Tennielle Tucker v Daniel Lattibeaudiere

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Tracey-Ann Johnson, J
• Judgment Date: 15 November 2024
• Year: 2024
• Docket Number: CLAIM NO. SU2021CV00638

Between

Tennielle Tucker

Claimant

and

Daniel Lattibeaudiere

Defendant

[2024] JMSC Civ. 189

CLAIM NO. SU2021CV00638

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

Assessment of Damages — Special Damages — General Damages — Pain and Suffering and Loss of Amenities

Miss Khadine Dixon instructed by Dixon and Associates for the Claimant

Defendant absent and unrepresented

IN OPEN COURT

Tracey-Ann Johnson, J (AG.)

THE CLAIM

1 The Claimant, Tennielle Tucker, filed a claim against the Defendant, Daniel Lattibeaudiere on February 19, 2021 seeking to recover damages for injuries she sustained as a result of an accident which occurred on or about the 23 ^rd day of February 2015. The Claimant alleged that she was a passenger in a motor vehicle travelling along Old Harbour Main Road in the parish of St. Catherine. The Defendant, who was the owner and driver of motor vehicle bearing registration number 9697GM, failed to maintain sufficient distance and control over the motor vehicle. As a result, he collided with the right driver side of the motor vehicle in which she was travelling, bearing registration number 0071GD.

2 Having been served with the Claim Form and Particulars of Claim, the Defendant failed to file an Acknowledgement of Service and Defence to the claim. Therefore, an Interlocutory Judgment was entered against the said Defendant on January 3, 2023. The matter now comes up for assessment of damages and the Defendant is absent and unrepresented.

ISSUE

3 What is the quantum of damages to be awarded to the Claimant for the injuries suffered and consequential losses as a result of the Defendant's negligence?

THE CLAIM FOR SPECIAL DAMAGES

4 In relation to special damages claimed, details of the Claimant's Special Damages are set out in the Amended Particulars of Claim filed on December 8, 2023 as follows:

PARTICULARS OF SPECIAL DAMAGES

(i)	Medical Reports	$115,000.00
(ii)	X-Rays and MRI	$ 53,250.00
(iii)	Doctor Visits	$ 22,600.00
(iv)	Medication	$180,043.77
(v)	Transportation	$ 50,000.00
		$420,893.77

5 The Claimant's evidence as contained in her Witness Statement filed on July 12, 2024 is that she received a medical report from Medical Associates Hospital & Medical Centre dated April 11, 2019 and that the cost of this report was Twenty Thousand Dollars ($20,000.00). The total cost of the X-rays she received at the Medical Associates & Medical Centre was Fifteen Thousand Two Hundred and Fifty Dollars ($15,250.00). The total cost of the MRI scan she received at the said hospital was Thirty-Eight Thousand Dollars ($38,000.00). She was examined by Dr. Akshai Mansingh who prepared a medical report and the cost of that report was Fifteen Thousand Dollars ($15,000.00). She did a consultation with Dr. Ian Neil which cost One Thousand Dollars ($1,000.00). She also went to Dr. Michael Harvey, Jr., a Chiropractor and the cost of the treatment was Five Thousand Five Hundred Dollars ($5,500.00).

6 She was also treated by Dr. Ballin, a Consultant in Anaesthetics, Critical Care & Pain Management who recommended that she take Yoga classes and join a weight loss programme. She joined the gym at Eden Gardens in St. Andrew. The cost of the gym membership was Four Thousand Dollars ($4,000.00). The cost of the medical report dated October 19, 2017 was Seventy Thousand Dollars ($70,000.00) and the cost of the medical report dated January 21, 2019 was Ten Thousand Dollars ($10,000.00). The total cost of medications and treatment was One Hundred and eighty Thousand Dollars and Seventy-Seven Cents ($180,043.77)

7 The receipts evidencing these expenses and payments were tendered and admitted into evidence as follows:

• i. Receipt for Medical Report dated April 3, 2019 in the sum of $20,000.00 – Exhibit 6.

• ii. Receipt for Medical Report from Dr. Mansingh dated May 30, 2016 in the sum of $15,000.00 – Exhibit 7;

• iii. Receipt of Dr. Neville Ballin dated January 13, 2017 in the amount of $10,000.00 – Exhibit 8.

• iv. Receipt prepared by Dr. Neville Ballin dated February 12, 2018 in the amount of $70,000.00 – Exhibit 9.

• v. Receipt from Medical MRI services dated October 12, 2015 in the sum of $38,000.00 – Exhibit 10.

• vi. Receipt from Dr. Ian Neil dated July 11, 2016 in the sum of $1,000.00 – Exhibit 11.

• vii. Receipt from Dr. Michael Harvey dated May 30, 2017 in the sum of $5,500.00 — Exhibit 12.

• viii. Receipt dated May 30, 2017 from Eden Gardens in the sum of $4,000.00 for gym membership – Exhibit 13.

