Mowatt (Robert) v Courtney Coote
| Jurisdiction | Jamaica |
| Judge | McDonald, J (Ag.) |
| Judgment Date | 26 September 2005 |
| Judgment citation (vLex) | [2005] 9 JJC 2601 |
| Court | Supreme Court (Jamaica) |
| Date | 26 September 2005 |
DAMAGES - Motor vehicle accident
NEGLIGENCE - Vicarious liability
On the 24 th August 2003, Mr. Robert Mowatt, a construction worker was travelling as a passenger in a motor car owned by the Defendant along the Spring Hill main road in the parish of Trelawny, when it collided with a utility pole. At the time the car was being driven by the Defendant's servant and/or agent. Mr. Mowatt sustained injuries and incurred loss and expense as a result of the accident.
He was taken to the Falmouth Hospital and later transferred to the Cornwall Regional Hospital where surgery was performed on his hip and his right pinna was stitched back on. The pinna did not hold and after a couple of weeks a complete separation had to be performed.
The Claimant's evidence is that he remained in hospital for two months during which time he could not move around as his left foot was in traction. After he was discharged from hospital, he used crutches for a month and a half, and then he used a cane for about two weeks. He went back to hospital for treatment twice and visited a private doctor on two occasions.
Mr. Mowatt said that he can no longer do some of the things he could do before the injury such as driving around for long periods of time because of the hip.
Medical reports of Dr. Alberto Hing Soler dated October 28, 2003 and that of Dr. V. Suman dated February 2, 2004 were admitted into evidence as exhibits I and II respectively.
On examination of the Claimant Dr. Hing Soler found blood in the auditory canal, complete loss of pinna with irregular edges of the wound (skin and cartilage) and moderate swelling of right parotid region.
Medical report prepared by Dr. Suman states that the Claimant was diagnosed with dislocated left hip. It was reduced under sedation; skin traction applied and he was admitted to ward 5 East. Patient got upper tibial pin on August 30, 2003.
Mrs. Campbell advised the Court that she was unable to find any one case which involved loss of pinna and dislocation of hip. She therefore proposed to rely on the case of Fitzroy Gordon v Dayton Clarke reported at 5 Khan's Reports page 52 which involved hip injury, and ask the Court to increase the award for injury to the ear. The opined that an award of $2 million for pain and suffering and loss of amenities would not be excessive.
In Gordon v. Clarke the plaintiff suffered pains in back, dislocation of right hip joint, and fracture of right pelvis on May 15, 1996. On February 26, 1997. Dr. Emran Ali on examination noted the following: -
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(i) 3 healed triangular shaped scars l″x3/4″ in anterior aspect of the left knee with tendency to keloid formation.
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(ii) 2 healed puncture scars at upper end of right leg being the site of the skeletal traction.
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(iii) well healed 10″ curved incision scar over right buttock.
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(iv) That movements of the right hip was full except for flexion which was limited by about 10 degrees.
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(v) That x-rays showed a well reduced dislocation of right hip with healed fraction across the acetabulum with plate and screws in situ. There was also some para articular ossification in the soft tissue around the joint.
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(vi) That he walked with a slight limp and complained of pains in the hip.
It was the doctor's opinion that the hip was prone to develop early degenerative arthritis and he assessed permanent partial disability at 15% of the right lower limb. On the 25 th January 1999 general damages were awarded in the sum of $710,000.00. Such an award would amount to S1,321,486.06 dollars today - (using CPI of 2214.7 for August 2005).
In the case under review no percentage PPD has been given. The medical reports contain no prognosis of arthritis in the Claimants hip, nor is there any finding of the Claimant walking with a limp.
In respect of the injury to Mr. Mowatt's ear, Dr. Suman's medical report speaks to the compete loss of the pinna resulting in the Claimant having "permanent and severe aesthetic defect..."
The Claimant testified that he sometimes feels pain inside the ears especially at night, and people ridicule him most of the time when they see him. They laugh at him and call him names like one-ears", "monster", and "spaceman". He said this breaks his spirit and makes him feel funny like he is not normal.
I am of the view that an award for pain and suffering and loss of amenities in the sum of $1.7 million is appropriate in all the...
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