Wilson (Dalton) v Raymond Reid
| Jurisdiction | Jamaica |
| Judge | Sinclair-Haynes, J. (Ag.) |
| Judgment Date | 20 December 2004 |
| Judgment citation (vLex) | [2004] 12 JJC 2002 |
| Court | Supreme Court (Jamaica) |
| Date | 20 December 2004 |
| Docket Number | CLAIM NO. 2004/HCV0889 |
DAMAGES - Motor vehicle accident - Personal injuries - Lost income - Loss of future earnings - Special damages
Raymond Reid was a passenger in a bus owned by Dalton Wilson which collided with another vehicle. As a result of the collision he was pinned between two seats for fifty (50) minutes and thereby suffered personal injuries and loss. The ill-fated day was September 17, 2002. Judgment in Default was entered against Mr. Dalton Wilson. It is now my task to assess the damages sustained by the claimant.
Claim for General Damages
Re: Pain and sufferings and loss of amenities
Mr. Reid was examined by Dr. Grantel Dundas. The following is an extract from his Medical Report dated March 3, 2004:
Examination
"There was a 1 cm superficial scar in the right lumbar area. The pelvis was unremarkable.
In the Lower extremities he walked with a short leg limp and a mild antalgic gait. The left lower limb was 2 cm longer than the right. He stood with the left knee slightly flexed. Trendelenburg sign was negative. There was a 1 cm deficit in the left calf circumference but the thighs were equal. There was a 14.5 cm oblique hypertrophic, hyperpigmented scar in the left gluteal area. He had a 30° flexion contracture of the left hip and could flex 80°. He could abduct to 20° and had a 15° external rotatory deformity. His external rotatory range extended to 35°. There was pain at all the extremes of motion. There was significant patello-femoral crepitus in the left knee but no fusion.
The Steinmann pin scars in the left leg were puckered and the skin adherent to the underlying tissues. The scars were 5 cm distal and 3 cm posterior to the tibial tuberosity. There was no deficit in power, sensation or reflex due to in the lower extremity. He could straight-leg-raise to 65° on the right and 45° on the left with tight hamstrings. Laéegue test was negative. On the right lower extremity he had a 7+4 cm T-scar on the medial arch of the right foot. There was no tenderness or restriction in movement.
Diagnosis
The diagnosis entertained was osteoarthritis of right hip secondary to fractured acetabulum.
Investigation
Radiographs done at Medical X-ray Institute indicated that he had a sclerosis at the first tarsometatarsal joint of the right foot but there was no evidence of fracture currently.
On the left hemipelvis he had a superolaterally placed plate over the right acetabulum but significant diminution in the articular gap from normal 4 mm to 2 mm. There was evidence of lateral osteophytes formation at the acetabulum and heterotopic bone formation above the greater trochanter.
This man's residual impairment using the American Medical Association Guides for the Evaluation of Permanent Impairment amounts to 48 per cent of the lower extremity or 19 per cent of the whole person.
Prognosis
It is likely that his hip joint will go on to develop severe osteoarthritis probably necessitating Low Friction Arthroplasty in the future. Signs of this type of change are already evident."
Mr. Reid's evidence
The claimant testified that whilst he was pinned between the seats he experienced excruciating pain. His evidence is when he was finally removed he experienced "pain under his belly down." His feet could not touch the ground and he had no feelings when they touched the ground. The bone was protruding from his right side.
Whilst he was being transported to the hospital, the pain he felt in his chest, feet and all over his body was so severe that he felt he would die. Whilst at the hospital, he received an injection, which eased the pain a little. He was awake whilst the doctor used a bit to drill into his left foot. During this he said, "I felt out of the world with pain." He was given painkillers but the effect wore off before the procedure ended.
A hole was drilled in his left leg; an eight-pound weight was attached to it and a pin was placed into the hole. Two strings were attached to the outside in order to balance the weight. At the end of the procedure he was given painkillers in the form of an injection which allowed him to sleep briefly. He awoke to pain. He was very uncomfortably positioned in bed because of the injury and the traction that remained on his leg until he had surgery.
During surgery he was awake. The operation lasted 3 ½ to 4 hours. About 1 ½ hours through the operation the anaesthetic wore off. According to him the procedure was horrifying because he saw what they were doing to him.
After his discharge from the hospital he was unable to move without the assistance of someone. His feet could not touch the ground. He had to lie on his back. If he sat up he felt pain from the operation and around his waist.
By the middle of the week his entire left side lost sensation. Consequently, he was re-admitted to the hospital for three (3) weeks. A blood clot was discovered in his foot near the pin. He also developed an infection in the plate in his hip. The wound was reopened and cleaned. He told the court it was a painful experience. In his words, "It wasn't pleasant." He was unable to move around and take care of himself, for example, he could not use the bathroom unaided.
Upon his discharge, he was referred to the Chest Hospital for skin graft to his right foot. Skin was removed from his buttocks and used in the procedure, this was yet another operation. He was again wide-awake during the procedure. He spent the entire day at the hospital. After the operation his foot felt tight. He had to continue to lie on his back and suffered pain when he attempted to put his foot on the ground. He had no strength in his upper body. It wasn't until May 2003 that he was able to move around with the aid of someone and crutches. Eventually, he was able to ambulate by placing a piece of sponge under his foot. He needed assistance to get on and off the toilet.
Early June 2003 he was able to put weight on his left foot. He was, however, still in pain and was unable to sleep properly. He suffered nightmares of the accident. He was unable to turn in bed. His evidence is that the accident affected his ability to get an erection. Since the accident, he has had no sexual intercourse. Early 2004 he felt stiffness in his leg. Presently, he has a sticking pain in his right foot. Since April 2004 he suffers slight pain during the days but the pain worsens at nights. He now feels his condition is worsening. At nights, in order to get a good sleep he has to lift his leg by placing pillows under it.
His visits to the clinic to change his dressing were painful. His right leg is now 2 cms longer than his left. He walks with a limp. He experiences pain if he walks certain distances and has to stop to allow the pain to subside.
Prior to the accident he was able to walk distances, play football and cricket when he had the time. He jogged in the mornings. He is now unable to do these activities. He feels pain from his hip, right thigh down to his ankle and feet. He experiences pain on both sides. He is still a patient of the clinic and currently takes painkillers.
Submissions by Mr. Kevin Williams
Mr. Kevin Williams relied on the case of Vinroy McDermott v Mohan Rigg and Michael Ramsaroop CL2002/M 199. He submitted that Mr. McDermott's Permanent Partial Disability (PPD) was greater. His leg was shorter by 3 cms whilst Mr. Reid's was 2cms. Consequently, an award, lower than Two Million Dollars ($2,000,000.00) is appropriate. He submitted that Mr. Reid's testimony was contradictory in that Mr. Reid told the court he could not feel anything in his leg when he was taken from the vehicle and he was unconscious for 30 — 45 seconds. He told the court that he had pain from his waist down, but yet he told the court he had no feelings in his foot and from his waist down. Further, his claim of sexual dysfunction is not proven, as it is not mentioned in the medical certificate.
Submissions by Mr. Richard Reitzin
Mr. Reitzin cited the case of Marcia Bradford v Melrose Martin and Delroy Macoe Suit No. C.L. 1999 B 150 cited in Volume 5 of...
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