Wilson (Dalton) v Raymond Reid

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: SMITH. J.A. , McCALLA, J.A. , MARSH, J.A. (Ag.) , SMITH, J.A.
• Judgment Date: 20 December 2007
• Neutral Citation: JM 2007 CA 87
• Judgment citation (vLex): [2007] 12 JJC 2011
• Date: 20 December 2007
• Docket Number: SUPREME COURT CIVIL APPEAL NO. 14/2005

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE SMITH, J.A THE HON. MRS. JUSTICE McCALLA, J.A THE HON. MR. JUSTICE MARSH, J.A. (Ag.)

SUPREME COURT CIVIL APPEAL NO. 14/2005

BETWEEN

DALTON WILSON

APPELLANT

AND

RAYMOND REID

RESPONDENT

Hilary Phillips Q.C., and Kevin Williams Grant, Stewart, Phillips & Company

Lord Gifford, Q.C. and Richard Reitzin Reitzin & Hernandez

NEGLIGENCE - Motor vehicle collision

DAMAGES - Pain and suffering - Loss of past and future earnings - Quantum manifestly excessive

SMITH. J.A.

1 This is an appeal against a decision of Sinclair-Haynes J, made on the 20 ^th day of December, 2004 on an Assessment of Damages.

2 On Monday, 17 ^th September 2002, the respondent was a fare-paying passenger on a bus owned by the appellant and driven at the time by one Mr. Donald Mitchell. The bus driven crashed into another bus which was parked on the Six Miles overpass thereby causing the respondent to suffer injuries, loss and damage. The liability of the appellant was not disputed in the court below.

3 The order the learned trial judge made on the 20 ^th December, 2004 is as follows:

"...That:

• 1. The claimant be awarded the sum ot $2.79 million for general damages;

• 2. The claimant be awarded the sum of $2. 548 million for loss of future earnings;

• 3. The claimant be awarded the sum of $647,100.00 for future medical expenses;

• 4. The claimant be awarded interest on general damages at the rate of 6% per annum from June 16, 2003 to December 20, 2004;

• 5. The claimant be awarded loss of past earnings of $636,679.45 (being $7,000.00 per week from September 17, 2002 to September 30, 2003 plus $2,750.00 per week from October 1, 2003 to July 31, 2004 and $7,000.00 per week from August 1, 2004 to December 20, 2004);

• 6. The claimant be awarded other special damages in the sum of $222,766.80;

• 7. The claimant be awarded interest on special damages at the rate of 6% per annum from September 17, 2002 to December 20, 2004; and

• 8. Costs to the claimant to be agreed or taxed."

4 The grounds of appeal are:

• (a) The Learned Trial Judge erred in law in her assessment of the quantum of damages for pain and suffering and loss of past and future earnings.

• (b) That the aforesaid quantum assessed by the learned trial judge is manifestly excessive.

• (c ) That the finding in respect of the head of damages for security guard and for electrical work was not specifically proved.

5 Miss Phillips, Q.C. told the Court that the appellant's complaint is in relation to items 1,2 and 5.

6 Grounds (a) and (b)

7 The appellant challenges the quantum of damages for pain and suffering and loss of past and future earnings.

8 General Damages for Pain and Suffering

9 The amount awarded is $2,790,000.00. Miss Phillips, Q.C. contends that this award is manifestly excessive.

10 Three medical reports were tendered in relation to the injuries suffered by the respondent. The first dated May 7, 2003 is an interim report signed by Dr. N. N. Than. The second and third reports dated March 3, 2004 and April 16, 2004 were issued by Dr. Grantel Dundas, a Consultant Orthopaedic Surgeon.

11 The medical evidence reveals that the respondent suffered the following injuries:

• (a) Shortening of the left lower limb by 2cm resulting in short leg limp and a mild antalgic gait.

• (b) A posterior dislocation of the left hip and a fracture of the acetabulum on the left.

• (c ) A 6cm T-shaped laceration over the medial aspect of the right foot.

• (d) A 14.5 cm oblique hypertrophic scar in the left gluteal area.

• (e) Abrasion over left medial aspect of the right thigh.

• (f) Reduction in the range of movement of the left thigh.

• (g) Fracture of the 3rd metatarsal bone

• (h) Wound over the left buttock (i ) Deep vein thrombosis

• (j) Osteoarthritis of right hip secondary to fractured acetabulum

12 As regards (c ) above the respondent said that he sustained an extensive degloving injury to the sole of the right foot which was sutured and later skin grafted. Dr. Dundas opined that the respondent's residual impairment was 48% of the left lower extremity or 19% of the whole person. His prognosis was that the hip joint would go on to develop severe osteoarthritis probably necessitating Low Friction Arthroplasty in the future.

13 In the second report Dr. Dundas stated:

• (i) That the pin scars in the left leg were puckered and the skin was adherent to the underlying tissues; and

• (ii) That there was pain in all the extremes of motion.

14 The relevant aspects of the evidence of the respondent in this regard may be summarized as follows:

15 Whilst he was pinned between the seats he experienced excruciating pain. When he was pulled from the wreck he experienced severe pain from his "belly down". The bottom of the right foot was torn. The bone at the right side was protruding. When he was being transported to the hospital the pain was almost unbearable. He was conscious whilst the doctor used a bit to drill into his left foot. According to him during this procedure he "felt out of the world with pain". An eight pound weight was attached to his leg and a pin inserted. The operation lasted tor 3 ½ to 4 hours. About 1 ½ hours through the operation the anaesthetic wore off and he experienced untold trauma.

16 After his discharge from the hospital he was not ambulant. He could not even sit up in bed; he had to remain supine. His condition deteriorated and he was re-admitted to the hospital. A blood clot was discovered in his foot near the pin. The wound was re-opened and cleaned. This he said was a painful experience.

17 After discharge he underwent a skin graft operation. Skin was removed from his buttocks in this procedure. After this he continued to lie on his back as it was extremely painful when he attempted to put his feet on the ground.

18 In May, 2003, that is 8 months after the accident, he began to move around but only with the assistance of someone or crutches. In June, 2003, he was able "to put weight on his feet."

19 As a result of the accident he has become sexually dysfunctional. Up to the time of hearing of this matter he was experiencing pain in the right foot. At nights in order to abate the pain, he has had to place pillows under his leg. He can no longer play cricket or football. He is still a patient at the clinic and still takes painkillers.

20 The burden of Miss Phillips, Q.C.'s submissions is that the judge's award was erroneous. She contended that the learned judge...