Shaquille Forbes v Ralston Baker and Others

• Jurisdiction: Jamaica
• Judge: FRASER J.
• Judgment Date: 10 March 2011
• Judgment citation (vLex): [2011] 3 JJC 1001
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO: HCV 02938 OF 2006
• Date: 10 March 2011

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO: HCV 02938 OF 2006

BETWEEN

SHAQUILLE FORBES (An infant who sues by his mother and Next Friend, KADINA LEWIS)

CLAIMANT

AND

RALSTON BAKER

1 ^ST DEFENDANT

AND

ANDREW BENNET

2 ^ND DEFENDANT

AND

THE ATTORNEY GENERAL OF JAMAICA

3 ^RD DEFENDANT

Mrs. Nicole Haynes instructed by Kinghorn and Kinghorn for the Claimant. Mrs. Gail Mitchell instructed by the Director of State Proceedings for the 2 ^nd and 3 ^rd Defendants

Assessment of Damages-Personal Injury-Proof of Special Damages

Amendment to Particulars of Claim after close of evidence and submissions, but before judgment

FRASER J

1 These are the reasons for my judgment delivered on March 3, 2011.

The Background to the Claim

2 The claimant Shaquille Forbes who claims by his mother and next friend Kadina Lewis, was born on the 1 ^st day of April 2004. On the 15th day of April 2005 the claimant was traveling to Mandeville in a taxi driven by the 1 ^st defendant when it was involved in an accident with another motor vehicle being driven by the 2 ^nd defendant.

3 When the claim was first filed on August 16, 2006 the particulars averred that the owner of the car driven by the 2 ^nd defendant was one Byron Lewis who was then joined as the 3 ^rd defendant. It was subsequently discovered the 2 ^nd defendant is a police officer and that the car he was driving is owned by the Jamaica Constabulary Force.

4 This discovery led to the amendment of the Claim Form and the Particulars of Claim to remove therefrom the name Byron Lewis and substitute therefor as 3 ^rd defendant, the Attorney General of Jamaica. The amended Claim Form and Particulars of Claim were filed on April 1, 2009. I shall return later to the issue of the amendments to the Particulars of Claim. Errors were made in that process which required, at the prompting of the court, further amendment after all the evidence and submissions were completed, but before judgment.

5 On April 2, 2009 the Attorney General was served with the amended Claim Form and amended Particulars of Claim. On February 4, 2010 pursuant to an Order granting the 3rd defendant leave, the 3 ^rd defendant filed a Defence out of time. The Defence admitted liability and was limited to the quantum of damages.

6 Judgment on admission filed by the claimant on February 18, 2010, was on May 5, 2010 entered into the Judgment Book of the Supreme Court at volume 749 folio 123.

7 The 1 ^st defendant was never served and was not a party to the assessment hearing.

The Accident and its Aftermath

8 The claimant at the time of the accident was sitting on his mother's lap in the back seat of the taxi. They were seated immediately behind the driver, the 1 ^st defendant. As they reached the vicinity of the Tropics View Hotel along the Greenvale main road, the motor car driven by the 2 ^nd defendant was seen travelling towards them in the opposite direction. This motor car made a right turn immediately in front of the taxi which caused the two vehicles to collide.

9 As a result of the collision the claimant who was at the time 1 year and 14 days old, hit his head on one of the metal supports for the driver's headrest and sustained a 6cm laceration to his right forehead.

10 The claimant was taken to the Mandeville Regional Hospital where, as disclosed by the medical report of Dr. Joyce Deterville?Thames, received in evidence as exhibit 7, he was treated by having the injury sutured. The claimant was additionally prescribed the analgesic Cetamol and the antibiotic Amoxil. X?rays of the skull, cervical spine, chest, and right shoulder revealed no fractures. The Outcome/Prognosis was expected to be good.

11 The Claimant was taken to Dr. Ansel Gillman on April 20, 2005 and subsequently. The medical report of Dr Gillman dated August 9, 2010 was received in evidence as exhibit 8 and will be discussed later in the judgment.

The Claim for SPECIAL Damages

12 The claimant initially sought special damages of $54, 000.00 computed as follows:

• a. $12,000 for 6 visits to see Dr. Gillman at $2000 per visit. This claim was supported by receipts tendered and admitted in evidence as exhibits 1-6 and dated respectively 17/1/08; 10/02/08; 04/08/08; 28/08/08; 05/09/08 and 10/09/08. (The claim under this head was reduced to $6,000 when counsel for the claimant sought amendments to the Particulars of Claim).

