Schoburgh, Vincent v Michael Fletcher & Robert Fletcher

• Jurisdiction: Jamaica
• Judge: Sykes J (Ag)
• Judgment Date: 23 September 2004
• Judgment citation (vLex): [2004] 9 JJC 2301
• Court: Supreme Court (Jamaica)
• Date: 23 September 2004

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. CL 2001/S-124

BETWEEN

VINCENT SCHOBURGH

CLAIMANT

AND

MICHAEL FLETCHER

FIRST DEFENDANT

AND

ROBERT FLETCHER

SECOND DEFENDANT

Mr. Norman Samuels for claimant

No appearance for defendants and defendants not appearing

DAMAGES - Personal injuries - Pain, suffering and loss of amenity - Loss of earning capacity - Loss of future earnings - Special damages

Sykes J (Ag)

1 ASSESSMENT OF DAMAGES: PERSONAL INJURY

2 Mr. Vincent Schoburgh, the claimant, was struck from his bicycle while he was riding along the Long Road main road in the picturesque parish of Portland. He does not recall much more other than that he woke up in the Port Antonio Public General Hospital. He was hit down on January 27, 1996.

3 The sole issue here is quantum of damages, judgment having been entered against both defendants.

4 It is appropriate to point out at this stage that I have relied to some extent on the testimony of Miss Desrine McKenzie, sister of the claimant She gives more detail about her brother's earnings, life before the accident and current disability. The reason is that the claimant does not now seem to have a clear recollection of much of the events surrounding the accident or even life beyond the accident. For example he cannot recall how much he earned from the National Water Commission. He does not recall purchasing any medication yet his sister has testified that she purchased drugs for him. Dr. Dundas' report, set out below, bears out the claimant's apparent lack of memory.

5 A. The nature of the injuries sustained

6 He injured his back, side and hand. He also suffered internal injuries.

7 Five medical reports were put in evidence. The first is from Dr. M Yee Sing from the hospital in Port Antonio, Portland. The second is from Dr. Nyi Nyi Than from the Kingston Public Hospital (KPH), the third from Mr. K Williams from the Department of Surgery at KPH the fourth was from Dr. Paul Scott and the fifth was from Dr. Grantel Dundas.

8 Dr. Yee Sing's report dated March 15, 2001

9 Dr. Yee Sing's report covers the claimant's initial hospitalisation at the Port Antonio Hospital and his further hospitalisation after he was discharged from KPH. She reports

• (a) tenderness in the lower abdomen. Guarding and rebound tenderness;

• (b) tenderness on the springing pelvis and a haemotaoma in the suprapubic area;

• (c) tenderness on the moving left hip and tenderness over sternum and neck;

• (d) laceration to the left leg which was swollen in the distal 1/3;

• (e) bruises to the right elbow and forehead;

• (f) intra-abdominal injury, fractured pelvis and soft tissue injury to neck and lower left leg;

• (g) rectal examination initially was negative but later examination showed rectum was blood stained and offensive;

• (h) he was diagnosed as having intra abdominal injury, fractured pelvis, soft tissue injury to neck and lower (L) leg;

• (i) the pelvic fracture was confirmed by x rays done at KPH

10 Dr. Nyi Nyi Than's report dated April 3, 2001

11 This doctor saw the claimant in 1996. His report shows:

• (a) tenderness over anterior chest;

• (b) abdomen was mildly distended with tenderness over the supra pubic area with crepitation over the right flank and upper right quadrant;

• (c) tenderness over the pelvic bone;

• (d) x ray showed marked diathesis of pubic symphysis and diasthesis (sic) of the right sacroiliac joint;

• (e) an exploratory laparotomy was done and a pelvic haemotoma was found. An external fixation was placed on the pelvis.

12 Mr. K. Williams' report dated June 1, 2001

• (a) on admission to KPH on January 31, 1996 the claimant had a temperature of 102.4F;

• (b) mildly distended abdomen with marked tenderness and guarding over the right lower quadrant and over the symphysis pubis;

• (c) large laceration in the anal/rectal area;

• (d) at surgery the surgeons found a very large retroperitoneal haematoma that filled the whole pelvis and extended up the anterior abdominal wall. A loop colostomy was done;

• (e) began hallucinating on February 4, 1996. He was rehydrated and restrained. By February 9, 1996 he as lucid and coherent in time, place and person;

• (f) he developed severe hypertension, acute pulmonary oedema, heart failure and acute renal failure;

• (g) he developed a clot in his left common femoral vein and was treated with anticoagulant;

• (h) there was an upper gastrointestinal bleeding;

• (i) he was eventually discharged on April 19, 1996 and at the time of his discharge he walked with much difficulty.

13 Dr. Paul Scott's report dated June 30, 2002

14 Dr. Scott is a pulmonologist. He saw the claimant on May 4, 2002. The report contains one inaccuracy. It states that the accident occurred in 2001 but the evidence is that it took place in 1996.

15 Apparently the reason why the claimant saw Dr. Scott was because he complained of chest pains associated with dyspnoea. After examining him and taking his blood pressure the doctor concluded that the claimant had uncontrolled hypertension, hypertensive heart disease, incipient cardiac failure and ischaemic heart disease.

16 A chest x ray done at Eureka Medical Ltd on May 4, 2002 showed that Mr. Schoburgh had an enlarged heart. Also the claimant had a history of smoking. He stopped smoking in 1991. The report of Dr. Williams suggests some link between the development of heart disease and the accident. However it is not clear what is meant when he said that the claimant developed "severe hypertension, acute pulmonary oedema, heart failure and acute renal failure". Is he saying that these conditions developed while Mr. Schoburgh was in the hospital or is he saying that the injuries precipitated these complications? The evidence is not clear and in accordance with the burden of proof I will not take these conditions into account.

17 Dr. Grantel Dundas' report dated August 2, 2001

18 Dr. Dundas saw Mr. Schoburgh on August 23, 2001. This was five years after the accident. He noted that

• (a) there was a 23cm midline scar extending from the epigastrium to the pubic area;

• (b) multiple punctate scars over both iliac crests. These were the places where an external fixator was used to re-approximate his pelvis;

• (c) an 11cm scar which was the sight of his colostomy;

• (d) no palpable asymmetry of the pelvis;

• (e) there was a 2cm of deficit in the right thigh circumference and calf circumference with a negative Hohman's signs;

• (f) straight leg raising was restricted to 75 degrees bilateral and a Lasegue Test was negative bilaterally;

• (g) reflexes were normal;

• (h) power in the Extensor Digitorum longus on the right was a grade four on a scale of 0 - V;

• (i) radiographs or x rays showed

  • i. fracture of the left ischial tuberosity was fractured and healed with mild misalignment;

  • ii. 2cm diastasis of the pubic symphysis;

• (j) lumbar spinal alignment was satisfactory but there was marked sclerosis of the L4/5 pedicles. This indicated that possibility of a healed fracture of the pars interarticularis at L/5;

• (k) left hemi sacralization of the fifth lumber vertebra.

19 Dr. Dundas'...