• ix. Receipts from West Bay Pharmacy in Portmore for Medications:

  • a) Receipt dated February 14, 2017 in the sum of $3,693.36 – Exhibit 14 (a);

  • b) Receipt dated July 20, 2016 in the sum of $3,878.00 – Exhibit 14(b);

  • c) Receipt dated August 3, 2016 in the sum of $4,878.00 – Exhibit 14(c);

  • d) Receipt dated August 14, 2016 in the sum of $3,575.00 – Exhibit 14(d);

  • e) Receipt dated February 4, 2017 in the sum of $5,821.36 – Exhibit 14(e);

  • f) Receipt dated March 12, 2017 in the sum of $2,890.00 – Exhibit (f);

  • g) Receipt dated April 6, 2017 in the sum of $8557.44 – Exhibit 14(g);

  • h) Receipt dated august 11, 2017 in the sum of $8,101.20 – Exhibit 14(h);

  • i) Receipt dated September 21, 2017 in the sum of $6,847.36 – Exhibit 14(i); and

  • j) Receipt dated September 21, 2017 in the sum of $1,492.36 – Exhibit 14(j).

• x. Receipts from Vineyard Town Family Pharmacy for Medications:

  • a) Receipt dated July 14, 2016 in the sum of $2,183.62 – Exhibit 15(a);

  • b) Receipt dated October 26, 2017 in the sum of $14,868.44 – Exhibit 15(b);

  • c) Receipt dated November 13, 2017 in the sum of $7,634.22 – Exhibit 15(c); and

  • d) Receipt dated November 22, 2017 in the sum of $15,063.02 – Exhibit 15(d).

• xi. Receipts from York Pharmacy for Medications:

  • a) Receipt dated May 21, 2015 in the sum of $5,956.69 – Exhibit 16(a);

  • b) Receipt dated November 28, 2015 in the sum of $3,657.00 – Exhibit 16(b); and

  • c) Receipt dated February 11, 2016 in the sum of $10,171.00 – Exhibit 16(c).

• xii. Receipts from ValuDrug Pharmacy for Medications:

  • a) Receipt dated December 2, 2015 in the sum of $3,640.23 – Exhibit 17(a); and

  • b) Receipt dated December 2, 2015 in the sum of $1,774.75 – Exhibit 17(b).

• xiii. Receipts from Everybody's Pharmacy for Medications:

  • a) Receipt dated August 8, 2018 in the sum of $3,308.42 – Exhibit 18(a); and

  • b) Receipt dated August 8, 2016 in the sum of $7,487.00 – Exhibit 18(b).

• xiv. Receipt from Clock Tower Pharmacy dated May 21, 2018 in the sum of $1,242.00 – Exhibit 19.

• xv. Receipt from Island Pharmacy dated February 25, 2015 in the amount of $3,743.01 – Exhibit 20.

• xvi. Receipt from Total Care Pharmacy dated March 25, 2015 in the sum of $2,756.67 – Exhibit 21.

• xvii. Receipt from Ashbiz Pharmacy dated October 18, 2016 in the sum of $3,273.88 – Exhibit 22.

Submissions on Behalf of the Claimant

8 Counsel for the Claimant asked the Court to consider the case of Owen Thomas v. Constable Foster & The Attorney General of Jamaica Claim No. CL T 095 of 1999 where Sykes J (as he then was) at paragraphs 16 and 17 of the judgment allowed a claim for transportation without strict proof of same and stated that the relaxation of strict proof for special damages in some circumstances is permissible. Mr. Thomas had incurred the expense during the period of incapacity and, therefore, Sykes J (as he then was) stated that it is “well known in Jamaica that many of our transport operators do not provide receipts to passengers and the cost seems reasonable”. Similarly, there is evidence that the Claimant sought medical treatment some distance from her home on several occasions, as noted in her medical report and as such, she submitted that the total sum of Fifty Thousand Dollars ($50,000.00) as pleaded, should be allowed.

9 Counsel for the Claimant also referred the Court to the case of Ackelie Burrell v. Raymond McLeod [2021] JMSC Civ 74 at paragraphs [35] to [44] of the judgment where Thomas J stated that any payments made by the Claimant through insurance or a third party should be part of the Claimant's claim for special damages. She indicated that the learned Judge further stated that insurance premiums would have been paid by the Claimant as an expense to the Claimant and as such, there is no legal justification for allowing the Defendant to take advantage of payments made on behalf of the Claimant whether by his insurers of another third party (see paragraph [39] of the judgment).

The Court's Position

10 It is trite law that special damages must be specifically pleaded and proved (see Bonham-Carter v Hyde Park Hotel 64 LTR 177, Ratcliffe v Evans (1892) 2 QB 524 per Bowen LJ and Akbar Limited v. Citibank NA [2014] JMCA Civ 43 at para. [61]). In the case of Julius Roy v Audrey Jolly [2012] JMCA Civ 53, Harris JA stated at paragraph [38] of the judgment that this is not an inflexible principle. She further pointed out that:

“Although specific proof is required for special damages, there may be situations, depending on the circumstances of the case, which accommodate the relaxation of the principle. In some cases, the incurring of some expenditure may not be readily capable of strict proof. As a consequence, the court may assign to itself the task of determining whether strict proof is an absolute prerequisite in the making of an award…. In its endeavour to arrive at a reasonable conclusion, the court seeks to satisfy the demands of justice by looking at the circumstances of the particular case: see Ashcroft v Curtin. Therefore, to demand strict adherence to the principle laid down in Bonham-Carter may cause some injustice to a claimant who had legitimately suffered damage.”

11 In the case of Akbar Limited v Citibank NA, Phillips JA stated at paragraph [61] of the judgment that:

“… the requirement that special damages must be specifically pleaded and strictly...