Kamaal Pitterson v Attorney General of Jamaica

 
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[2016] JMSC Civ. 49

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO 2009HCV02776

Between
Kamaal Pitterson
Claimant
and
The Attorney General of Jamaica
Defendant

Ms. C. Hudson instructed by K Churchill Neita & Company for the Claimant

Mrs. G. Mitchell instructed by the Director of State Proceedings for the Defendan

DAMAGES - Gunshot - Gunshot wound to leg necessitating amputation - Loss of two fingers on dominant right hand - Pain and suffering and loss of amenities - Post Trauma Stress Disorder - Applicability of multiplier/multiplicand approach to replacement cost of prosthesis and for loss of earning capacity - Assessment

Lindo J
1

On April 26, 2008, the claimant, then 17 years old, was walking along the Christian Pen Road in the parish of St. Catherine with his friends when they were stopped by a police constable. Whilst alighting from the service vehicle the constable's firearm was discharged and the claimant was hit in the right leg and he sustained injuries and suffered loss and damage. He filed a claim form and particulars of claim on May 29, 2009 against the defendant alleging negligence on the part of the constable who was acting as agent or servant of the Crown.

2

Liability is not in issue as on September 17, 2009 a defence admitting liability and limited to quantum of damages was filed on behalf of the defendant and judgment on admission was entered on September 21, 2009.

3

At the hearing of the assessment of damages on June 30, 2015, the following documents were agreed and tendered in evidence:

  • I. Medical report of Dr. R Gafoor dated October 20, 2008

  • II. Medical report of Dr. Allie Martin dated August 23, 2010

  • III. Medical report of Dr. Pierre Anthony-Leake, dated September 9, 2014

  • IV. Medical Report of Dr. Grantel Dundas dated October 3, 2010

  • V. Medical report of Dr. Wendel Abel dated January 16, 2012

  • VI. Prosthetist reports of Mr. Thomas Passero dated February 7, 2011 and March 12, 2014.)

  • VII. Medical report of Dr. Rory Dixon, dated May 5, 2014

4

The sum of US$560.00, as well as JA$2,422,410.21 was agreed as special damages.

5

The witness statement of the claimant dated May 11, 2012 and the supplemental witness statement dated September 23, 2014 were admitted as his evidence in chief and he was subject to cross examination.

6

On November 17, 2015 at a further hearing, the prosthetist report of Mr Thomas Passero dated and July 29, 2014 was admitted into evidence with the proviso that paragraph (iv) relating to the estimated cost of the sum of the major components of the Helix type prosthesis was excluded.

Submissions of Counsel for the Claimant
7

With regard to the assessment of general damages for pain and suffering and loss of amenities, Ms Hudson urged the court to be mindful of additional factors apart from the general principles. She noted that Rattray P. in Jamaica Telephone Co. Ltd. V Delmar Dixon (bnf Olive Maxwell) SCCA 15/91 (June 7, 1994) urged the court to take into account the importance of athletic prowess to young persons and the effects of disfigurement on them, bearing in mind the claimant's age, the nature and extent of the injuries and the treatment undergone.

8

Counsel referred to the following cases:

  • i. Trevor Clarke v National Water Commission, Kenneth Hewitt and Vernon Smith C.L. 1993 C 71 (25.10.2001) Khan, Vol. 5 page 21 the plaintiff aged 54 at time of accident, had his foot smashed in a motor vehicle accident. He was hospitalised for 2 weeks initially, his right foot was amputated and a second amputation was done as the wound was not healing satisfactorily. He was an outpatient of the hospital for 7 months. He assessed as having a 36% permanent partial disability. He was awarded $3m (CPI 60.4) which updates to $11,538,079.47

  • ii. Owen McKenzie v The A.G. of Jamaica Claim No. CL 2001/M181 where the claimant was awarded $6m in December 2007(CPI 116.8) after having suffered gunshot wounds to both thighs resulting in above knee amputation of the right leg. He was assessed as having 36% PPD of the whole body. The sum awarded updates to $11,933,219.17

  • iii. Orville Lovelace v Gary Anderson & The A.G. of Jamaica Claim No.2007HCV00145, unreported, delivered May 26, 2011. He suffered significant fracture injuries to his chest, right shoulder and arm and both lower limbs and underwent several surgical procedures. He had a combined whole person disability of 36% and an award of $20m was made on May 26, 2011(CPI 171.0) which updates to $27,169,590.64

  • iv. Mary Hibbert v Reginald Parchment Khan, Vol. 5, page 191 who was awarded $900,000.00 in May 1999 (CPI 49.54) having suffered a gunshot injury to the abdomen, undergone colostomy surgery and having to wear a colostomy bag for four months. The award updates to $4,220,226.07

