Osbourne (Icilda) v George Barned, Metropolitan Management Transport Holdings Ltd and Owen Clarke

• Jurisdiction: Jamaica
• Judge: SYKES J
• Judgment Date: 17 February 2006
• Judgment citation (vLex): [2006] 2 JJC 1702
• Date: 17 February 2006
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

CLAIM NO. 2005 HCV 294

BETWEEN

ICILDA OSBOURNE

CLAIMANT

AND

GEORGE BARNED FIRST

DEFENDANT

AND

METROPOLITAN MANAGEMENT TRANSPORT HOLDINGS LTD

SECOND DEFENDANT

AND

OWEN CLARKE

THIRD DEFENDANT

Miss Marion Rose-Green instructed by Marion Rose-Green and Company for the claimant

Mr. Maniey Nicholson instructed by Nicholson Phillips for the first defendant

DAMAGES - Assessment of damages - Passenger injuries

1 ASSESSMENT OF DAMAGES, PERSONAL INJURY, LOSS OF EARNING CAPACITY, LOSS OF FUTURE EARNINGS, COST OF FUTURE ASSISTANCE

SYKES J

2 1. The claimant is now 60 years old. She was a practical nurse employed to Hopefield Home for the Aged located at 9 Hopefield Avenue. Her career was cut short because of injuries she suffered while traveling in a bus driven by Mr. Owen Clarke, the third defendant, who was, at the material time, the servant or agent of Metropolitan Management Transport Holding Limited, the second defendant, which owned the bus. Mr. George Barned, the first defendant, owned and drove the other motor vehicle involved in the accident. Judgment was entered against the first defendant alone. This judgment is concerned solely with assessment of damages.

3 2. The accident to which I referred earlier occurred on October 12, 2002. Miss Osborne was sitting in a seat at the front of the bus when it collided with Mr. Barned's vehicle. The accident occurred on Molynes Road. The force of the impact ejected her from the seat and she fell, striking her back, against a bar inside the bus. She also injured her right knee with the result that it became cut and swollen.

4 THE ASSESSMENT

5 3. I should state at the outset that there are broad principles that must be taken into account when assessing personal injury claims. One is that while there ought to be consistency in personal injury awards in a particular jurisdiction, this must not outweigh the fact that the court is not compensating an abstract claimant but the one before the court. I fear that some of the submissions of Mr. Nicholson have not paid sufficient regard to this principle. This is not to say that compensating the particular claimant means that the court ignores similar awards. I am guided by this statement of principle enunciated by Lord Morris in H. West & Sons Ltd v Shephard [1963] 2 All ER 625 at page 633 D – G

The first of these questions may be largely answered if it is remembered that damages are designed to compensate for such results as have actually been caused. If someone has been caused pain then damages to compensate for the enduring of it may be awarded..,. Apart from actual physical pain it may often be that some physical injury causes distress or fear or anxiety. If, for example, injuries include the loss of a leg there may be much physical suffering, there will be the actual loss of the leg (a loss the gravity of which will depend upon the particular circumstances of the particular case) and there may be (depending upon particular circumstances) elements of consequential worry and anxiety. One part of the affliction (again depending upon particular circumstances) may be an inevitable and constant awareness of the deprivations which the loss of the leg entails. These are all matters which judges take into account. In this connection also the length of the period of life during which the deprivations will continue will be a relevant factor (see Rose v. Ford).

6 Lord Devlin spoke in a similar vane at page 636 E

[T]here is compensation for pain and suffering both physical and mental. This is at large. It is compensation for pain and suffering actually experienced.

7 4. The principles derived from these passages are that assessment of damages in personal injury cases has objective and subjective elements which must be taken into account. The actual injury suffered is the objective part of the assessment. The awareness of the claimant and the knowledge that he or she will live with this injury for quite some time is part of the subjective portion of the assessment. In the case before me, Miss Osbourne will be aware of her back injury. As I will expand on later, the doctor says that activities of daily living will aggravate her injury. In short, the injuries suffered and awareness of them, in this case, are life long. For this, she must be compensated. The interaction between the subjective and the objective elements in light of other awards for similar injuries determines the actual award made to a particular claimant before the court. I now turn to an analysis of the evidence.

