Veronica Irving v Brian Rowe and Another
| Jurisdiction | Jamaica |
| Judge | Morrison, J |
| Judgment Date | 08 November 2013 |
| Neutral Citation | [2013] JMSC Civ 168 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2006 HCV 03177 |
| Date | 08 November 2013 |
[2013] JMSC Civ. 168
SUPREME COURT LIBRARY KING STREET KINGSTON, JAMAICA
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Morrison, J
CLAIM NO. 2006 HCV 03177
and
Miss C. Hudson instructed by K. Churchill Neita & Co. for the Claimant
Mrs. K. Sewell and Miss M. Reid instructed by Nunes, Scholefield, DeLeon & Co. for the Defendants
Assessment of Damages — Medical Injuries — Nexus between accident and injury — Expert Witnesses — Conflict on findings — How resolved
I will not attempt to hide under cover of an excuse for the late delivery of this judgment. At the date of this judgment, despite reminders, I am yet to receive further submissions so earnestly insisted upon as being necessary for the completion of the presentation of the written submissions. Significant time has since passed, I too have been overly remiss. For that I offer my sincere apology.
‘It is common for Judges to have to decide between conflicting expert evidence. When this happens the duty of the judge is to make findings of fact and resolve the conflict’: Sewell v. Electrolux Ltd. (1997) The Times, 7th January, 1997.
The divergent medical opinions that have been engendered in the case at bar are not irresolvable.
The critical question, raised to its zenith, is whether the diagnostic finding that the Claimant is afflicted by multi-level disc disease in the cervical spine is attributable to the vehicular accident in which she was injured on the 8 th January, 2006.
Tersely put, the claim is for injuries sustained as a result of the first and second Defendants' acknowledgment (at the time of assessment) that their vehicle had rear-ended the vehicle in which the Claimant was a passenger.
The particulars of injuries that the Defendants had to meet were itemized in the Claimant's second, Further Amended Particulars of Claim, filed on May 28, 2008. They are –
The prognosis as pleaded speaks to the Claimant being likely to have intermittent flares of axial pain in the neck and back due to whiplash.
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(1) whiplash injury;
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(2) painful movement in the neck, right shoulder, posterior chest and lower back;
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(3) persistent neck and lower back pain;
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(4) limitation of motion in neck to due to pain;
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(5) pain in neck and upper back accompanied by muscle guarding spasm;
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(6) 8% whole person disability.
The defence of the first and second Defendants was filed on November 15, 2006. At paragraph 7 the Defendants say, “they do not admit the particulars of injury and damages as alleged … and require that the Claimant provide strict proof of her injuries, damages and loss.”
Permit me to re-trace the events that has led to the present disagreement. Ms. Veronica Irving a District Constable and a quinquagenarian in 2006 was on the 8th January of that year, a passenger in a motor vehicle registered PC 1167 as it travelled along Greenwood Road, St. Catherine when by reason of the acknowledged negligent driving of motor vehicle registered 8901 CC the latter collided with the rear of the former resulting in injuries to the Claimant's person. Chronologically, the Claimant was obliged, because of her injuries, to seek out medical services and expert opinions which produced various reports that are contained in Exhibit 1, 2A, 2B, 2C, 3A, 3B, 3C, 4A and 4B.
The Claimant saw one Dr. Joan Chung on the day following the accident. Dr. Chung's report speaks to the Claimant's narration to her of painful movements of the neck, pain in the right shoulder, posterior chest and low back pain. In consequence, Dr. Chung prescribed a course of analgesics and muscle relaxants. So far unremarkable.
The Claimant's next medical encounter was with Dr. Mark Minott, Consultant Orthopaedic Surgeon. This was on 7th February, 2006 and was on the recommendation of Dr. Chung. The generated report is dated December 4, 2006 (Exhibit 2A). In it Dr. Minott says “her neck was extremely tender with little or no movement in any plane of the neck. There was no sensory or motor deficits in her upper limbs.” He diagnosed the Claimant as having suffered a severe whiplash injury, hence, “She was given a new prescription for analgesia, prescribe a soft collar to be worn during her periods of transportation in a car and to obtain physiotherapy to the neck.”
On March 8, 2006 the Claimant returned to Dr. Minott for evaluation and complained of neck pains. According to Dr. Minott, the Claimant was not able to do the recommended physiotherapy due to her state of penury.
