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In
this action the plaintiff claims damages for injuries
and loss sustained as a result of an accident which occurred
on the 10th September, 1975 and which he alleges to be
due to the negligent driving of the Defendant.
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In
the support of the claim, the plaintiff himself and two
other witnesses gave their version as to how the accident
took place. The plaintiff said that sometime between 5:00
and 6:00 p.m. on the 10th September, 1975 he was cutting
grass some distance from the edge of the San Joaquin Road
and the next thing he recalls is that he woke up in the
Hospital. Both of the plaintiff's witnesses state that
on the 10th September, 1975 sometime after 5:00 p.m. the
plaintiff was cutting grass some distance from the edge
of the road, when the Defendant drove a pick-up along
the said road in a zig-zag manner and struck the Plaintiff.
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The
Defendant gave a different version of the manner in which
the plaintiff came to be struck and said that on the date
in question while driving a Pick-up on the right side
of the road through San Joaquin, he saw the plaintiff
riding a bicycle about 25 yards in front of him. Another
motor vehicle was coming from the other direction with
its bright lights on. The plaintiff attempted to cross
the road and he the defendant slowed down and avoided
the plaintiff. He heard noises at the back of the pick-up
and he stopped. He went to the back of the pick-up and
saw that he had struck the plaintiff. This version of
the accident came up for the first time when the Defendant
was in the witness stand. The Defendant's evidence was
not in keeping with his pleading nor was his version of
the accident put to the plaintiff or his witnesses both
of which circumstances I presume were due to instructions
given to his solicitor. Further his version is not consistent
with the fact that the plaintiff having been struck was
picked up about twenty feet from the edge of the road.
This was deposed to by the plaintiff's wife whose evidence
on this point was not challenged nor refuted in any way.
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I
accepted the version given by the plaintiff and his witnesses
as to the manner in which the accident occurred and found
that the plaintiff was struck by the Pick-up driven by
the Defendant while the plaintiff was some distance about
10 feet from the edge of the road. The Defendant drove
the Pick-up in a zig-zag manner along the San Joaquin
Road, and struck the Plaintiff. There was no other vehicle
on the road at the time.
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Consequently
I held that the Defendant was guilty of negligence and
that that negligence was the sole cause of the accident.
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From
the spot where he lay after being struck by the Pick-up,
the Plaintiff was taken to the Corozal Town Hospital and
examined by Dr. Anthony Gill who find him to be suffering
from severe concussion resulting in left sided hemi-paresis,
that is, impairment of function on the left side of the
body. I found that these injuries to the plaintiff were
sustained as a result of the negligence of the Defendant.
As a consequence the plaintiff was hospitalized for three
weeks and after discharge from the hospital received massages
over some period on his left hand and left leg. The weakness
on his left side is now permanent. Flexion on the finger
joints, wrists and elbow of the left hand and in the knee
and hip of the left leg is very limited. The plaintiff
is unable to grip with his left hand, has to drag his
left leg and cannot walk unaided for more than 30 feet.
He tends to forget things. At the date of the accident
the plaintiff was 58 years old.
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The
plaintiff claimed as special damages (a) expenses incurred
for medical attention, (b) transportation expenses, and
(c) loss of his bicycle. I was satisfied as to the amounts
claimed as expenses for medical attention and transportation
and allow the amounts claimed in the sum of $294.00 and
$622.74 respectively. The plaintiff did not satisfy the
Court that his bicycle was lost as a result of the defendant's
negligence nor did he prove as required on items of special
damage. What was his damage in this regard? I therefore
did not allow anything for this claim. The total amount
allowed as special damages then is $916.74.
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On
the question of general damages I adopted the approach
laid down in Cornelliac v. St. Louis (1965) 7 W. I.
R 491 and took into account the following circumstances:
(a) the nature and extent of the injuries, (b) the physical
disabilities which have resulted, (c) pain and suffering,
(d) the loss of amenities suffered, and (e) loss of pecuniary
prospects. I have set out above the evidence in regard
to factors (a), (b) and (c). As to loss of amenities,
the plaintiff's evidence is that he cannot bend, cannot
cut his grass for his animals and he cannot ride his bicycle
anymore. This loss such as it is must also be weighed
in assessing the damages.