8 The nature and extent of injuries sustained

9 5. As stated earlier the claimant fell and hit her back on a metal bar in the bus and also cut her knee.

10 Medical report of Dr. Paul Robinson

11 >He reports that he saw the claimant on October 12, 2002 and she was found to be suffering from

• a. whiplash injury;

• b. tenderness to the posterior aspect of the neck; and

• c. painful swelling of the lower back,

12 He prescribed analgesics and muscle relaxants and sent her home for fourteen days. I pause here to observe that there is no evidence that Dr. Robinson was an orthopaedic specialist. It appears that no one realised the seriousness of the injury until much later when Miss Osbourne returned to work.

13 Medical report of Mr. R. C. Rose, Consultant Orthopaedic Surgeon

14 It is convenient that I deaf with a submission made by Mr. Nicholson in relation to the credibility of the claimant. Mr. Nicholson submitted that between October 2002 when the claimant was seen by Dr. Robinson and March 31, 2005 when she was seen by Mr. Rose, there is no evidence that Miss Osbourne was seen by any doctor. This gap, submitted Mr. Nicholson, casts grave doubt on whether the injuries complained of in this assessment were really caused by the accident of October 12, 2002. If, Mr. Nicholson continued, the claimant was really in pain, why didn't she seek medical treatment for over two years? How can we be sure that the injuries flowed directly from the accident?

15 I do not accept this submission. First, the claimant has said that she did not have much money to attend doctors and when she tried the public hospital system the waiting time overwhelmed her and so she left. She added that she was being assisted financially by her son and daughter in law. Being the proud woman that she is she did not wish to become a permanent charge on their generosity so she bore her pain with great stoicism. However, when the pain became even more intense she decided to "take it in hand". Second, the medical examination undertaken by Mr. Rose establishes that there is a causal connection between the injuries and the accident. As Lord Reid indicated in H. West & Sons a brave man who makes light of his disabilities ought not to receive less compensation on account of that (see page 628E).

16 An examination of Mr. Rose's report reveals that he knew that he was examining a patient in 2005 who alleged that the maladies from which she is now suffering arose from an accident in October 2002. The opening paragraph and history recorded from Miss Osbourne makes this clear. Mr. Rose also enquired about her past medical history. Thus based upon the evidence before the doctor he could not be under any mistaken view of what he was being asked to do. He was indeed being asked to say whether there was a causal connection between the injuries and the accident. The doctor carried out a physical examination of the patient which was supported by radiographs. After this the doctor concluded that Miss Osbourne suffered from chronic mechanical lower back pains and chronic cervical strain. I repeat his prognosis verbatim

Ms Osbourne will be plagued by intermittent lower back and neck pains and these will be aggravated by activities of daily living which involves sitting, bending, lifting and sudden movements of the neck.

17 This grim assessment came after he made the diagnoses of chronic mechanical lower back pains and chronic cervical strain.

18 I now quote from the section of the report captioned disability rating

Her permanent partial disability as it related to the lumbosacral spine is five percent of the whole person. The permanent partial percentage disability as it relates to the cervical spine is also five percent of the whole person. Her total partial percentage disability is ten percent of the whole person (sic).

19 I now quote from the report his findings on physical examination.

Examination of the cervjcal spine revealed mild tenderness on palpation of the sternocleidomastoid muscles. The following are the ranges of motion of the cervical spine: extension 20°, forward flexion 25°, right and left lateral rotation 35° bilaterally. The neurovascular status was intact in both upper extremities.

Examination of the lumbo-sacral spine revealed mild tenderness on palpation of the midline of the lower lumbar spine. There was no spasm of the erector spinae muscles. The neurovascular status was intact in both lower extremities. Straight leg raising was 75°bilaterally with onset of lower back pains.

20 The radiographs showed increased lumbar lordosis with mild spondylolistesis at L4 – L5 level. There was also sclerosis of the pedicles bilaterally at the L4 – L5 level. There was sclerosis of the upper part of the body of T12 with anterior body osteophytes.

21 There is nothing in the report that would suggest that the doctor failed to give satisfactory consideration of the causal link between the accident in October 2002 and his examination in May 2005. Mr. Nicholson has not raised the issue of the competence of the doctor and neither has he suggested that the claimant's injuries have come from any other source but the accident. It means then that there is no proper evidential basis for me...