Jane Williams Thompson v Attorney General of Jamaica
| Jurisdiction | Jamaica |
| Judge | Thomas, J. |
| Judgment Date | 20 May 2020 |
| Date | 20 May 2020 |
| Docket Number | CLAIM NO. 2013/HCV06818 |
| Court | Supreme Court (Jamaica) |
[2020] JMSC Civ 93
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
CLAIM NO. 2013/HCV06818
and
Ms. D'Andra Grant-Wright instructed by K. Churchill Neita and Company for the Claimant.
Mr Dale Austin instructed by the Director of State Proceedings for the Defendants.
Assessment of Damages, Special Damages — General Damages — Claim for Reduced Pension — Whether the Claim should be for Loss of Earning Capacity.
This Claim is for damages in relation to a motor vehicle accident which occurred on the 28 th of January 2013. Judgment was entered on admission in terms of liability. The Claimant Jane Williams-Thompson is a medical doctor. She testifies that as a result of the accident she sustained the following injuries:
She felt pain all over her body especially her right hip and leg. She could not move her hip because the least amount of movement cause pain. She had cuts to her right arm, left leg, right side of her forehead and right eye.
She states that:
She was first treated at the St Ann's Bay hospital, then she was transferred to the University Hospital of the West Indies the next day. X-ray confirmed that she had a fractured femur. She was in pain the whole time though she got medication. She had a close reduction screw fixation surgery. She was discharged on the 2 nd of February, 2013. to do follow up physiotherapy. She was having dreams about the accident and dying. She was not sleeping well at nights, irritable in the days, and had issues with being driven by people. If she had to go anywhere she had to sit right behind the driver and keep her eyes closed for the entire trip. Dr. Lewin psychologist diagnosed her with posttraumatic stress disorder
She further testifies that:
After she got discharged from the hospital she had crutches to help her around. She developed constant pain in her left hand. X-ray revealed a fractured thumb. She had to use a wheel chair. The injuries affected her marriage in a bad way. She was unable to engage in sexual intercourse for months due to pain and stiffness in her hip. She had limited therapy in the hospital and had to pay for private therapy. She also did acupuncture in England for pain relief. Up to September 2013 she was still feeling pain. X-ray showed that she had a small collapse in the implant. She was not able to resume work until 6 months after the accident. Up until March 2014 she was still feeling the side effects of the accident. When she walked for more than 20 minutes she would feel pain in her right buttocks. She had difficulty coming downstairs as her right leg was weaker than the other which made her feel unbalanced and had a big issue sleeping on her right side because she felt pain so bad. Nothing seemed to be helping with the pain.
Her evidence continued as follows:
In England she was referred by Dr. Cunningham because of the constant pain to Orthopaedic Surgeon Doctor Census. She was seen by Doctor Census in June 2016. Doctor Census found that the metal screw in her hip was displaced. She did surgery to remove the metal work from the hip with a view to do the hip replacement as recommended by Dr. Census. She did acupuncture before and after the surgery. She was never able to achieve full pain relief with acupuncture but it reduced the pain so that she could function in her everyday life. She had to have more therapy and exercise to regain her muscle strength. She also saw Orthopaedic Surgeon Doctor Mcloughlin in November 2016 as she was still feeling pain and discomfort in her thumb and right thigh. It was recommended that she did heal raise to address 1.5cm shortening of her right leg. The heal raise will last for 5 to 10 years.
She further states that:
After the 2 nd surgery she was out of work for another 6 months period. She came back to Jamaica and was attended to by Orthopaedic Surgeon Doctor Grantel Dundas in May 2017. She was still experiencing pain and stiffness in her hip, pain in her right knee and intermitted pain in her right thumb. She was diagnosed with avascular necrosis. That is bone tissue damage, due to interruptions in blood supply. She returned to England and was attended to by Doctor Mc Gregory Riley who referred her to consultant Orthopaedic Surgeon Doctor Kerry who specializes in hip replacement. He performed a hip replacement surgery in November 2017. She had 6 months, rehabilitation after that. During the time she was unable to walk like she used to. She had to use crutches. She did another course of acupuncture to ease the pain and physiotherapy. This helped but she is not back to her pre accident status but better than right after the accident.
