Hunter, Winnifred v Michael Brown

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Sykes J (Ag)
• Judgment Date: 26 July 2002
• Judgment citation (vLex): [2002] 7 JJC 2603
• Date: 26 July 2002

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

BETWEEN

WINNIFRED HUNTER

PLAINTIFF

AND

MICHAEL BROWN

DEFENDANT

DAMAGES - Motor vehicle accident - Pain and suffering - Loss of amenities - Loss of earning capacity - Special damages

Sykes J (Ag)

1 Miss Winnifred Hunter is an octogenarian. Her birth day is February 11, 1919. She has survived, unscathed, the greater part of the twentieth century including World War 2; at least until December 9, 1998. Prior to retirement she made her contribution to this country working as an office attendant.

2 On her retirement she began another career as a self employed person. She baked and sold, one of Jamaica's favourite pastries, cup cakes. This she did until the morning of December 9, 1998, in her eightieth year, when she was struck down by a motor car driven by the defendant. He took her to the Spanish Town Hospital. While at the hospital she received stitches in the back of her head. She was X rayed. Needless to say she experienced great pain and discomfort while at Spanish Town Hospital. She was treated and sent home the same day.

3 The pain was so excrutiating that it restricted her movements from the left hip to her left foot. She continued treatment at the Spanish Town Hospital until sometime in 1999.

4 In April of 1999, the year of the gas riots (to use the plaintiff's words), which to the best of her recollection was the year after the accident, she entered the University Hospital of the West Indies (UHWI) as a private patient. She cannot recall how long she spent there but it "was a few days well". After she went to UHWI she did not return to the Spanish Town Hospital.

5 Her main physician at UHWI was Dr. Mark Minott. His recommended course of treatment included physiotherapy.

MEDICAL EVIDENCE

6 Dr. Minott's report is dated June 10, 1999. He first saw the plaintiff on February 25, 1999. The report states briefly the history of the plaintiff at the time she presented to the Spanish Town Hospital and what the findings were. At Spanish Town the radiographs of the left knee showed a fracture of the lateral tibial plateau which was depressed ten millimetres. There was marked antero-lateral bruising over the left knee with painful limitation of movement. Her knee was placed in an above knee plaster-of-paris splint. The knee was reviewed on December 17, and December 21, 1998. On her second visit the splint was replaced with a full above-knee cast. When she was reviewed at the surgery clinic she complained of pain in the left ankle. Radiographs confirmed that her left ankle had an undisplaced fracture that was healing well. This concludes the medical findings while she was a patient at Spanish Town Hospital.

7 When Dr. Minott first saw her on February 25, 1999 her fracture was eleven weeks old. She complained of persistent pain in the left knee. He noted that she was "a very active lady prior to her injury despite her chronological age". Her left knee had valgus angulation of 15 degrees which compared with 0 degrees on the right. She was referred to KPH for surgery to elevate the depressed fracture. The surgery was successfully done at UHWI on April 17, 1999. Even post surgery she still complained of discomfort in the left knee but it was stable and had a 90 degree range of motion. The purpose of the surgery was to reconstruct the plaintiff's left knee which should provide her with a stable knee that could weight bear evenly throughout its full range of motion. When Dr. Minott issued his report he could not say at that time what the permanent impairment might be since she had not reached the limit of her rehabilition. He said, at the time of his report, that the graft and the outer cortex of the tibial plateau were not fully incorporated and so she was not able to weight bear at that time. In other word he could not say how successful the surgery was. He thought that the total period of partial disability would be six months. The optimistic prediction of the doctor has not been borne out.

8 Dr. Dundas saw the plaintiff over one year later on September 6, 2000. He says that she complained of pain and soreness in the left knee for the past two years. She outlined to him the history of her injury and treatment. One of her complaints was that she had to give up her egg farming. She also. had to give up her baking as this required her to stand for long hours. He said that she could not weight bear - a clear indication that the surgery was perhaps not as successful as was anticipated.

9 When he examined her she had a 3 cm deficit in the left thigh circumference and 1cm deficit in the left calf circumference. The left knee could flex 114 degrees compared to 128 degrees for the right knee. Collateral and cruciate ligaments were stable and she had patello-femoral crepitus in the left knee. X rays revealed that the fracture of the left tibia had healed. However the doctor was impeded in his analysis because he did not have the original x rays to compare with the ones that were done for his examination. He noted that there were significant problems in relation to the strength of the knee with resultant osteoarthrosis and restriction in range of motion. There was also a deficit in her left thigh and calf circumference. The doctor noted that the plaintiff now required the use of a cane full time.

10 Dr. Dundas' prognosis was not good. Her status will continue to deteriorate in view of her age and she will not be able to resume her egg farming or pastry business. The residual disability was 24% of the whole person.

11 Between the visits to Dr. Minott and Dr. Dundas the plaintiff was treated by a physiotherapist at Apex Health Care Associated. A report was prepared by the physiotherapist. She was first seen on June 8, 1999. At that time she was not weight bearing. She was wearing a hinged knee brace and walked with auxiliary crutches. The significant findings were 0-40 degrees of active flex of left knee; fair muscle power in left hip and knee; good muscle power in left ankle. There was swelling of the left knee with increased skin temperature at the knee. Physiotherapy ended on July 2, 1999. When this form of treatment stopped the functional active knee flex of left knee was 0 – 102 degrees; muscle power at hip and knee was good; swelling of the knee was reduced and skin temperature at the knee was normal. She was now ambulant with the help of a quad cane. She was seen a total of eleven times. The treatment was obviously beneficial.

RESULT OF INJURIES

12 The plaintiff says that her left knee is still painful. Pain killers no longer help. She has stopped taking them. She now walks with the help of the cane. Since the date of the accident she can no longer move about as freely as before. She had to stop baking because she could no longer stand for the long period required. Her daughter now helps her at home. The daughter has had to give up her job to be her nurse. She has had to cease egg farming. In effect she no longer works. She now has a 24% disability of her whole person. Dr. Dundas is of the view that "this status will continue to deteriorate in view of her age and he "[does] not see her being able to resume her livelihood in the future". The phrase "this status" could only be referring to her whole person disability. In other words her disability will increase with age.

SPECIAL DAMAGES

13 The plaintiff claims a substantial sum for special damages comprising the following items:

MEDICAL EXPENSES

A.	Dr. Mark Minott	$ 7,000.00
B.	Dr. Grantel Dundas	$ 9,500.00
C.	Cost of X rays	$ 3,800.00
D.	Transportation	$ 3,500.00
E.	Medication & drugs	$ 1,250.00
F.	Loss of earnings	$ 261,000.00
	Sale of eggs $2,000/wk
	For 58 weeks and
	continuing
	Sale of pastry $2,500/wk
	For 58 weeks and
	continuing
G.	Cost of domestic help	$145,000.00
	TOTAL	$431,050.00

15 By notice of amendment to statement of claim dated March 25, 2002 that was served on the defendant the plaintiff indicated that she was going to amend the statement of claim by adding the items listed below under special damages:

A. Further office visits (Dr. Minott)	$ 10,000.00
B. Costs of surgery	$ 107,000.00
C. Estimated Cost of future surgery	$ 115,000.00
D. Further costs of X ray	$ 4,200.00
E. Cost of physiotherapy	$ 7,300.00
TOTAL	$243,500.00

16 By another notice on intention to amend the statement of claim dated April 15, 2002 which was served on the defendant the plaintiff indicated that she intended to add the item listed below to special damages:

A. Cost of hospital accommodation $42,091.91

17 The notice to amend...