He was to see her again on April 5, 2006 on her follow up visit. “She was indeed much better with her neck pain and the range of motion in her neck. The pain in the hands was now resolved.” However, rejoins Dr. Minott, his patient “still had pain at the limits of her range of motion.” Again, physiotherapy, among other recommendations, was advised.
On May 10, 2006 she reported to Dr. Minott that in spite of physiotherapeutical intervention she “had severe pain in her neck to her lower back. She had not taken any analgesic for one week and on physical examination there was a poor range of motion in her neck.” Continuing, Dr. Minott says that, by June 20, 2006, though there was some improvement his patient still had significant pain with reduction of range of motion in her cervical spine.
From July 18, 2006 through to September 27, 2006 to November 1, 2006 the essence of Dr. Minott's findings related to the range of motion in her neck with tenderness to her paraspinal muscles, pain in the neck and mid-back region, poor range of motion in her thoracic lumbar and lumbar sacral spine. She was diagnosed as having fibromyalgia in her neck and back and, significantly, as not having radiculopathy: “the deep changes to the state of the nerves caused by disorder usually in the canal where the nerves make its exit from the spinal cord.” (according to Dr. Minott))
From Dr. Minott's report of January 10, 2008 he gave in respect of the Claimant a permanent impairment rating of 8% of the whole person based on his opinion that, ‘she is likely to have intermittent flares of axial pain in her neck and upper back’ owing to the whiplash injury. However, Dr. Minott revised downwards, his December 1, 2008 report in respect of the Claimant's whole person impairment to 3% it being a cervical strain with permanent impairment of 1% and thoracic spine permanent impairment of 2%.
Hence these tears: The Defendants are aghast at the permanent impairment rating assigned by Dr. Minott and moreso as we shall later see, that of Dr. Dundas. Enter the records of Dr. Konrad A.R. Lawson, registered medical practitioner with the Medical Council of Jamaica with qualifications BSc; MBBS; and FRCS. This Consultant Orthopaedic Surgeon with the South Eastern Regional Health Authority parades a no less professional resume which bespeaks his illustrious capacity. In his report of January 5, 2011 he iterates that “I am acting as an expert witness for the purpose of evaluation” of Veronica Irving by consultation to assist the Supreme Court in its deliberations. He had perused Dr. Minott's written medical reports, referred to his earlier report of January 15, 2010 and to a letter from K. Churchill Neita dated February 1, 2010. I now quote in part from his report of January 5, 2011: “I have reviewed my records concerning this patient and continue to stand by my findings as reported on January 20, 2010. Based upon the history related to me by Miss Irving, along with my findings on physical examination on the 8th day of December, 2009, my diagnosis remains that of a soft tissue injury of her neck and back resulting from a Class I cervical strain.”
Let me pause to throw some retrospectant light on the report of January 16, 2010. Here, as before, Dr. Lawson says that ‘he was mindful of his obligations to assist the Court in its deliberations’. In this report he described her then current symptoms as intermittent pains in her neck and lower back. From the sub-headings, ‘History’, there is this important piece of information: ‘Ms Irving also reports that she was referred by Dr. Dundas to have MRI studies done but she is unaware of the results.’ Under sub-head, ‘Physical Examination’, he reports that Miss Irving demonstrated a near normal range of motion of her neck and back with some discomfort shown and that ‘ no significant spinal tenderness was demonstrable.’ He diagnosed her as experiencing on-going intermittent painful symptoms from soft tissue injury to her neck and back and rated her whole person impairment at 1%.
It was from the 15th January, 2011 vis-à-vis the January 5, 2011 that he recruited his steadfastness of a 1% whole person impairment rating as “ Miss Irving demonstrated no evidence of either a spinal instability or spinal nerve deficit from impingement. Nothing in her history or examination findings at that time (15/11/2011) suggested to me that further investigations, radiographic or otherwise were indicated .” However, at the time of producing the January 5, 2011 report Dr. Lawson had the benefit of seeing Dr. Dundas' addendum in which the latter diagnosed Miss Irving as having multi-level ‘disc disease’”, about which he Dr. Lawson “can neither concur with nor refute as it must be based on his findings at the time of performing his examination and investigation of Miss Irving.” He dilates that “Such a condition can be demonstrated on radiographs or magnectic resonance imaging (MRI).”
When the emphasized portions of the extracts from Dr. Lawson and Dr. Dundas are juxtaposed it is evident that Dr. Dundas' examination of Miss Irving was more...
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