• b. $36,000 for taxi costs for 6 trips to see Dr. Gillman at $6000 per trip. No receipts were tendered in support of this claim.

• c. $6,000 paid in the amounts of $1,500 per week for 4 weeks as payment to Ms. Merline Forbes, the claimant's paternal aunt who provided care for the claimant in the absence of Ms. Kadina Lewis, the claimant's mother. No receipts were tendered in support of this claim.

13 On the question of special damages counsel for the claimant submitted that the sums claimed were proven by the receipts and the evidence of the claimant's mother and were reasonable.

14 Counsel for the defendants countered that the receipts for the visits to the doctor could not be in relation to the accident and that the sum of $12,000, (later reduced to $6,000), should be disallowed. She based this submission on the fact that during cross examination the claimant's mother, Ms. Kadina Lewis, indicated that she had taken the claimant to the doctor on dates in 2005 and 2006 but that she didn't have receipts for those visits. The timing of those visits was buttressed by the evidence elicited in re?examination that the trips to the doctor were at a time when she herself was still suffering the ill effects of the accident and had swollen knees. The receipts which were tendered were however all for dates in 2008, three years after the incident, visits on which dates counsel for the claimant submitted were not proven to be in relation to the accident.

15 The medical report of Dr Gillman dated August 9, 2010 is actually quite instructive on the matter. The report under the heading ‘Complaint’ indicates that ‘I saw this 6 year old male patient on April 20th 2005 for the purpose of this medical report. He was complaining of headache and pain to the right forehead’ (italics mine). Tellingly, in that report the doctor only speaks to one other occasion on which he saw the claimant; stating under the heading ‘Investigations’, ‘He visited office one month later when an approximate six cm, scar was seen on his right forehead.’

16 I however accept the evidence of Ms. Lewis that she took the claimant to Dr. Gillman after the accident during 2005 and 2006; evidence which was not challenged but relied on by counsel for the defendants. Ms. Lewis further testified that she took the claimant to Dr. Gillman from 2005 right through to 2008 for checkups after the accident and that she took him to Dr. Gillman in 2008 for headaches. However, given the nature of Dr. Gillman's report in which he references only the visit of April 20, 2005 and a follow up visit one month later, there is no support for the contention that the visits in 2008 were in relation to the after effects of the unfortunate accident. Therefore while it is common ground that there were about six trips to Dr. Gillman in 2005-2006 as a consequence of the accident, no proof of the costs of these office visits during that period has been adduced. The claim for $12,000 for this item, (subsequently reduced to $6,000 as discussed later), is therefore disallowed.

17 In relation to the damages claimed for the taxi trips to Dr. Gillman, counsel for the defendants cited the well established principle in Lawford Murphy v. Luther Mills (1976) 14 JLR 119 at page 121H. There Hercules J.A. cited with approval the dictum of Lord Goddard C.J. in the case of Bonham-Carter v. Hyde Park Hotel Limited (3) (1948) 64 T.L.R. at page 178 where the Learned Chief Justice said,

‘On the question of damages I am left in an extremely unsatisfactory position. Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the Court, saying: “This is what I have lost; I ask you to give me these damages.’ They have to prove it.’

18 Counsel for the defendants however also recognised that this strict principle has been tempered in some respects and cited the case of Grant v. Motilal Moonan Ltd and Another (1988) 43 WIR 372, a case from the Court of Appeal of Trinidad and Tobago. In that case a car driven by the second respondent and owned by the first respondent crashed into the house of the appellant damaging several articles. The special damages were particularised in the pleadings. No appearance was entered nor defence filed by the respondents. The appellant obtained judgment in default. At the assessment hearing before the Master the appellant produced a list of the articles damaged and the prices she had assigned for each. She had no receipts, could not state when they had been purchased and admitted they had not been valued by a valuator. The respondents did not challenge the prices, but submitted there needed to be strict proof of the values. The Master held that the value had not been so proved and awarded and ‘ex gratia’ payment of $6,000. On appeal to the Court of Appeal it was held allowing the appeal, that although special damages must be pleaded, particularised and proved strictly, the appellant had prima facie established the cost of the articles. As the respondents had not attempted to challenge the values placed on them the only courses of action properly open to the Master were to accept the appellant's claim in full or to apply her mind judicially to each item and its value; as the values were not unreasonable, the claim of $22,044 for special damage would be allowed in full.

19 While the case of Grant cited by counsel is persuasive authority there is binding authority from the...