Electoral Office of Jamaica v Haughton Duhaney
| Jurisdiction | Jamaica |
| Judge | Panton P,Harris JA,Dukharnan JA |
| Judgment Date | 22 June 2012 |
| Neutral Citation | [2012] JMCA Civ 27 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 139/2009 |
| Date | 22 June 2012 |
[2012] JMCA Civ 27
JAMAICA
IN THE COURT OF APPEAL
The Hon Mr Justice Panton P
The Hon Mrs Justice Harris JA
The Hon Mr Justice Dukharan JA
SUPREME COURT CIVIL APPEAL NO 139/2009
OCCUPIER'S LIABILITY - Damages - Claim for damages for negligence - Challenge to quantum of damages - Whether the quantum manifestly excessive
I have read in draft the judgment of Harris JA and agree with her reasoning and conclusion. I have nothing further to add.
This appeal challenges the quantum of damages awarded by Rattray J on a claim made by the respondent for damages for breaches of statutory duty and negligence. Rattray J ordered as follows:
‘1. By and with consent of both parties judgment entered in favour of the claimant against the First named Defendant.
2. Damages assessed in favour of the Claimant in the amount of:
Eight Million Dollars ($8,000,000.00) for Pain and Suffering and Loss of Amenities plus interest at the rate of 6% per annum from July 30, 2001 to June 21, 2006 and thereafter interest at the rate of 3% per annum from June 22, 2006 to September 17, 2009.
Two Hundred and Twenty-nine Thousand Five Hundred Jamaican Dollars (J$229,500.00) and Eight Hundred Pounds Sterling (£800.00) for Special Damages plus interest at the rate of 6% per annum from November 2, 1997 to June 21, 2006 and thereafter interest at the rate of 3% per annum from June 22, 2006 to September 17, 2009;
One Hundred and Sixty-four Thousand Dollars ($164,000.00) for future medical expenses.’
On 2 November 1997, the respondent was a passenger in a motor vehicle which collided into a utility pole. At the time of the collision, the respondent was employed to the appellant and the motor vehicle was being driven by the appellant's agent. Arising from the collision, the respondent sustained extensive injuries mainly to the head, face and neck and was hospitalized for several days. On 24 July 2001, he commenced proceedings against the appellant and the driver outlining in his statement of claim the following particulars of injuries:
‘PARTICULARS OF INJURIES
1. Loss of consciousness
2. Laceration vertical to forehead four to five (4-5) cm
3. Headaches
4. Periorbital haematoma bilaterally
5. Pain in lumbar sacral
6. Fracture (undisplaced) zygomatic complex (left side of face)
7. Temporomandibular pain in left face
8. Cerebral conscussion [sic]
9. Avulsion of L incisor
10. Mouth opening restricted to 50%
11. Trigeminal Neuralgia (Pain in the left temporal side of the head and face.
12. Tenderness at the left temporomandibular joint pain radiating across face, left to right and reverse.
13. Numbness in the right maxilla
14. Fracture [sic] facial and nasal bones
15. Massive pain in the left side of the face
16. Trigeminal Neuralgia (pain in the fifth cranial nerve due to damage [sic] nerve) which last [sic] for a day to days.
17. Damage to the left temporomandibular joint, which will restrict the opening of his mouth to 50%.
18. Inability to function in his present capacity as a driver.
19. Cut on his forehead and broken bones in his nose, face and lower jaw.
20. Upper and lower teeth were knocked out and the bone around the upper teeth was broken.
21. Deformed face despite operation on his nose
22. Confused on and off
23. Inability to chew properly
24. Inability to open his mouth widely and thus has to use hand to pry it open.
25. Crimpy sound in his left ear when chewing
26. Numbness in his right face and cheek
27. Itching of right eye and foggy vision when he looks to the left.
28. Swelling of his right cheek
29. Obvious asymmetry of his face with flattening of his glabella and nasofrontal bone areas.
30. 2.5cm scar vertical to the glabella
31. Nasal bones show mild shift to the left
32. Fracture site depressions at left and right infraorbital bones.
33. Paresthesia of the right cheek and upper lip over the distribution of the right infraorbital nerve.
34. Limitation of movement in his left tempromandibular [sic] joint with bone clicking and rubbing when opening mouth.
35. Fractured frontal-glabellar nasal bones
36. Fractured left Zygomatic (cheek) bones
37. Undisplaced fracture of right infraorbital area causing crush injury of right infraorbital nerve hence the numbness in his right face and upper lip
38. Traumatic avulsion of the lower and upper teeth
39. Fractured left subcondylar area of the lower jaw
40. Infraorbital nerve injury causing paresthesia after three years is now permanent, also the articular sounds in his left tempromandibular [sic] joint.
