Supreme Court
Action No. 91 of 1983
26th July, 1984
Rajasingham, J.

Mr. N. Dujon for the Plaintiffs

Assessment of Damages - Undefended suit - Injury to 10 year old child - Sole evidence of doctor - Award of Special damages - Award of General Damages - Award of General Damages to be deposited in Bank Account - Costs.

J U D G M E N T

This matter came up before the court for assessment of damages. The Plaintiff Margarita Servera was about ten years old when she was knocked down by a motor vehicle allegedly driven by the Defendant. Her sole injury was a blow across the middle of her back. According to her mother the child was hospitalised for a week and two days. The doctor who attended to her at the time is not available now. The child was examined by Doctor Johnson, a private practitioner in Orange Walk, in June 1984, exactly two years after the accident.

Dr. Johnson said that the x-rays taken at the time of the accident did not show anything of consequence. I take this to mean they certainly do not show any fractures or any displacement of bone structures. He said the history of her injury, as he gleaned them from hospital records, spoke of tenderness across the lumbar area and the sacral spine radiating to the right. He said the child walked with a very, very slight limp, so slight that one has to look for it. I accept this as a distinct possibility, although in a child as young as this child was at the time of the accident, I would have expected the trauma to have worn off completely by now. It may, in the opinion of Dr. Johnson be caused by slight degeneration at the time of the accident which was not cured with time. He can only mean degeneration in muscle tone because by his own evidence the x-rays showed nothing wrong with any bone. However, as his evidence progressed, the doctor referred to "this arthritic change" (unquote) as if this had been established as inevitable. A little later he said "the arthritic change can only be seen by future x-rays" (unquote).

He spoke of the pain suffered by the child at the time of the accident as being a possible eight on a range of one to ten. He said the injury could continue to cause intermittent pain in the region of a five on that scale. I am afraid the doctor's evidence is highly unreliable and is built on hypothesis after hypothesis. He said this blow on the back could cause increased pain in child bearing as the spine is pulled forward and then said the child bearing pains would in any event over-ride any "discomfort" from the injury and that she could bear children normally. He even said there was a 20% chance of it affecting her future sexual activity but that that depended on how the arthritis developed. He said the arthritis could, in theory, improve. He even spoke of a remote possibility of surgical treatment on the spine.

This case is undefended. I was disturbed by the attempts by the doctor to build up a blow on the back of a ten year old girl, with no evidence of bone damage into a spinal injury affecting sexual activity and child bearing. I am afraid I can only accept that she suffered a fairly high degree of pain and suffering for a week or ten days and perhaps stiffness and tenderness for another month or so. I accept that she favours that side subconsciously as she walks and probably does occasionally suffer some discomfort from muscle pain. I do not accept that it must necessarily indicate arthritic changes but accept that that is a remote possibility. I do not accept that she has suffered any permanent disability.

The Trinidad cases of Remgit v. Ali (1972) and Maharaj v. Kalloo (1974) are very similar and provide good guidance on the range of damages awarded in such cases. I award special damages to the Plaintiffs in a sum of $133.00 and general damages in a sum of $1,250.00. I also award the Plaintiffs costs in a sum of $400.00, inclusive of any fees paid to the doctor.

I further order that the sum of $1,250.00 awarded as general damages shall be deposited in a savings account at Barclays Bank in the name of the child and shall not be drawn upon without the express authorisation of the Court. This account shall be opened in collaboration with the Registrar of the Supreme Court.

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