Supreme Court
Action No. 180 of 1983
5th December, 1983.
Rajasingham, J., Q.C.

Mr. Philip Zuniga for the Plaintiff.
Mr. Dean Barrow for the Defendants.

Tort - Trespass to the person - Personal injuries - Assessment of damages - General and special damages - Heads of damages in personal injuries cases.

J U D G M E N T

The Plaintiff's claim is for damages for injury suffered by him when he was assaulted by the Defendants. The Defendants filed an answer denying liability or in the alternative, pleading that the injuries had been caused accidentally and without any negligence on the part of the Defendants.

When the matter came up for trial, Counsel for the Defendants appeared in Court and stated that he had no instructions from his clients and had been unable to contact them to obtain instructions. Counsel sought to withdraw from the proceedings but the application was disallowed as it would have been gravely prejudicial to the Plaintiff at that stage.

The Plaintiff gave evidence and stated that he and his companion, one Christopher Cornell, had been dining at the Upstairs Café when the two Defendants came in and proceeded to abuse them for no apparent reason. The first Defendant asked for a cigarette and Cornell declined saying that he had just one left which he was going to smoke himself. The Defendants then left, and in passing the Plaintiff's table filched a piece of tomato from the plate of Cornell. The Defendants went downstairs and then returned to the place where the Plaintiff and his friend were dining and resumed molesting the Plaintiff and his friend. The second Defendant then helped himself to salad from the Plaintiff's salad bowl. The bartender, to whom the Plaintiff had earlier appealed, then asked the Defendants to leave the Plaintiff and his friend alone. The second Defendant then pushed the Plaintiff, who was sitting against the railing of the verandah. The Plaintiff stood up saying "Leave me alone" and received a blow from the first Defendant. He was then grabbed by the second Defendant and both fell down with the Plaintiff on top. Plaintiff asked them to stop and got up. By this time the bartender had been joined by a plain-clothes police officer. It would appear that all this pushing and falling had also broken some glasses and crockery. The Defendants were asked to pay for the damage and they began arguing with the policeman and the bartender, with the second Defendant saying, "Who is going to pay for my shirt?". The Plaintiff says he then said, "Who is going to pay for my broken glasses?" and Brown reacted by hitting him and Strongbourne by pushing him. This combined assault caused him to fall down on the broken glass and suffer a severe cut on his wrist. He was taken to hospital and operated on. He was in hospital for three days and suffered severe pain for a whole month. Subsequently, on the advise of the Doctors he saw here in Belize, he went to Germany and underwent microsurgery to join the median nerve ends. As he had to wait his turn for the operation he spent two months in Germany. The Plaintiff is right-handed. The Plaintiff appeared to be about thirty years of age.

The Plaintiff called Dr. Gamero who spoke of the injury and the operation that followed that same night. He said the Plaintiff had a transverse cut of one and a half inches across the right wrist and that the cut had severed the median nerve, the cubital artery and the flexar tendons of the middle, index and right fingers of the right hand. The severed tendons were joined under general anaesthesia, as were the severed ends of the median nerve. The cubital artery was tied off. He said the Plaintiff also had a dislocated shoulder which was put back easily. The severance of the median nerve meant that the Plaintiff would have no sensitivity over the lower two-thirds of the hand. Dr. Gamero said that nerve tissue does not regenerate and that when the Plaintiff did not recover sensitivity, he recommended microsurgery to repair the median nerve. As this was not possible in Belize, the Plaintiff returned to his native Germany to have it done. The operation involved taking a piece of nerve from the thigh and bridging the severed portions. Dr. Gamero stated that he still suffered some sensitivity defect and also atrophy of the inter-osseous muscles of that hand. He said that complete recovery was impossible. He estimated that a further 15% improvement could occur with time and stated that ultimately the Plaintiff would have suffered a permanent disability of 30 -35 per cent in the use of that hand.

There is no evidence of this disability having affected the Plaintiff's employment or leisure activity at all.

Following the criteria established by Wooding C.J. in Cornelliac v. St. Louis, my findings are as follows: -

(a) The injuries were a dislocation of the left shoulder and a cut wound across the right wrist which severed the flexar tendons of three fingers, the median nerve and the cubital artery.

(b) The physical disability that resulted is a 30-35% permanent disability in the use of the right hand.

(c) The Plaintiff suffered severe pain from the injured hand for a period of one month initially, and then underwent a further operation on the median nerve which presumably caused him to suffer further post-operative pain.

(d) He has suffered a 30-35% permanent disability in the use of his right hand and he is right-handed.

I have, following the advise of Wooding C.J., sought guidance from the awards elsewhere with particular reference to the case of Newberry v. Northfleet U.D.C. decided by Hincliffe J. in 1968. In that case the Plaintiff suffered a division of the median nerve with anaesthesia and paralysis. After two operations and physiotheraphy, he made a remarkable recovery which left him with a slight disability when it came to picking up small objects. There was no evidence that it would affect his future employment. The special damages awarded in that case in 1968 were £1500.

In the cases that came closest to the type of injury suffered by the Plaintiff, I found that the awards under the head of general damages varied between £2,000 and £4,000, depending on the degree of damage and suffering.

Taking into account the dislocated shoulder and the pain and suffering endured by the Plaintiff and the estimated degree of permanent disability in the use of his right hand, I award a sum of $8,000 as general damages.

The Plaintiff has proved special damages in a sum of $9,202.

I therefore, award in all a sum of $17,202 as damages. The Plaintiff is entitled to the costs of this action.

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