Myrie (Kelleciah) v Beverley Mitchell and Cordell Wilson
| Jurisdiction | Jamaica |
| Judge | SYKES J. |
| Judgment Date | 22 May 2007 |
| Judgment citation (vLex) | [2007] 5 JJC 2201 |
| Court | Supreme Court (Jamaica) |
| Date | 22 May 2007 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
NEGLIGENCE - Injuries in motor vehicle collision
DAMAGES - Pain and suffering - Loss of future income
ASSESSMENT OF DAMAGES, LOSS OF EARNINGS, LOSS OF EARNING CAPACITY, COST OF PAST ASSISTANCE, COST OF FUTURE ASSISTANCE AND A HUNT V SEVERS TRUST,
1. This is an assessment of damages arising from an accident that occurred on May 27, 2000, when Miss Kelleciah Myrie, the claimant, was a passenger in a car, driven by Mr. Cordell Wilson, which smashed into a utility pole in the vicinity of Wee Tom Lane along the Newland Road in the parish of St. Catherine. It was alleged that at the time of the accident Mr. Wilson was the servant or agent of Miss Beverly Mitchell.
2. Judgment was entered against both defendants. Judgment was entered against Miss Mitchell on February 4, 2005, and against Mr. Wilson on January 20, 2006. Miss Mitchell has paid over the policy limit ($1,500,000.00) and the case against her was discontinued by a notice of discontinuance filed January 17, 2007. This assessment is for the total damages recoverable from which will be deducted the sums already recovered from Miss Mitchell.
The assessment
Nature and extent of the injuries sustained
3. There are two medical reports. One dated June 24, 2002, and signed by Dr. R.A. Hussain, Resident, Department of Neurosurgery at the Kingston Public Hospital ("KPH"). The other dated July 10, 2002, signed by Dr. Donald Burke, Resident, Facio-Maxillary Department of the KPH.
4. Taking the first report. Miss Myrie was transferred to the KPH from the Spanish Town Hospital. On admission at KPH she was unconscious and had sustained sever head injury. She responded to pain by localizing but did not open her eyes. She had a sutured wound over the left mandibular area of her face. Her airway was protected by endotracheal tube. A "CAT" scan of the brain revealed multiple contusions in the brain associated with cerebral oedema and traumatic subarachnoid haemorrhage.
5. Radiographs showed a fracture of the left mandible. Her progress was slow but there was consistent neurological recovery. She was discharged on July 10, 2000. At the time of discharge she was conscious, oriented and had difficulty speaking and there was weakness in her left hand and leg.
6. She returned to the Neurosurgery Clinic six more times until February 6, 2002. She continued to make neurological recovery but was confined to a wheel chair and needed help to take care of her daily activities of living. She is confined to wheel chair at home due to weakness of her limbs.
7. The second report tells us that she had a 6cm laceration on the left side of her face. On June 6, 2000, almost two weeks after the accident, she was still unconscious. Her fracture was conservatively treated using interdental wires to stabilise the fractured mandible. The wires were removed by Miss Myrie, which necessitated another treatment option. On July 5, 2000, she had an open reduction and internal fixation along with the placement of arch bars. This operation was done under general anaesthetic. There was satisfactory occlusion and Miss Myrie was discharged as an out patient. On subsequent follow ups it was found that Miss Myrie consistently removed the fixation device. Despite this, the doctor reports that she healed satisfactorily and was discharged from the care of the Facio-Maxillary Department on September 21, 2000. The doctor's opinion was that there would be no permanent disability or dysfunction of her left mandible but left facial scars remained.
8. There is no further medical report, a matter to be regretted when the court is asked to assess damages where the claimant in seeking in excess of $9,000,000.00. Mrs. Champagnie in her written submissions speaks of the claimant suffering from speech difficulty and mental confusion from time to time. There is no evidence supporting this alleged mental condition and it might very well be that her speech impediment was brought about by her when she consistently removed the fixation devices placed on her left mandible by the medical staff. In my view, there would need to be cogent evidence that her speech impediment would have resulted even if the fixation devises were not removed.
The nature and gravity of the resulting physical disability
9. She is now confined to a wheel chair. She lost teeth and has persistent weakness on the left side of the body. She moves with the assistance of a walker and cannot care for her physical needs on a daily basis.
The pain and suffering endured
10. Miss Myrie said that she suffered terrible pain and suffering and loss of amenities as a result of the injuries.
Loss of amenities suffered
11. Miss Myrie has undoubtedly lost a body free from scars. Although there is no medical report indicating her whole person disability it appeared to me that she had lost significant use of her left arm and the left leg appears to be impaired in some way. There is no medical evidence indicating that the left leg was injured but there is evidence that there was general weakness on the left side of her body. Much if not all her daily needs have to be attended to by another person.
12. She complains that she is deprived of the pleasure of participating in sporting activities and activities with her son. Because of her confinement to a wheel chair she is unable to attend events at her son's school. Miss Myrie's mother attends the school functions and this has led the son to call his grandmother, mother, because according to Miss Myrie, her son told her that he does this because the grandmother is playing the role she ought to be playing. This is part of the mental suffering she had undergone and will continue to undergo until, perhaps, her son matures and appreciates the nature and extent of his mother's disability. The son is now 11 years old.
13. Miss Myrie was also unconscious for three weeks. I shall deal with the compensation of an unconscious person in more detail later.
The Assessment
Pain, suffering and loss of amenity
14. In H. West & Son v Shephard [1964] A.C. 364, Lord Morris stated that when a person is unconscious and feels no pain that there cannot be an award for pain and suffering. Therefore those assessments that depend on consciousness are eliminated but that does not mean that an award must necessarily be low because of this. The person may be compensated for the deprivation of the ordinary enjoyment of life. I make this point because Miss Myrie said that she was unconscious for three weeks and so was not experiencing any discomfort but that is not an end of the matter. An unconscious person may recover substantial damages if the injuries are severe enough.
15. An excellent example of this is the House of Lords decision in Lim Poh Choo v Camden and Islington Area Health Authority [1980] A.C. 174, where the doctor was transformed from a lively active person to a barely sentient individual. One of the grounds of appeal before the House was that the assessment by the trial judge was excessive, given that the victim had not been aware of her injuries and so the suffering, mental and physical, would have been reduced considerably. It was accepted by the House...
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