Rodney (Caswell) v Audrey Binnie Palmer and Norman Spaulding
| Jurisdiction | Jamaica |
| Judge | Mangatal J: |
| Judgment Date | 03 March 2005 |
| Judgment citation (vLex) | [2005] 3 JJC 0303 |
| Court | Supreme Court (Jamaica) |
| Date | 03 March 2005 |
JUDGMENT
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA CIVIL DIVISION
DAMAGES - Motor vehicle accident
1. This case concerns an assessment of damages against the First Defendant. The First Defendant has conceded liability to the Claimant in respect of a motor vehicle accident which occurred on the 26 th March 2003 involving the First Defendant's motor vehicle and the Claimant's motor vehicle. The Claimant sustained injury as a result of the accident.
2. Special damages were agreed in the sum of $79,813.00. The main area of disagreement was as to the appropriate award for general damages in respect of pain and suffering and loss of amenities. The pivotal issue was whether the Claimant had failed in his duty to mitigate, or, in other words, whether the Claimant had taken all reasonable steps to mitigate the loss to himself consequent on the First Defendant's wrongdoing.
3. The Claimant's witness statement dated 16 th February 2005 stood as his examination in chief and he was cross-examined briefly. Two medical reports were admitted in evidence by consent. Exhibit 1 was the medical report from Kingston Public Hospital "K.P.H" 's Department of Orthopaedics dated March 29 2004 Exhibit 2 was the medical report from Dr. Emran Ali, Consultant Orthopaedic Surgeon dated July 19 2004.
4. Since the issues of contention centred on the contents of these medical reports, I have set out the relevant parts of these reports extensively.
5. The medical report from K.P.H., which was under the signature of Resident Dr. Akil Baker, refers to the Claimant as being aged forty-one, and states:
Physical examination and x-rays done on March 28 2003 confirmed the diagnosis (of a fracture to the medial malleolus of the right ankle). Mr. Rodney was well assessed as being a candidate for surgical repair of the fracture and was placed in plaster as temporary management. The patient however declined surgery and as such was managed definitively in plaster for eight weeks with instructions for strict non weight-bearing on the affected ankle.
Mr. Rodney was graduated to partial weight-bearing after eight weeks and full weight bearing after three months.
One year post injury Mr. Rodney has fully recovered, both on physical and x-ray examination; he presently has painless range of motion at the right ankle. Long-term prognosis is good, although development of early arthritis is a definite possibility.
Dr Ali's report states:
This patient was seen... on June 23 2004 for the purpose of medical certification. He gave a history of being involved in a motor vehicle accident.....
On examination the ankle was slightly swollen and tender over the medial aspect of the joint. He has full range of movements at the ankle joint with pain at the extremes of movement. He walks with a slight limp.
X-rays confirmed a healed oblique fracture of the medial malleolus with irregularity of the joint margin.
This patient has reached maximum recovery. X-rays confirm the early onset of osteoarthritis, which in view of his being overweight is causing him pain when walking or driving for long periods. In my opinion he suffers a permanent partial disability of ten percent... of the function of the right lower limb.
6. Both Counsel relied upon the Privy Council decision of Selvanayagam v. University Hospital of the West Indies , reported at(1983) 34 W.I.R. 267, Miss Robinson on behalf of the First Defendant relied upon the decision to say that where physically injured Claimant had refused to undergo surgical management, the burden was on the Claimant to prove that he had in all the circumstances, including but not limited the medical advice, acted reasonably in refusing surgery. Miss Robinson goes on to point out, correctly, that there is nothing in the Claimant's evidence that speaks to the reason why he declined to undergo surgery. There is therefore nothing, she continues, provide the grounds upon which the Court could infer that he acted reasonably in refusing the surgery.
7. At page 272 of the Judgment Lord Scarman, delivering the Board's opinion, stated:
Their Lordships do not doubt that the burden of proving reasonableness was on the appellant (the Claimant). It always is, in a case in which it is suggested that,...
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