Supreme Court
Action No. 244 of 1977
10th April, 1981
Moe, J.

Mr. J.C. Gray for the Plaintiff
Mr. Dean Lindo for the Defendant

Claim for damages for bodily injury - Claim for loss suffered as a result of injury - Factors taken into account in assessing general damages - Nature and extent of injuries - Pain and suffering - Loss of Earnings - Judgment for Plaintiff - Interest and Costs.

J U D G M E N T

In this matter the Plaintiff claims damages for bodily injury inflicted on him by the Defendants on or about the 5th day of September 1977 and for loss suffered by him as a result of the said bodily injury.

2. For the Plaintiff, he himself and one Orlando Carasco gave evidence whereas for the defence, there was evidence from the First named Defendant and Mr. Robert Usher, the Executive Secretary of the Northern Fishermen Cooperative Society Limited.

3. The Plaintiff said that on the 5th day of September 1977 at about 3:30 p.m. he was in Friends Club with a friend Orlando Carasco. The two Defendants, both his brothers, were also in the Club. He and the plaintiff went and were throwing darts. The Defendant Valerio went to him and asked him to play a game. He ignored him. Valerio repeated his request and the Plaintiff left off throwing, went back to the bar counter and returned the darts. Valerio came in front of him at the counter and said, "You should respect your brother." He told the Defendant, "why don't you behave yourself, don't you see I am ignoring you, why don't you keep far from me?" Valerio thereupon slapped him on his face, he got mad and slapped him back. Valerio struck him over his right eye with a beer pint. He felt blood pouring down, felt pain and put a handkerchief over his eye. He saw the other Defendant Herman picked up a piece of the bottle and Herman jucked him in his belly. He had blood all over his shirt and pants. He left and went to the Police Station where me made a report. From there he went to the hospital where both wounds were stitched and he was detained for twenty-four hours.

4. The evidence of Mr. Carasco was in similar vein. The Plaintiff and the Defendant Valerio were arguing. He saw Valerio slapped the Plaintiff and the Plaintiff slapped him back. The three of them were by the bar. Valerio was to one side of him, the Plaintiff to the other. Valerio took a beer pint and as he put it right across him, hit the Plaintiff over his right eye. The Plaintiff bent down, put his kerchief to his eye and he, Carasco, saw blood. He saw Herman come up from behind, stoop down, pick something up and hit at the Plaintiff in the area of the belly while he was still bending over. He and the Plaintiff went to the Police Station and then to the hospital where he had to wait. When he went in he saw the Plaintiff with bandages around his belly and over the right eye.

5. The account of the Defendant Valerio was that when the Plaintiff came into the bar the Plaintiff went directly to the Defendant Herman and used obscene language. Herman told the Plaintiff to leave him alone and the Plaintiff repeated the obscene language. He Valerio told the Plaintiff that it is a shame for brothers to be fighting each other. The Plaintiff told him to shut up and slapped him. He slapped the Plaintiff back. The Plaintiff threw a punch, missed and was coming towards him. He threw a pint bottle in his direction but doesn't know whether it hit him. The Plaintiff came and held him and they both went to the ground. Somebody pulled the Plaintiff off him. He got up, Herman told him, "let us go" and they both left the Club. He didn't see the Plaintiff bleeding. He thinks the bottle broke. He saw pieces on the ground.

6. I accept the version as given by the Plaintiff and his witness. I found that on the 5th day of September 1977 the First named Defendant, without justification or excuse, wounded the Plaintiff over his right eye; and the Second named Defendant, without justification or excuse wounded the Plaintiff in his abdomen. The wrong of each Defendant was committed contemporaneously and I hold that each of them is liable for the whole damaged caused to the Plaintiff.

7. I now proceed to determine the damages to which the Plaintiff is entitled. He claimed for loss of his clothing, particulars of which were given as follow: -

The Plaintiff did not satisfy the Court that the trousers, shorts and shoes were lost as a result of the wrong committed against him and I do not allow anything in respect of these items. I held that in all probability his shirt and under shirt were damaged by the wrong. He did not prove the amount of his loss in respect of the under shirt. Whereas he pleaded that the loss in respect of his shirt was $7.00, his evidence was that his loss was $20.00. There was no objection or challenge to this evidence and although there was no amendment of the Statement of Claim, in view of the evidence before the Court, I allow the amount of $20.00 in respect of the shirt.

8. In determining general damages I took into account (a) the nature and extent of the injuries; (b) pain and suffering; (c) loss of earnings. There was no evidence that physical disability resulted or that loss of amenities was suffered. The Plaintiff suffered two wounds, one over the right eye and one in the abdomen. He has scars from both wounds, was in pain for a period and was prevented from pursuing his occupation.

9. On the question of loss of earnings, the Plaintiff's evidence was that as a result of the injuries he received it took him about a month and a half before he could go back to work. He would have caught about a thousand pounds of fish in a month (or as said in re-examination in the six week period). On delivery one receives $3.50 per pound, at the end of the season a second payment of $8.00 per pound is made and one gets a third payment of 15 cent per pound. That is, he would have been paid for the six week period $3,500.00 plus $8,000.00 and a third instalment of $450.00, a total of $11,950.00. On the other hand the Defendant put before the Court the evidence of Mr. Robert Usher, the Executive Secretary of the Northern Fishermen Cooperative Society which was that on the 26th day of September 1977, i.e. 21 days after the incident, the Plaintiff delivered lobster tails to the Co-op albeit 35 lbs. The records Mr. Usher produced to the Court, show that the Plaintiff made deliveries on the 7th, 10th, 24th, 25th, 26th, and 28th October. Further, he said, for deliveries, the first payment is $3.00 per lb., the second payment $4.75 per lb. and a third payment of 5 cent per lb. I held that the Plaintiff's evidence was not to be relied upon on this issue. It was still incumbent upon me to estimate his loss and make an award in respect of it. In this regard the evidence of Mr. Usher was of great assistance.

10. The records produced by Mr. Usher support the contention of the Plaintiff that normally over a six week period the Plaintiff could earn from deliveries of 1,000 lbs of Lobster tails. A proper inference from Mr. Usher's evidence is that the Plaintiff was not fishing and delivering over a period of three weeks after the date of his injury. I therefore estimate the Plaintiff's loss in respect of such a period i.e. three weeks. I have also taken into account that the records indicate that for the year 1977 starting July, the Plaintiff was not delivering and thus not earning the same as in normal circumstances. Using what was before me I estimated the Plaintiff's loss of earnings for the relevant period at $1,800.00. For pain and suffering, I award $350.00 making a total of $2,150.00 for general damages.

11. Judgment then for the Plaintiff in the sum of $2,170.00 with interest at 6% on the general damages of $2,150.00 from 29th December 1977, date of the service of writ. He is to have his costs.

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