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On
the question of pecuniary prospects or as it was presented
the probable loss of profits, I have before me only the
plaintiff's statement of his profits for the years 1974
to 1978 inclusive. The plaintiff recounted amounts worked
out for him by someone. This evidence was not challenged
or refuted in any way. It showed that after the accident
and the injuries resulting therefrom, there was a drop
in 1976 of about $3,330.00 or by 60% in his yearly profits
from the sale of cane which he grows and sells for a livelihood.
But 1977 showed an increase of $300 over the 1976 profits
and 1978 showed an increase of $600 over the 1977 takings.
If this rate of increase continued, by 1980 he would be
back to his pre-accident level of profit. It would appear
from the evidence therefore that his future loss of profits
would not be substantial. However, I was satisfied that
the plaintiff had suffered some loss of earning capacity,
in the first place there was the above mentioned drop
in his profits for three years preceding trial and in
all probability due to his injuries and the resulting
physical disability he will have to give up working his
land and selling cane earlier than a man in his position
normally would have done. I was guided by the principle
laid down in Bonham-Carter v. Hyde Park Hotel Ltd.
(1948) 64 T.R. 177 and felt it incumbent upon me to
estimate his loss in this regard and make an award in
respect of it. Taking into account the factual loss as
indicated above and bearing in mind the probabilities
of early retirement, I estimated the probable loss in
this regard at $15,000 less 10 % for tax purposes leaving
the sum of $l3,500. I then scale it down by one-third
in view of the fact that the plaintiff is about to get
a lump sum and for imponderables and contingencies. See
Jamaica Omnibus Services Ltd., & Mc Cain v. Caldarola
& Lopez (1966) 10 W. I. R 114 on appeal at (1966)
10 W. I. R. 117. I therefore arrive at an amount of
$9,125.00.
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In
determining what amount in the circumstances would be
a proper award in respect of general damages (i.e. in
addition to the sums for loss of profits) I adhered to
the principle that there ought to be some degree of unanimity
for awards made in respect of injuries of particular type
and that whilst doing so courts must have regard to awards
made by other courts in the locality and also to social,
economic and industrial conditions. I was not able to
find a local case or one from a neighbouring locality
that fits neatly with the instant case. But I was minded
of the decision in Ottley v. De Freitas et al (1968)
13 W. I. R. 498 where it is pointed out at pg. 500
that "in ascertaining trends in awards on comparable
cases … attention need not be restricted to cases
in which the nature of the injuries and the gravity of
the consequences suffered bear a close affinity to a complainant's."
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The
approach I therefore adopted was to consider awards of
general damages in cases which involved loss of use of
limbs.
(1)
There is Jamaica Bus Services V. Caldarola (1965) 8
W. I. R. 114 where the plaintiff who suffered severe
injury to right elbow resulting in loss of power of right
hand was awarded £3,600 under this head or $9,000.
(2)
In Boochoon & Ramsingh v. Gocool (1967) 12 W. I.
R. 359 the plaintiff in his middle fifties vas injured
in a motor collision whereby he sustained compound comminuted
fractures of his right leg resulting in 40% permanent
disability. Awarded $7,500 general damages.
(3)
The plaintiff in Ottley v. Defreitas (1968) 13 W. I.
R, 498 was left permanently partially disabled from
injuries to his left leg and right pelvis sustained in
a motor-car collision and received $8,500 general damages.
(4)
Then there is John v. Skeete (1970) 17 W. I. R. 7
where the Plaintiff sustained compound fracture of left
leg and a 10 inch long wound in left forearm leaving fingers,
wrist and elbow of left arm stiff and left leg functionless.
After skin graft and physiotherapy, leg improved but 1½
inches shorter than other, walks with limp. 35% partial
permanent disability. Awarded $17,00 general damages.
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Guiding
myse1f as best I can by the principles outlined above
and giving the matter the best judgment I can I award
the sum of $12,500 in respect of circumstances (a) to
(d).
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Judgment
for Plaintiff in the sum of $916.74 Special Damages and
$21,625.00 General Damages. Costs to be Taxed.
