Omar Wilson v VGC Holdings Ltd

• Jurisdiction: Jamaica
• Judge: Fraser J.
• Judgment Date: 21 November 2011
• Judgment citation (vLex): [2011] 11 JJC 2101
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2010 HCV 04996
• Date: 21 November 2011

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2010 HCV 04996

BETWEEN

OMAR WILSON

CLAIMANT

AND

VGC HOLDINGS LIMITED

DEFENDANT

Mr. Christopher Honeywell instructed by Christopher O. Honeywell & Co. for the Claimant.

Ms. Audré Reynolds instructed by Bailey Terrelonge Allen for the Defendant.

Assessment of Damages – amputation of right hand below elbow – household helper (pre-hearing and future cost) – loss of earnings – loss of future earnings – handicap on the labour market – whether mechanical or myoelectric prosthesis should be provided – applicability of multiplier/multiplicand approach to calculating various types of awards – appropriate size of different multiplicands/multipliers

Fraser J

INTRODUCTION

1 The claimant Omar Wilson was employed to the defendant company for twelve years as a machine operator. He started working for the company when he was eighteen years old. On August 13, 2010, eleven days after his thirtieth birthday, he suffered a life altering accident on the job. His right hand was severed below the elbow by a cylinder press machine from which he was trying to clear a metal fragment.

2 After the accident the claimant was taken to the Kingston Public Hospital where he remained for approximately three weeks receiving treatment.

3 Arising from this accident the claimant commenced action against the defendant company by Claim Form and Particulars of Claim filed on October 11, 2010. The acknowledgment of service of the claim form filed by the defendant on November 19, 2010, disclosed that service was effected on October 14, 2010.

4 On January 11, 2011 a Defence was filed limited to quantum. On March 2, 2011 pursuant to an application for a speedy assessment trial under rule 17.10 of the Civil Procedure Rules, the matter was set down for hearing on March 29, 2011. When the matter came on for assessment hearing on that day, based on the terms of the Defence filed, counsel for the claimant queried the effect of the Defence. For the avoidance of doubt, counsel for the defendant then indicated that liability was admitted.

5 The claimant sought special damages for medical expenses, loss of earnings, the cost of household help (both pre-hearing and future cost), and the cost of a prosthesis including replacements. General damages were claimed for pain and suffering, loss of future earnings and handicap on the labour market.

6 At the time of submissions it was indicated that the parties had agreed the special damages for medical expenses in the sum of $57,000. This includes $40,000 for medical reports of and consultations with Dr Warren Blake and US $200 for the report provided by Orthotics USA. The claim for $40,000 was supported by receipts dated 18. 3.2011 and 23. 3.2011 (exhibits 1a and 1b). The sum of US $200 was supported by an invoice dated May 13, 2011 (exhibit 4b). The sum of US $200 was converted to JA$17,000 using an exchange rate of 85J$ to 1 US $. General damages for pain and suffering were also agreed at $7.5M.

The Contested Special Damages

The Prosthesis

Myoelectric (MEP) or Mechanical (MP)?

The Evidence

7 The claimant and the defendant are agreed that the claimant should be given an award to enable him to obtain a prosthesis to replace his lost hand. Counsel for the claimant submitted that a MEP should be provided while counsel for the defendant suggested that a MP was more appropriate, given our local circumstances. The court received into evidence three quotations, two from the claimant (one for a MEP and one for a MP), and the other from the defendant for a MP.

8 In urging the court to make an award for a MEP, counsel for the claimant relied heavily on Dr Warren Blake's reports dated February 7, 21, and March 22, 2011, received as exhibits 2a, b and c respectively and on his viva voce evidence.

9 In his first report Dr Blake indicated that as a result of the injury the claimant suffered a whole person impairment of 55%. In his second report he stated that:

• 1. With the disability sustained by the claimant he would be unable to engage in and pursue his usual form of employment. He would also have extreme difficulty if at all able to perform any type of manual labour.

• 2. The application of a prosthetic limb would improve his ability to work but would not restore this ability to normal. It would however have no impact on his percentage permanent disability.