She says that:
Now, six years after the accident she still feel pain in the hip whenever she sits for too long, bend down switch between sitting and standing and when she walks for too long. She can't go through regular physical activity, exercise, running and jumping, which limits her previous lifestyle. She missed out on job opportunities. There was concern about her mobility following her second hip replacement. She had to take out an NHS pension after the accident as she had no source of income. This involved a 40% reduction in pay out as she was only 50 years old. It is not sufficient to live on in the UK and has long term financial implications. She was doing farming and fishing. She is no longer able to do so now. She is now having problems in her right knee which has some osteoarthritis and swells on the medial side. She was a Locum Physician in England. That is, she filled in for regular physicians when they are out. She was normally employed on a six months contractual basis. She was unable to perform her duties as a Locum Physician. She cannot undertake any high impact activities like sport which she used to do a lot of. She used to farm and fish in Jamaica. She cannot do that now. She gets stiffness and pain if she does too much activity. She will need another hip replacement in the next 10 to 15 years
She has tendered in evidence:
Letters relating to a lost contact and reduced pension benefits, medical reports, medical receipts and receipts for acupuncture.
On cross examination she states that:
In her witness statement she did say she gave evidence that she undertook acupuncture on the advice of her orthopaedic doctors. None of these doctors wrote this down in their medical reports. She was directed to undergo physical therapy. She was advised that this would improve the prospects of her recovery. She agrees that she began her physiotherapy sometime after the accident occurred. She had 3 operations. She had to have physiotherapy after each one. She was on crutches after every operation for at least 3 months. The muscles in her leg wasted and the physiotherapy was to rebuild the muscles. The first time she started physiotherapy she was in Jamaica.
She explains her decision for choosing acupuncture over strong medication for her pain relief. She states that the acupuncture helped by providing pain relief. She did take some pain medication in the earlier stages. They helped the pain but gave her side effects like indigestion and constipation. She found the acupuncture better. The acupuncture lasted longer in terms of the relief from the pain, and it reduces the severity of the pain and she had no side effects.
In relation to the special damages I find that the Claimant has provided reasonable justification and evidence for the expenses in relation to her medical expenses and transportation. I accept her explanations that she has given for choosing acupuncture over strong medication for her pain relief.
Despite the absence of receipts, I find that the travelling expenses are reasonable and have been justified. There is unchallenged evidence that the Claimant had to travel to various treatment centres, doctors, and hospital in relation to her injuries.
Mr. Austin submits that the Claim for Special Damage appears to be reasonable except in relation to the loss of use of motor vehicle. I am constrained to share this view. I find myself unable to make any award in relation to the damages to motor vehicle and loss of use. Essentially, I find that it reasonably expected, in the circumstances that supporting documents would have been produced from the wrecker company and assessors, in light of the fact that these entities cannot be considered to belong to the informal sector. No such supporting documents have been furnished. Therefore, I find that the special damages that the Claimant has proven are as follows:
| Medical related expenses | JD$265, 2333.59 |
| £761.74*180.3=137,341.722 | |
| Transportation expenses as follows: | $ JA 60,000 |
| £ 48,0000 |
The initial medical examination of the Claimant on the 28 th of January, 2013 reveals that the Claimant suffered from:
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(i) Hematoma and laceration to the right forehead.
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(ii) Small laceration 1/2 inch cornea of the right eye brow
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(iii) Multiple abrasion and excoriation to the mid third of right arm
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(iv) Multiple abrasions and excoriation to medial aspect distal third of left leg.
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(v) Right hip tender, lateral rotation of right foot
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(vi) Fracture to the head of the right femur.
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(vii) She was treated with screw fixation (See the report of Doctor Sloley)
On the 7 th of March 2013 she was examined by Dr. Maxim Christmas. He found that Radiograph revealed a displaced fracture of the right neck of the femur. She was diagnosed with right displaced trans cervical neck femur fracture. She was assigned 7% PPD of the lower extremity with 3% PPD of the whole person. His prognosis was that she recovered from the injury to the right hip joint but there was...
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