Morgan v Goodyear Jamaica Ltd

 
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Supreme Court

Marsh, J.

C.L. M 105 of 1997

Morgan
and
Goodyear Jamaica Limited
Appearances:

Mr. N. O. Samuels for the plaintiff.

Mr. D. Henry instructed by Messrs. Nunes, DeLeon and Company for the defendant.

Damages - Personal injury — Plaintiff sustained injury as a result of a malfunctioning at defendants premises — Damages of $750, 000 awarded.

Marsh, J.
ASSESSMENT OF DAMAGES
1

The delay in handing down this judgment is greatly regretted.

2

Assessment of damages is the sole task herein assigned as liability is not an issue.

3

The plaintiff is currently unemployed but up to May 17, 1996 he obtained his living as a U2 Machine Operator at defendant's company at Morant Bay, St. Thomas. He also added to his income by operating a poultry farm on a fairly limited scale. He was born on January 30, 1968 and is now married with a family. On November 14, 1995 while operating the abovementioned machine at defendant's plant, the machine malfunctioned and this resulted in his receiving serious injury. He was, he testified, struck to the ground and later found himself in hospital with a doctor standing over him putting stitches into his left ear and that he could not move. This was at the Princess Margaret Hospital, St. Thomas. There was pain from his neck down to his hands. A few hours later, he was taken to Medical Associates Hospital in Kingston. He was examined, given medication and referred to Dr. Chutkhan, who was absent he was seen by a Dr. Vaughan of Dr. Chutkhan office. Dr. Vaughan prescribed medication and a course of physiotherapy. He was then taken home and next day he was taken to defendant's facilities' Medical Clinic at Morant Bay. This is when the referral was made to Dr. Chutkhan and plaintiff seen by Dr. Vaughan. He also saw Dr. Lyle Harper, Dr. Graham, Dr. Horace Hall, Dr. Hal Shaw and Dr. Randolph Cheeks.

MEDICAL EVIDENCE
4

Drs. Hal Shaw and Randolph Cheeks were called to give evidence while Dr. Chutkhan's Report and that of Dr. Graham were, by agreement, tendered in evidence. Exhibit 1 was a report from Eureka Medical Limited concerning an MRI (Magnetic Resonance Imaging) of the plaintiff's spine (cervical) performed by Dr. D. Graham.

5

The findings were as follows:

“There is a slight cervical scoliosis. The odontoid process appears in a normal relationship with the anterior arch of C1. There is a small sub-ligamentous disc bulge at C6 - C7 level. This bulge does not appear to cause significant effacement of the underlying thecal sac and the cord itself is not deformed. There is no evidence of abnormal cervical cord signal to suggest ischemia or myelomalacia.

6

Impression-

1
    Slight cervical scoliosis. 2. Small subligamentous disc bulge at the C6 - C7 disc level. This bulge does not appear to cause significant thecal sac or cord deformity.
7

Referring physician was Dr. D. Graham.

8

Exhibit 2

9

Dr. Winston Chutkhan's medical report - Dr. Chutkhan saw plaintiff as a patient on December 7, 1995 Report outlined the reported history of how plaintiff obtained his injury. His clinical findings were as follows:-

10

There was some decrease in the range of movements in the cervical spine but no abnormal neurological signs. An X-ray of the neck failed to reveal any bony injury.

11

Plaintiff returned to see Dr. Chutkhan on January 10, 1996. On this occasion, examination revealed that plaintiff “would allow very little movement of his neck and shoulders.” Medication was prescribed and physical therapy advised.

12

When again seen by Dr. Chutkhan, on February 7, 1996, plaintiff stated he was still having pain when he turned his neck and was also having cramps to his right hand. Another visit was made to Dr. Chutkhan on 13th March, 1996. At this time, plaintiff was advised to return to work. Dr. Chutkhan then discharged him from his care.

13

On 3rd October 1996, plaintiff saw Dr. Chutkhan again, indicated he was feeling much better, but that he had pain in his left upper limb and numbness in his left hand. There was slight tenderness over the trapezius, full range of movement of his cervical spine with slight pain at the extremes of movement. The same was true of his left shoulder and there was slight pain in full abduction.

14

In summary injury was to neck, both muscular and ligamentous. A full recovery was expected.

15

Dr. Randolph Cheeks, Consultant Neurosurgeon gave viva voce evidence and his medical report of August 8, 1996 was also available to court as an exhibit, tendered by consent. Dr. cheeks opined that plaintiff's was “not a serious head injury.” Injury to neck was ligamentous and involved the annular ligament of the C6/7 intervertebral disc. The resultant disability is rated at 5% of the whole man for all deranged cervical disc, plus one percent for the loss of 30? of lateral rotation. His permanent partial disability, using the guidelines of the American Medical Association. In short, permanent partial disability is rated at six percent of the whole man. Dizziness “Blackouts” is a consequence of the diffuse head injuries” which he sustained. It would resolve itself in about nine - twelve months.

16

Dr. Hal Shaw, an E.N.T. Specialist first saw and examined plaintiff on 6th, 12th of July 1996, and testified of his findings relevant to such examination. Audiograms showed that there was severe mixed hearing loss. Plaintiff complained of ringing in his left ear, since January, 1996. Plaintiff's hearing loss was about 60 - 70% of left ear and permanent. Hearing aid would be unhelpful in this case. The ringing in the ear, “one of the most disabling complaints a patient may be suffering from” is sometimes treatable.

17

Dr. Shaw testified that in the instant case, ringing in the ear is not treatable. Plaintiffs hearing loss will definitely lower his performance on a job. Spoken words would have to be repeated to him and his safety may be jeopardised, in cases where it is important to know exactly from where sound is generated. Both ears are needed. Ringing in the ear or “Tinnitus” may disturb sleep or disturb physical performances in the daytime.

18

Dr. Shaw stated that plaintiff was suffering from a skull fracture of the left middle cranial fossa. However he admitted to question if he had any other of plaintiff's record available he said ‘no’. He has not therefore satisfied this Court as to why he concluded that plaintiff had fracture of the cranial fossa.

19

By letter dated May 8th, 1996, defendant terminated the employment of plaintiff as a result of “your inability to perform your normal duties since November 1995.” This letter was tendered by consent as Exhibit 4.

20

Plaintiff's evidence is that up to the time he testified in court, “there has been no improvement in my condition since accident.” This seems an exaggeration of the situation, bearing in mind the medical evidence, specially of Dr. Chutkhan. Plaintiff indicated that he found himself in hospital and generally gave the impression that after accident, there was a period when he was not conscious of what was happening, until he discovered he was in hospital.

21

Dr. Cheeks was of the opinion in cross-examination that the plaintiff was not rendered unconscious by the blow as the blow was not enough to render him unconscious but enough to ‘disturb his mental state.’ Plaintiff will suffer exacerbations of painful stiffness in the neck and pain in the right arm and forearms, intermittently and at times of heavy exertions. This situation, in years to come will be worsened by normal wear and tear.

22

Because of compression damage to the spinal cord at the nerve to his...

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