10 His third report outlined that there were two basic types of functional prostheses; body or electric powered. Body powered devices being activated by body movements that initiate movements in cables which either close or open the terminal device and electric powered devices that utilize battery power to open and close. He continued,

Some of the main disadvantages of a body powered device are the more mechanical appearance of these and the difficulty of use that they pose for some people. The battery powered devices on the other hand can be more cosmetic in appearance and tend to provide stronger grip strength. Some of the main disadvantages are the higher initial costs and the higher repair costs. The second generation electric powered devices tend to be lighter than the initial models and tend to be more reliable than the initial ones were. The improved cosmetic appearance and smoother function also makes these devices more acceptable to patients and thus more likely to be used. Both types of prosthesis also come with a variety of terminal devices, namely hooks, prehensors and hands.

11 In his testimony in court Dr. Blake amplified his opinion by noting that the MEP mimics the function of the human hand and upper arm more closely than a MP. This he said was important given that if there is not the human look, there is a tendency for patients to neglect wearing the prosthesis despite the other advantages it brings. He also pointed out that the MEP provides greater grip strength and lifting power which was essential for someone suited to manual type labour.

12 Dr. Blake explained that myoelectric limbs have been in existence for at least 30 years. In the early years they had problems in tropical environments caused by sweat induced corrosion of the electrodes that rest on the skin to pick up muscular impulses. He indicated that this scenario has changed. The other problem from which myoelectric prostheses used to suffer was that the frequency of breakdown was greater than that of cable powered/mechanical prostheses. He stated that over the past 15 – 20 years there have been significant improvements in the electric power devices through the advent of computerisation and the miniaturisation of batteries, which had initially been very heavy and made electric devices heavy relative to mechanical devices. He also spoke of a general enhancement in the reliability of these devices over this 15 – 20 year period.

13 Interestingly the other witness called/reports tendered by the claimant in support of the claim for a prosthesis, recommended that the claimant receive a mechanical one. Ms. Hope Julal, Administrative and Technical Director of Rehab Plus/Jamaica Orthotics Pedorthics & Prosthetics (JOPP) testified that her company, in business for 24 years, provides in house services to the public and private hospital system in respect of orthopaedic devices and appliances. She specialises in orthopaedic devices having been trained in that area. Her company also supplies MPs but not MEPs. Though the mechanical prostheses are manufactured overseas, JOPP does repairs and maintenance on these devices locally.

14 Ms. Julal outlined that the claimant was seen and evaluated at her company on December 17, 2010. This evaluation was done by Gerald Anthony Boyd and recorded in his report dated May 13, 2011, received in evidence as exhibit 4c. In his report Mr. Boyd outlined his qualifications and experience as follows:

I Gerald Anthony Boyd received formal training in Orthotics and Prosthetics in the United States Military from 1977 to 1982 and have retained membership and affiliations with the certifying organizations American Board for Certification in Orthotics Prosthetics and Pedorthics(ABC) and International Board of Certification/Accreditation for both disciplines from my initial certification to the present time. My training subsequent to the military includes Orthopedic Diseases and Appliances…under the tutelage of Orthopedic Surgeons and Specialist Surgeons in the United States of America

Over the past 10 years, I have worked with several hospitals and clinics and am presently President for Orthotics USA with responsibilities for consultations, evaluations, measurements, fabrication, fitting, adjusting as well as follow-up care and repairs for artificial limbs…at several United States hospitals and clinics.

15 Having examined the claimant Mr. Boyd outlined the following recommended management and reasons for his recommendation:

Recommended Management:

A below-elbow mechanical, cable-driven prosthesis with hand options to suit the activities Mr. Wilson stated he would like to be able to carry out. These included driving, farming and playing cricket.

Reason [sic] for recommendation

This prosthesis is a durable, practical and easily maintained prosthesis which is powered by movement of the wearer. It is not impeded by wet, grimy and dusty environments. The design is simple and the learning curve for the wearer is relatively short. The initial cost as well as the maintenance cost is greatly reduced compared to electrically driven prostheses. When viewed in the Jamaican context the benefits of the MP, particularly cost and durability, outweighed those of the MEP. The MEP requires a highly specialized prosthetist trained in this device to be brought into the country several times prior to the final fitting or that the patient travel a number of times to the prosthetist, and that the...