Thomas v Arscott et Al

CourtCourt of Appeal
JudgeCarey, J.A.
Judgment Date05 May 1986
Neutral CitationJM 1986 CA 31
Docket NumberCivil Appeal No. 74 of 1984
Date05 May 1986

Court of Appeal

Rowe, P., Carey, J.A.; Ross, J.A

Civil Appeal No. 74 of 1984

Arscott et al

Ainsworth Campbell for the plaintiff/appellant

Ronald Williams, Q.C., and Charles Piper for defendants/respondents

Damages - Personal injuries — Appeal against quantum of damages awarded for personal injuries case — Appellant claims quantum awarded not sufficient — Award not disturbed.


Vanderpump J. assessed damages in favour of the appellant at $82,296.00 being $12,296.00 special damages and $70,000.00 general damages. More particularly, he awarded $40,000 for pain and suffering and $30,000 for loss of future earnings. The appellant who was injured on November 18, 1982 when a motor car struck him off his motor cycle, being dissatisfied with the award which he labelled as inordinately low, seeks to move the court to increase the damages to within the region of $180,000. No one seemed to have been satisfied with the award as the respondents also filed a respondent's notice complaining that the award of general damages, part of the special damages and the rate of interest, were excessive.


Dr. Dundas an orthopaedic surgeon at the Kingston Public Hospital examined and treated the appellant for his injury and he gave the medical evidence upon which the parties relied. Dr. Dundas said that the appellant suffered a serious injury, and was not malingering and Vanderpump J. was not prepared to treat the injury as a mere “bad leg” case, as was suggested by Mr. Williams, whatever that term might be interpreted to mean.


Particulars of injuries as contained in the amended statement of claims were somewhat more extensive than the evidence in proof thereof. Dr. Dundas found the appellant suffering from a 6” long 4” deep wound to the right thigh extending 3” above the knee going proximally to the hip joint in the direction of the heart upwards. The femur or thigh bone, protruded through that wound. There was no loss of circulation beyond the wound. However, due to the sever blood loss, the appellant had two units of blood transfused on November 26, 1982 from which he developed a reaction. The fracture extended to the knee joint and was described as a comminuted circular fracture. There were little fragments of bone in the wound which was contaminated and dirty. After X-rays the appellant was taken to the operating room but unfortunately the surgeon who performed the operation was not called as a witness nor were his notes admitted in evidence. A skeletal traction was applied to the injured limb on November 20 which immobilized the appellant in bed until January 24, 1983, although the traction was removed three days earlier, i.e. on January 21. During the period of his immobilizations the appellant developed a chest infection which spread from the contaminated wound. Early treatment in hospital consisted of the administering of antibiotics anal anti-tetanus drugs. Further antibiotics were prescribed to combat the infection together with physiotherapy. On January 24, 1983, the appellant was discharged from the K.P.H. to the Lionel Town hospital for regular dressings. Thereafter he continued as an out-patient of the K.P.H.


On February 26, 1983, the plaster-of-Paris cast, which presumably had been fitted during the original operation, was removed. The appellant had several X-rays as an outpatient, the last of them being in October 1983 which showed that the large segment of bone projecting from the wound was dead, but had not separated enough for safe removal. At the time of trial that dead bone had not been removed, as in the opinion of the doctor there was insufficient sub-stratum bone around it to permit safe removal.


As a result of the injury the muscles in the thigh have become somewhat stuck, i.e. tethered, to the fracture area and that has left the appellant with a lag of 20°. He cannot voluntarily stretch his knee completely nor can he flex his knee. His range is 20°–40° whereas the normal range is 0°–150°: depending on the build of the person. This lack of knee movement incapacitates the appellant from using public transportation.


When the plaster-of-Paris cast was removed on February 26, 1983, it was discovered that there was oozing from the original wound. - On February 7, 1984, when Dr. Dundas last examined the appellant, the wound was still oozing and still required dressing. This oozing was a reflection of the body's reaction to the dead fragment of bone. The appellant said in evidence that up to June 15, 1984, the right leg was “oozing infection” yellow substance. Which smells bad “bad smell” and required daily dressing. Dr. Dundas said that there, was no absolute guarantee that if the dead bone was removed the oozing would cease and that the appellant ran a 30% risk of recurrent infection even after the removal of the dead bone.


