAMAGES - Doctor - Whether doctor an expert witness - Whether evidence admissible - Assessment of damages

ORDER:

The appeal is dismissed with costs to the respondent to be agreed or taxed.

PANTON, P.

1 The appellant is aggrieved by the decision of Marva McDonald-Bishop, J. (Ag.) delivered on February 13, 2007, wherein she assessed damages in favour of the appellant as follows:

"General Damages: Pain and suffering and loss of amenities in the sum of JA$650,000.00 with interest thereon at 3% as at September 5, 2005 to February 13, 2007.

Costs to the claimant to be agreed or taxed."

The main complaint by the appellant is in respect of the manner in which the learned judge dealt with the evidence of one of the doctors who examined and treated her. That doctor was Dr. Eric J. Williams.

The Medical Reports

2 On or about May 9, 2003, the appellant was a guest at the Jamaica Grande Resort Hotel, Ocho Rios, St. Ann, when she slipped on a wet floor and fell. She was seen and examined by Dr. Lodian Wright on that very day. His medical certificate dated 7 ^th June, 2003, states that the appellant gave a history of slipping on a wet floor, and injuring her left elbow and right chest area. The certificate adds that she complained of moderate pain to the left elbow and severe pain of the right chest, exacerbated by the slightest of movements, deep breathing and cough. The doctor's examination revealed slight tenderness of the right elbow, which was exacerbated by movements of the same elbow. There was moderate to severe pain and tenderness of the left chest area, the point of maximum tenderness being in the region of the 7 ^th and 8 ^th rib which area was also slightly swollen.

3 Dr. Karlene Neita, consultant radiologist, to whom Dr. Wright had referred the appellant, reported on May 13 that she examined the appellant on May 10 and that x-rays of the chest and ribs revealed an undisplaced fracture of the right 7 ^th rib. There was no abnormality of the left elbow. Consequent on the result of the examinations, Dr. Wright diagnosed a fracture of the 7 ^th rib as well as soft tissue injury of the right elbow. He treated the appellant with panadeine F and cataflam, and advised rest and continued medication. The prognosis, he felt, was good and estimated that the appellant "should recover sufficiently within two (2) months to carry out her daily active living".

4 The appellant, who resides in Queens, New York, returned to the United States of America on or about May 20, 2003. She stated that she was reviewed by Dr. Wright on three separate occasions prior to her return. When she returned to the United States of America, she attended on Dr. Eric J Williams. He wrote three medical reports which were admitted in evidence. Two of these reports bear a date; the other does not. The earlier of the dated reports bears the date July 2, 2004, and was admitted as exhibit 3. It states that the appellant began treatment for her injuries under Dr. Williams' care on May 20, 2003. It reads further:

"Ms. Dixon suffered multiple injuries secondary to her fall including a closed fracture of the 7 ^th rib, a severe left wrist sprain, sciatica and muscular injuries to the lower back. Ms. Dixon has been under my treatment with analgesics, non-steroidal anti-inflammatory agents and steroids. She has also completed a four-month course of physical therapy for her injuries. Ms. Dixon has shown some mild improvement in her condition however she remains disabled.

Ms. Dixon has also been diagnosed with systemic lupus erythematosus a deleterious disorder of the immune system. Previously Ms. Dixon's condition had been quite stable in regards to this illness. However, since her fall in May of 2003 she has had several lupus flares as evidenced by an elevated esr of 70 and an anti-DS DNA of>200. Since May 20 ^th Ms. Dixon has been hospitalized twice and has numerous small lupus flares. She is now steroid dependent for the management of lupus."

5 The undated report was admitted as exhibit 5. It has been put forward as an addendum to exhibit 3, and reads:

"Firstly, Ms. Dixon suffered a severe sprain to wrist that in my opinion was caused by the fall. The acute sprain and resulting reactive arthritis were both a direct result of the injury. The pre-existing Lupus would have had no bearing on the injury, as her Lupus flares did not begin until after the fall."

