Supreme Court
Action No. 215 of 1978
6th August, 1981
Moe, J.

Mr. W.P. Elrington for the Plaintiff
Mr. Dean Lindo for the Defendant

Tort - Personal injuries - Assessment of damages - General - Heads of damages and factors to be considered - Loss of eye - Loss of finger and partial loss of function in other fingers - Aggravated damages as an element of general damages.

J U D G M E N T

Judgment having been entered elsewhere for the Plaintiff, this is an assessment of damages for personal injuries suffered by him.

The Plaintiff, 33 years old at the material time, went to the Defendant's Club about 6:30 p.m. to purchase rice and beans. He made his order then standing about 6 feet from the Defendant. As he said "one place of rice and bean to go", the Defendant said "I am going to kill this nigger". The Plaintiff took money out of his purse to pay for his order and asked the Defendant what he had done him. The Defendant replied he had broken into his place and stolen from him. At that moment the Defendant's wife came out and said "Nico, no - no- no- don't do it." The Defendant picked up a gun at his side and shot at the Plaintiff. The Plaintiff put up his hands as the gun was aimed and as he heard the report he felt the shot. The Plaintiff fell on his back and the Defendant came, hauled him out of the yard at the back and left him there.

The Plaintiff remained there for about eight to ten minutes, struggled, got up, left the yard and got himself to the hospital about 400 - 500 yards away. He remembered reaching the hospital but he next remembered being in the Belize City Hospital three days later. He spent on month in the hospital.

The Plaintiff testified that during the time in hospital he was in pain night and day for a long time. He detailed his injuries as a loss of his left eye, loss of his right middle finger and a permanent stiffness in his right index finger. He still has pellets in his forehead.

Dr. Perez-Schofield an opthalmologist saw the Plaintiff three days after the incident. He found no perception of light in the left eye and destruction of complete eye function. About three weeks later he performed an enucleation of the eye but was unable to remove any of the pellets. He explained that the Plaintiff had severe pain initially and while he was in hospital under sedation for the pain, it could last hours or days. According to him the Plaintiff has been having neuralgic headaches and received analgesics in respect of the injuries.

The record made by the Doctor who examined the Plaintiff on the day after the incident noted the eye injury and a compound fracture and lacerated index and middle fingers. Operations were performed twice on the Plaintiff's hand and a frontal region of the skull. The index finger was saved and three pellets removed from the scalp. There was total loss of the middle finger and partial loss of function of the index finger. Percentage loss due to fingers is 12%

The Plaintiff said that his main source of earning was as a cane cutter. The season for cane cutting starts in November or December and usually ends between May/ July of the following year. He used to earn therefrom between $60.00 per week and $100.00 per week. After the incident he couldn't go and cut cane and next started to work about May 1979 doing odd jobs, according to him a catch and kill procedure. He now works with Public Works for $63.00 per week.

The Plaintiff claimed no special damages and the assessment is of general damages only.

As is well known Cornilliac v St. Louis 7 W.I.R. 491 sets out the general principles upon which to base an award of general damages. While I kept in mind the several considerations set out in Cornilliac v St. Louis, I was guided by the principles stated in 1967 by Wooding, C. J. of Trinidad and Tobago. He said, "In a jurisdiction such as ours in which assessments of general damages are made by the judges without the aid of juries it has become accepted principle that the courts should strive for as high a measure of uniformity of awards as is reasonably practicable." See Aziz Ahamad Ltd. v Raghunar Raghubar 12 W.I.R. 352 at pg.356. The learned Chief Justice also said "such uniformity as may be practicable should conform with current trends here and not elsewhere. ----We ought consciously to set about establishing and following trends of our own. But until we do we should pay heed to and take such guidance as we can from awards elsewhere, making such adjustments as may be appropriate having regard to our own prevailing conditions". ibid at pg. 357. This approach has been followed here by Malone, C.J. in Tillett v Atherly No. 68/71 and by me in Gutterrez v Ek No. 37 of 1976.

In order to arrive at a fair award in respect of pain, suffering and loss of amenities, I considered cases in which award was made for the loss of an eye and for injury to fingers, remembering of course that while they indicate a general standard, they are referable to their own facts.

In the case of Sheehan v A.C. Del Co. Ltd. 1973 Kemp 5-315 Scarman, L.J. said it would appear that the current conventional figure for the loss of an eye is somewhere between £3,500 and £4,000. That figure may be adjusted to put it in line with values at the relevant date and it is noted that in 1980 in Gateson v Kiln Park Estates, for loss of vision in the left eye, general damages were assessed at £6,000 after deduction of a discount of 25% in respect of pre-existing liability.

In 1974 Des Iles, J. made an award of $12,000 to a woman in her mid-thirties who had virtually lost the use of her right eye and still suffered pain in her head caused by the injury. (Hanciph v Greenidge No. 966/70 T & T) In 1975 Bourne-Hollands, J. awarded $20,000 to a 19 year old girl who suffered multiple lacerations of the forehead, laceration of the globe of the right eye which has ruptured over a wide area and loss of the sight of the right eye. (Smith v Smith 136/73 T & T). In 1976 in the case of Neal v Swift (No. 40/73 Belize) where a young unmarried woman of 28 years suffered lacerations to her face which left scars and an injury to the left eye resulting in very limited vision in the left eye and a lurking danger of glaucoma with further loss of sight to both eyes, Chief Justice Malone made an award of $40,000, noting that in the U.K. the conventional award for the loss of an eye was $16,000 to $18,000.00.

With regard to the injuries to the fingers, from such cases as Hemsworth v Dunlop Rubber Co. Ltd. (1971), Rowlands v Central Electricity Generating Board (1973), Brennan v H.C. Jones Ltd. (1973) and Mortimer v Cotton & Co. (1980), £3,000 - £5,000 emerges as the award for damage to several fingers with loss of one or more.

On the evidence put before the court I take the view that the Plaintiff's pecuniary prospects have not been materially affected.

It was not urged that the general damages to be awarded by way of compensation ought to be increased because of circumstances of aggravation but I think I should consider that aspect of the matter. Aggravated damages can be an element of the general damages which element expresses the indignation of the court at the injury inflicted on the Plaintiff. See Cassell and Co. Ltd. v Broome and another [1969] A.C. 590. I take the view that the Defendant's act may be characterized as wanton high-handed and insolent.

Bearing in mind the considerations adumbrated above and taking some account of the general difference between U.K. awards and awards in this region, I assess general damages at $24,000.00. The Plaintiff to have his costs agreed or taxed.

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