Dr. Dundas explained that the body builds a scaffold around a fracture site as new bone is formed. When he gave his evidence on February 22, 1984, it was his rough guess that by the end of April or in May 1984, it would be safe to perform the remedial surgery. Indeed the appellant said he was scheduled for the operation on May 17, 1984, but it had been cancelled. He had been re-hospitalized before June 15, 1984, and on leaving court on that day he would return to hospital in the hope that the operation could then be performed. Although of a remedial nature, Dr. Dundas said that the projected operations, two at the maximum, were major procedures requiring hospitalization of a week to ten days on each occasion. He did not, however, rule out the possibility that one operation only could be necessary, but an operation there would have to be, as the appellant then had a 100% disability in the right lower limb.


Measuring the disability of the appellant consequent upon his injury was an important issue at trial. Dr. Dundas began from the standpoint that there was then a 100% disability of the leg as related to the occupation of the appellant. In relation to him as a person there was a 65%–70% disability of the right leg, and Dr. Dundas in giving this opinion satisfied the court that it was a measured range and not the product of guess-work. The leg was to be operated on. If the operation was a total success in every respect the disability would be reduced from 65% to 10% of the whole leg which would represent only the shortening of the leg which was then 3/4” and could not be improved by the surgery. The shortening was as a result of the displacement of the bone at the time of the fracture. If successful there could be ability to bend the knee 90° and the bone could be healed without any signs of persistent inflammation there. But the doctor was of opinion that the probability was, that the appellant would end up with a 50% functional loss of the leg for the following reasons. The fracture extended into the knee joint which predisposed to permanent restriction of motion at the knee and also to the high problem of arthritic degeneration in the joint at a later date, say 5–7 years. When the bone came through, it cut through some of the muscles. They were then scarred and not as elastic as normal tissue and were, somewhat stuck to the fracture area. The doctor hoped to overcome by surgery the release of the tendons from tethering but even if this was achieved the lack of elasticity and their scarring would compromise the pliability of those muscles. On the probabilities at best the appellant could end up with a 20% disability of the affected limb. At worst, he could end up with a stiff knee permanently and permanent infection of the bone for life amounting to a 75% functional loss of that limb.


At page 22 of the record, the learned trial judge, after having set out in extenso the evidence of Dr. Dundas, said he did not regard the instant case as a mere “bad leg” case and then went on to say:

“Doctor said the probabilities were that he would end up with 50% functional loss of that limb. Crux was tethered muscles and the fracture extending into the knee joint causing restriction of movement, pre-disposing to permanent restriction of motion at the knee to a high probability of arthritic degeneration in the joint at a latex date; Also 3/4” shortening due to displacement at the time of fracture. So Plaintiff could end up with a permanent stiff knee. This would militate against his earning a living.”


The inference to be drawn from the passage quoted above is that the learned trial judge accepted the evidence of Dr. Dundas as to the 50% permanent functional disability of the appellant's right leg, and the probability that he would end up with a stiff knee. Neither counsel addressed any arguments in complaint against these findings of fact and the assessment must be governed by these findings.


The appellant gave evidence that he suffered pain from the time of the accident and up to when he was giving evidence. If he sits at one place for too long a time, he said his leg would stiffen up and hurt, but he did not feel pain at other times. Dr. Dundas agreed that from time to time the appellant would have pains which could be controlled by medication. One result of the adverse reaction to the blood transfusion was very severe itching all over the body and bumps on his face and shoulders.


Prior to the accident the appellant was an athlete who had won a gold medal for the 800 metres and a silver medal for the 1600 metres. He was an avid footballer. He was in active training for the 1983 factory finals at the Clarendon sugar Company. For him there will be no further participation in sports and the effect is that he feels left out. The appellant found it difficult to climb stairs and cannot walk for any extended period without rest.


In November 1982, the appellant was a second class machinist earning an average of $117.00 per week. Due to his physical...

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