The third report, dated June 17, 2006, was admitted as exhibit 6A. It reads:

"I submit this letter on behalf of Ms. Cherry Dixon, as she has been a patient under my care for some time. The intent of this is to add clarity to my assessment of Ms. Dixon's injuries. As a result of the fall Ms. Dixon suffered a severe wrist sprain that has resulted in a reactive arthritis that will remain with her permanently. Ms. Dixon continues to suffer chronic pain and stiffness in this joint that negatively impacts her functional capacity. Ms. Dixon also suffers with chronic lupus eythmatosis (sic). The natural history of this disorder is typified by episodic exacerbations. We do know that both emotional and physical stressors can trigger exacerbations. At the time of the accident Ms. Dixon's lupus had been quite stable for and (sic) extending (sic) period of time. While recovering from the fall injury Ms. Dixon experienced a major flare and ultimately required hospitalization and aggressive medical treatment. The clinical presentation supports a trigger and response relationship between the fall and the subsequent flares of Ms. Dixon's lupus."

The Appellant's Evidence

6 According to the appellant, after she returned to the United States of America, she started experiencing severe pain and difficulties in using her left wrist, and was later diagnosed as suffering from arthritis to her left wrist, "which was a direct result of the severe sprain (she) had sustained to (her) left wrist in the fall". She had physiotherapy once weekly from October 20, 2003, to January 26, 2004. It was during the process of this physiotherapy course, that is, in or about November, 2003, that she had a "sudden and unexpected flare of (her) lupus erythematosus condition". There was another flare in February, 2004, and other small flares since then. These flares, she said, have rendered her steroid dependent. Incidentally, the lupus condition had been diagnosed in or about 1998.

7 The appellant's dependency on steroids has changed her life in that she has gained unwanted weight, and her general appearance no longer meets with her satisfaction. She has had what she describes as "(an) intensive course of medical treatment", but continues to experience pain over her "entire body and at times, to such areas as (her) lower back, left wrist and elbow". She is now "barely able to take care of (herself)" and experiences difficulty in walking. Her relationship with her common law husband "has been severely affected especially as it relates to matters of intimacy, as the impact of the fall has left (her) disabled".

8 Apart from the pain and suffering that the appellant has said that she has experienced, and continues to experience, she has lost financially and materially in a significant way. Her life's savings have been depleted as she has incurred significant medical and travelling expenses, and she is unable to work.

The findings

9 The learned judge delivered a comprehensive judgment. She rejected that part of the appellant's case which was built around the evidence of Dr. Williams. Consequently, the damages assessed were considerably less than the appellant had claimed. Her ladyship's major findings may be summarized thus:

The Grounds of Appeal

• (i) The appellant told Dr. Wright only about severe pain to her chest and moderate pain in her elbow; consequently, it was difficult to accept her assertion that immediately after the fall she had severe pain to her entire body.

  (ii) the opinion of Dr. Williams that the appellant had lupus that was exacerbated by the fall is unacceptable;

• (iii) the injuries to the chest and elbow as seen by Dr. Wright were consistent with a fall;

• (iv) the displaced fracture to the right 7th rib and soft tissue injury to the right elbow was the nature and extent of the appellant's injury as a result of the fall;

• (v) there is no permanent residual disability of the nature and extent described by the appellant as resulting from the fall;

• (vi) there has not been any substantial loss of amenities to the extent claimed, as a result of the fall; and

• (vii) the longest period of the appellant's incapacity, as a result of the fall, would be six months.

10 Nine grounds were filed, but four (4) were abandoned at the start of the proceedings before us. The other grounds read thus:

This latter ground was not really pursued as the thrust of the appellant's arguments was in relation to the nature of her injuries arising from the fall, and the learned judge's treatment of the medical evidence, particularly that contained in the reports of Dr. Williams. Indeed, the remaining grounds were argued together.

Expert witness

• • The trial judge erred in treating the Claimant's immediate identification of the points of impact and areas of pain as conclusive of trauma she sustained in the fall for which the Defendant is liable;

• • The learned trial judge's treatment of Dr. Williams' reports, as not coming from an expert, is artificial as well as misconceived;

• • The medical...