  • v. Michael Jolly v Jones Paper Co. Ltd. & Anor. Khan, Vol. 5, page 120. He suffered lacerations to his hand and fingers, underwent surgery and was assessed with 7% PPD of the whole person and was awarded $800,000.00 in November 1998 (CPI 48.82). This updates to $3,806,636.62

  • vi. Kenton Hutchinson v Sunny Crest Enterprise Ltd., CL1999/H017 unreported, delivered October 19, 2001 where the claimant suffered amputation of three fingers of his dominant right hand and was assessed as having a whole person impairment of 25%. An award of $1.4m was made in October 2001 (CPI 60.4) which updates to $5,384,437.08

9

Counsel submitted that based on the cited cases and the principles governing the assessment process, an award of $25,000,000.00 for general damages would be appropriate.

Submissions of Counsel for the defendant
10

Mrs. Mitchell referred to the cases of Trevor Clarke and Owen McKenzie as being useful guides, in addition to the following:

1
    Delroy Parchment v Superintendent Brooks & Ors Khan, Vol. 6, page 39 where the claimant sustained fracture to his right leg and lacerations over his body and was taken to hospital and then to the lock up where he was in pain and an ulcer developed on his right leg and when he was taken to the hospital his leg had to be amputated. The doctor found that there was a penetrating wound to the anterior aspect of the upper leg with exposed bone. He had crepitus and gas gangrene of the right leg which was malodorous and in a decomposed condition. He spent two months in hospital. He was awarded $2,000,000.00 in June 2002 (CPI 62) for pain and suffering and loss of amenities which updates to $7,493,548.38 (CPI 232.3 December 2015) 2. Percival Swaby v Metropolitan Parks and Markets , Harrisons' Assessment of Damages, 2 nd Edition, page 299 where the claimant suffered injuries resulting in the amputation of both legs, above the knee; the judge found that there was no question that he must have been in severe pain. He was assessed with a whole person impairment of 72%. In March 2004 (CPI 75.4) he was awarded $7,300,000.00 which updates to $22,490,583.55 3. Icilda Lammie v George Leslie , Harrison's Assessment of Damages 2 nd Edition, page 291. The claimant lost all phalanges of her left index and middle fingers and had a 3 inch laceration running through the left palm proximal to the amputated fingers and in September 1989 (CPI 5.06) was awarded $35,000.00 which updates to $1,606,818.18 4. Marva Protz-Marcocchio v Ernest Smatt , Khan, Vol. 5, page 284. In this case the claimant was bitten by dogs and suffered physical as well as psychological injuries. She was diagnosed as having severe PTSD and associated phobic response. In October 1993 (CPI 21.41) she was awarded $100,000.00 for PTSD. This updates to $1,085,007.00 5. Angelita Brown v Petroleum Company of Jamaica , Khan, Vol. 6, page 174 This claimant suffered severe burns and resulting psychological injuries and was diagnosed with major depression and PTSD and in April 2007 (CPI 102.9) she was awarded $340,000.00 which updates to $767,560.73
11

Counsel noted that in the case of McKenzie, he was shot in both legs, spent 5 months in hospital, was re-admitted and surgery was again performed. He spent a further 6 weeks in the hospital whereas the claimant in the case at bar had a shorter stay in hospital and no subsequent infection developed, while in the case of Swaby, it is evident that he suffered more severe injuries than the instant claimant as both legs were amputated. She therefore suggested that an award of $10,000,000.00 is reasonable for general damages.

12

In relation to the injury to his fingers, Counsel for the defendant submitted that an award of $1,000,000.00 be made. She compared the injury to that suffered by Icilda Lammie, noting that Lammie's entire left index and middle fingers were amputated. Additionally, she pointed out to the court that Dr Dundas stated that the claimant was able to write and perform most functions with his right hand, despite the amputations.

13

For Post Traumatic Stress Disorder (PTSD) Counsel suggested that an award of $500,000.00 be made based on the report of Dr Abel who indicated, inter alia, that the claimant appeared well turned out and his emotional expression was of normal range and intensity. She also noted the fact that the claimant waited three years before going to see the psychiatrist and expressed the view that if he had sought treatment earlier this could have reduced the degree of his psychological injury.

14

The court notes that a number of the cases referred to by both Counsel can offer some assistance in assessing damages in relation to the physical and psychological injury suffered by the claimant. The significant injuries and resultant disability, and the effect of that disability on Clarke were somewhat similar to those of the claimant in the instant case. Clarke suffered an open fracture of the lower third of the right tibia, an initial amputation above the right knee and then a further amputation after the onset of gangrene and he purchased an ‘artificial leg’...

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