Evoni McLean v Pepsi Cola Bottling Company Ltd and Another

 
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[2014] JMSC Civ 55

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. 2012 HCV 02000

Between
Evoni McLean
Claimant
and
Pepsi Cola Bottling Co. Ltd
1st Defendant
Kirk Anthony King
2nd Defendant

Assessment of damages � Personal injury � no measurable PPD

Lindo J.
(Acting)
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[1] The claim in this matter arose out of a motor vehicle accident which took place on June 30, 2011 when the 2 nd defendant, authorized driver of motor truck registered CB6965, owned by the 1 st defendant caused the truck to collide in the rear of motor vehicle registered 3182DP, owned and driven by the claimant. The claimant claims damages, interest and costs for the injuries, loss and damage which she suffered as a result of the negligence of the 2 nd defendant in his driving, management and/or control of the said truck.

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[2] On May 10, 2012 the 1 st defendant filed a defence limited to quantum and on June 1, 2012 judgment on admission was entered against the 1 st defendant.

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[3] On March 3, 2014, the matter came on for assessment of damages. The claimant was sworn and her witness statement dated February 19, 2014 was accepted as her evidence in chief after it was identified by her.

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[4] Her evidence is that she on the day after the accident she consulted Dr. Wade as she had pain in her neck, lower back, hands and knees and she couldn't rotate her neck without pain. She said he prescribed painkillers and antispasmodics and she took the medication which helped but when the medication wore off or ran out the pain increased. She indicated that in the first several days she was almost totally incapacitated and that she made three subsequent visits to Dr. Wade.

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[5] She further indicated that on her second visit to Dr Wade he referred her for physiotherapy and on the third visit he prescribed anxiolytic medication and referred her for psychiatric evaluation/psychotherapy and that over the course of these visits her fear of driving was increasing. Dr. Wade's diagnosis was mild whiplash, chronic muscle spasm of the fingers and forearms and posttraumatic stress disorder (PTSD).

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[6] Under cross examination by Mrs. Mayhew, Ms. McLean stated that she was a nurse and that she couldn't recall the date she went to Dr. Abel but it could be about a year after the accident, after the claim had been filed because during the time she was suffering from anxiety and thought she could get over it. She stated that Dr. Abel recommended psychotherapy and she started in May, 2012 and had between six to ten sessions and has since been discharged and that Dr. Abel did not prescribe any medication.

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[7] Ms. McLean also indicated that the physiotherapist, Ms. Frankson taught her exercises which she does every day. She indicated that she is driving �just a little� but had no pleasure in doing things she used to do such as driving to Emancipation park, bathing and washing as she had pains. She said �it hurts me, damage me, frighten me, my mental status is not the same�.

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[8] She further stated that she did six to ten sessions of physiotherapy, she has a person who does errands for her and that she gets around by cab or her daughter takes her. She described some of the exercises she did if she was afraid to drive, such as taking deep breaths.

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[9] Mr. Reitzen submitted that the claimant made four visits to Dr. Wade these were on the day after the accident and on the second, seventh and ninth week after the accident. He drew the court's attention to the medical report of Dr. Rose where the doctor stated that the claimant had chronic neck pains, chronic mechanical lower back pains and triggering right middle and as well as left middle and ring fingers. He also pointed out that in the final report of Dr. Rose stated under the heading �Impression�, the following:

  • 1. Mild whiplash injury

  • 2. Mild soft tissue injury right shoulder

  • 3. Mild mechanical lower back pains

  • 4. Resolved triggering of fingers both hands.

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[10] In relation to general damages, Mr. Reitzen cited the case of Stacey Ann Mitchell v Carlton Davis and Ors. Khan, Vol 5 pg.146, as being in some ways similar to the claimant in the case at bar. He however expressed the view that Ms. McLean's injuries were more extensive as the claimant in that case was completely better about one year after the accident but Ms. McLean was still �not completely out of the woods�. He therefore asked the court to make an award 10% more than that awarded to Stacy Mitchell.

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[11] With regard to the claim for an award for post traumatic stress disorder, (PTSD), Mr. Reitzen suggested an award of $700,000.00 based on the award made in the case of Vanura Lee v Petroleum Co. of Jamaica and Juici Beef Limited� in 2004. In that case the claimant suffered burns which affected 27% of her body surface area and Dr. Abel, consultant psychiatrist assessed her as suffering from PTSD and major depressive disorder indicating that the injuries she sustained is a source of considerable emotional anguish. Miss Lee's major disability was cosmetic. She was awarded $300,000.00.

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[12] Mrs. Mayhew submitted that in relation to the medical reports, it is noted that the physical examination was done one year and four months after the accident and stated that degenerative changes take place over time. She indicated that the report states that when seen on May 8, 2013, the claimant was able to cope physically and based on the report she had improved significantly. She was of the view that the medical report does not...

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