Morris v Gutzmore
C.L. M-131 of 1990
John Graham instructed by Broderick and Graham for plaintiff.
Christopher Samuda instructed by Piper and Samuda for defendant.
Damages - Personal injury — Disability of lower limb injury — Collision at roundabout — Defendant at fault and testimony inconsistent with evidence — Plaintiff's account of accident accepted by court — Special damages proved — General damages assessed at $215,000 — Pain and suffering serious.
Just outside of Spanish Town there is a roundabout. On the 18th of November, 1919 at about 10:30 a.m. the plaintiff negotiated this roundabout and is proceeding towards Bog Walk. Ahead of him, approximately 5 chains away on his left, St. Johns Road enters into the main road on which the plaintiff is travelling on his motor cycle. On the plaintiff's account, he saw the defendant's vehicle ‘pointing’ poised as it were at a stop to enter the main road. There was a stop sign at the juncture where St. Johns Road meets the main road. He saw no movement and formed the impression that that vehicle had stalled. He said he was travelling quite slowly to the left of the road and as he approached the juncture of St. Johns Road and the main road he veered to the middle of the left land. Then as he reached the mouth of St. Johns Road the defendant's car suddenly moved out and collided with his motor cycle. Quite graphically he described how ‘me and bike pitch over and skate – ended up on the right hand side of the highway on the asphalt.’
Now between the roundabout and St. Johns Rod, there is what is called a condemned road. This is a road that was once in general use, but is no longer so, if at all. There is agreement that there is a concrete curb wall at the end of that condemned road where it abuts the main road. To the defendant there are spaces in this wall which will permit a motor cycle to pass through. The plaintiff says there are no such apertures - further that the condemned road is covered with bush. The defendant swore there was no bush. The thrust of the cross-examination of the plaintiff was that he (plaintiff) came out of this condemned road and then suddenly swerved into the path of the defendant's vehicle. On the defendant's account this condemned road was about 1 1/2 chains from the juncture of St. John's road and the main road.
This is the defendant's account of how the collision took place:
“There is a stop sign where St. John's Road meets highway. I stop at juncture. I turn my right indicator on. I look right, left and right again. When look right again nothing coming from right. I could see down to where roundabout is about 3/4 mile away. I proceed across to Spanish Town – turn right proceed towards Spanish Town. As proceeded to Spanish Town something happened. Suddenly I saw a motor bike coming towards me. It was on my side of the road, as I was going awards Spanish Town. It was coming at about 50 m.p.h. After I made turn I travelled about 1 1/2 chains before I first saw motor bike. When I first saw motor bike it was about 8ft from my vehicle. I brought my vehicle to a dead step. It crashed into left side of my car. It crashed into extreme left of left hand of car. It hit the extreme left fender!
Under cross-examination the defendant we taxed as to why he did not see the motor cycle sooner. There were these questions and answers:–
Question:- Why is that you did not see the bike until it was 8ft away from your car?
Answer:- (after a very long time) The reason is that he was coming so fast.
Question:- Is that the only reason?
Answer:- That is the only reason.
When pressed the defendant said, “The truth is that the only thing I can say about that bike is that it was on the highway when I first saw it”. Between the juncture of St. Johns road and the main road is straight unimpeded passage. At no time neither in examination-in-chief nor in cross examination does the defendant speak to the plaintiff entering the main road from the condemned road. The pleadings on behalf of the defendant makes no mention of any such a manoeuvre. The injuries suffered by the plaintiff – which will be detailed subsequently are consistent with his account. The defendant at times seemed quite confused. His demeanour was unimpressive and there was a total want of sincerity in the way he performed in the witness box. The defendant has constructed an incredible account in an effort to avoid liability - an account which as put by his counsel he himself has destroyed. As the events were unravelling the plaintiff said that defendant told him. “Is alright a fi mi fault”. This came out in cross examination. I accept that the defendant did say so. In the midst of the drama he knew he was at fault. He now comes and denies every bit of responsibility.
To return to the evidence of the defendant there was this:–
Question: The swerve that the bike made was it into or away from your car?
Answer: It was swerving all over the place. By serving all over the place I mean he was going from left to right to left and right again.
At no time was it put to the plaintiff that his motor cycle was swerving ‘all over the place’. It is my view that the nebulous response, is born out of a web of fabrication. He is giving an answer which he thinks will cover all the possibilities. It does not. I prefer, without the slightest hesitancy, the account given by the plaintiff. I accept his account and I find that at all times he managed his motor cycle with the requisite care and attention. There will be judgment for the plaintiff on both the claim and the counterclaim.
I will now deal with the general damages to be awarded. The evidence of Sir. John Golding, the eminent orthopaedic surgeon is to this effect. He first saw the plaintiff on the 27th of December, 1991. This is more than two years after the date of the collision. He observed that there was a compound fracture of the left tibia which had partly united with a deformity and shortening – this shortening was some two inches. There were multiple discharging sinuses on the front and inner side of the lower leg. Pus was being discharged from the sinuses – which sinuses were the result of dead bone protruding through the skin. A most offensive odour emanated from the sinuses. The leg was swollen and the veins of foot were distended and enlarged. The whole of the area of the left lower was scarred. (I looked at the scarring and the epithet “grotesque” used by counsel to describe the scarring is quite apt). There was a segmental fracture in that the middle 1/3 of the tibia was detached from the upper and lower part. Sir John Golding performed surgery on the 9th of January, 1992, when he opened up the whole of the front of the lower leg and removed all the dead bone. Thereafter the leg proceeded to heal remarkably quickly. In respect of partial disability there was 28% of the lower limb i.e. leg and 10% of the body. The plaintiff is now at stage of maximum recovery.
The plaintiff recounted that he was hospitalised at the Spanish Town Hospital for 2 weeks and thereafter at the Kingston Public Hospital for 2 weeks and 3 days. He made repeated visits for dressings. He spoke to his broken and bruises to both his elbows, his back and his side. He quite understandably endured severe pain. To him his foot “looked embarrassing and shameful” and he always tried to hide It. He had to suffer the taunts of being labelled “the stinking foot man”. His foot “hinder me from everything, come in like mi life gone”. When he said this he became convulsed in tears. He complains that because of his condition his common law wife has left him. A young man of 26 years he cannot summon the courage to form any relationship with a woman. He, who hither to “loved to exercise” can no longer do so. The quality of his life how, he said, been substantially impaired.
In arriving at the award under the head of pain and suffering and less of amenities I do not accept that any of the plaintiff's ribs were fractured. There was no medical evidence to support this. However, I accept that he received a blow to his chest region which did cause pain. In this assessment my starting point is the dicta of Campbell, J.A. in (by nest friend Stanley Lane)(S.C.C.A. 44/87) (unreported) where he said that:
“Personal injuries awards should be reasonable and assessed with moderation and that as far as possible comparable injuries should be compensated by comparable awards”.
As a guide I nor refer to two eases which has attracted the attention of our Court of Appeal. The first is . 44/85) (unreported) dated February 14, 1986. Here there was a fracture of the tibia and deformity. There was a shortening of the injured leg. There was no stated percentage permanent partial disability as doctor preferred to retain his opinion on this aspect until the conclusion of an acstotomy which is an operation involving bone realignment. The award was $50,000.00. The second case is . 1987/B-428 (Khan's compilation volume 3). In this case the injuries were:–
(i) Comminuted compound fracture of...
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