41. Permanent recurrence of sinusitis.
42. Head injury with concussions and a 2 inch laceration on the forehead associated with bruising around both eyelids on both sides.
43. Bruising around the nose and right side of his face
44. Bruising and swelling in the lumbar region of his back
45. Pain and swelling over the zygomatic region of his face
46. Facture of the frontal bone of the skull
47. Continual pain over the left temporal mandibular joint.
48. Persistent frontal headaches
49. Constant feeling of heaviness and discomfort in the face.
50. Tendency to be forgetful of recent matters to the extent that he would forget things that he had just read and often tended to forget engagements and appointments.
51. Pain in the region of the left tempromandibular [sic] joint when he attempted to fully open his mouth fully [sic].
52. Feeling of numbness over the right cheek
53. Pains over the back of the neck
54. Deficiency of approximately 10% in recent memory function both for verbal and visual memory.
55. Vertical curvilinear two-inch scar is present near the midline of his forehead.
56. Cutaneous sensation is impaired over the right cheek overlying the fracture of his zygomatic bone indicating a crushing injury to the branches of the infraorbital nerve on this side.
57. There is restriction of the range of motion of the cervical spine for lateral rotation in both directions by approximately 30%.
58. Impairment of recent memory function is compromised by 10%; which is 5% of the whole person.
59. Scar on his forehead, approximately 2 inches and is readily visible in daylight at ordinary conversational distance; it constitutes a cosmetic defect.
60. Traumatic neuritis which gives rise to facial discomfort. This impairment is 2% of the whole person.
61. Headaches are post concessional
62. Painful restriction of the range of motion of his neck indicates a Cervical Whiplash [sic], the brunt of the neck injury being borne by the muscular and ligamentous structures in the neck which have healed with some scarring. The disability is 3% of the whole person.
63. Permanent partial disability arising out of the neurological injuries is assessed at 9% of the whole man.
64. Temporarily totally disabled for a period of 9 months immediately following the accident.’
His claim for special damages included a claim for paid assistance from November 1997 to December 1999 and from January 2000 to July 2001, loss of earnings and medical expenses.
A defence was filed by the appellant in which it initially denied liability but at the commencement of the trial, it resiled from this position and a consent judgment was entered. The trial therefore proceeded only in relation to damages. In seeking to prove his claim, the respondent relied on the medical reports of Dr S Donaldson of the Faciomaxillary Department of the Kingston Public Hospital and of Dr Randolph Cheeks and Dr Hal Shaw. The respondent's injuries as outlined in the medical report of Dr Donaldson dated 20 May 1999 were as follows:
‘1. Laceration vertical to forehead four to five (4-5) cm
2. Periorbital haematoma bilaterally
3. Alert and conscious with headaches
4. Pain in lumbar sacral region of back
5. Pain in nose and left ear
6. Fractured nose—Frontal bones
7. Fractured (undisplaced) zygomatic complex (left side of face)
8. Temporomandibular pain in left face
9. Cerebral concussion
10. Avulsion of L incisor’
Surgery was performed on his naso-frontal bones. The extent to which he was able to open his mouth ranged from 80% in January of 1998 to 50% in February of 1999. He was diagnosed as having fractured facial and nasal bones, massive pain in the left side of his face and pain in the fifth cranial nerve due to damage to the nerve. It was opined that the respondent's ability to open his mouth would be restricted to 50% and that hewould continue to suffer the pain in his fifth cranial nerve, which came on without notice and lasted ‘a day to days’.
Dr Cheeks, a consultant neurosurgeon saw the respondent in December 2000. In his report dated 5 January 2001, he noted the following:
‘His higher mental functions are intact except for a deficiency of approximately 10% in recent memory function both for verbal and visual memory.
A vertical curvilinear two inch scar is present near the midline of his forehead
Cutaneous sensation is impaired over the right cheek overlying the fracture of his zygomatic bone indicating a crushing injury to the branches of the infraorbital nerve on this side
The special senses are intact
His ability to fully open his mouth is impaired by approximately 20%
There is a restriction of the range of motion of the cervical spine for lateral rotation in both directions by approximately 30%
The lumbar spine has a full painless range of motion
His gait, posture and coordination are intact, and all four limbs are normal in all neurological respects
Examination of the chest, heart, lungs and abdomen was unremarkable.’
He also noted that the respondent was of healthy general appearance with physiological vital signs, was fully alert and that he spoke with rational coherent speech. He further stated...
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