Supreme Court
Action No. 107 of 1984
7th August, 1984
Moe, C.J.

Mr. N. Dujon for the Plaintiff
Mr. M. Young for the Defendant

Assessment of damages - injuries and loss sustained on account of negligent driving by 2nd defendant of motor vehicle owned by 1st defendant - plaintiff sustaining fracture of 2nd lumbar vertebra with forward displacement of 1st lumbar vertebra, damage to spinal cord and nerve roots, deformity in spine with prominence of bone at the level of the 2nd vertebra and sclerosis at that point, almost total paralysis of right lower limb and partial paralysis in left lower limb, urinary tract infection with discomfort in urinating, large oval lesion to be removed - needs to be assisted to get around, uses wheelchair, cannot engage in sexual intercourse as before incident - damages for pain and suffering and loss of amenities, loss of pecuniary prospects, cost of future medical care, special damages, interest - damages awarded of $144,808.80 with interest on $60,000.00 for pain and suffering at 8% per annum.

J U D G M E N T

This is an assessment of the damages to be awarded to the Plaintiff for injuries and loss he sustained on account of the negligent driving by the second Defendant of a motor vehicle owned by the first Defendant.

As a result of an accident with the vehicle, the Plaintiff suffered a fracture of the second lumbar vertebra with a forward displacement of the first lumbar vertebra and damage to the lower part and extreme lower end of the spinal cord and nerve roots which descend from the spinal cord into the vertebrae canal at that level. There was some angulation at the site of fracture both in the posterior and lateral planes, and he now has an obvious deformity in the spine with prominence of bone at the level of the second vertebra and sclerosis at that point. He is almost totally paralyzed in his right lower limb, and his left lower limb has only a little power in the region of the hip and the quadriceps muscles of the left thigh. His upper limbs are normal. As a consequence of the injury, he developed a urinary tract infection and presently has a large oval lesion which has to be removed.

On receiving the injury, the Plaintiff would have been in excruciating pain for about one week and would have experienced pain thereafter by inadvertent movement for quite some time. He still experiences pain at the site of injury, which will diminish as time passes. Urinary tract infection is also very painful and the Plaintiff experiences discomfort whenever he passes urine.

The Plaintiff, 27 years old at the date of the accident, is married and has two children. He was a Private in the Belize Defence Force, having joined on 7th July, 1981, and was boarded out as a consequence of the accident. He used to play football and run the marathon. He cannot remain sitting upright for long periods. After fifteen minutes he experiences a lot of pain in his back. He sits in a wheel-chair. He was taught how to move from bed to wheel-chair and from wheel-chair to bed or toilet. He however, has to be assisted daily to get around. He cannot have sexual intercourse as he did before the accident.

In assessing damages I kept in mind the considerations outlined in Cornilliac v St. Louis 7 W.I.R. 491 and in view of the evidence considered an award under the following heads:-

(1) Special damages until trial;
(2) Pain and suffering and loss of amenities;
(3) Loss of pecuniary prospects;
(4) Cost of future medical care; and
(5) Interest.

The Plaintiff satisfied the Court as to the amount claimed under the head of special damage and I allow it, $300.00.

As to pain and suffering and loss of amenities, both Counsel referred me to Flowers v Batra et al No. 210 of 1979, Supreme Court of Belize in which an award was made on 6th August, 1981 for injury of similar nature and to some other Caribbean cases in which damages for grave injury were awarded as follows:-

Sylvestre Hylton v Leonard Davis (Jam.) April 1980
Pierette Carle v Athol Chin (Jam.) Feb. 1980
Timothy Shand v Asphalt Distributors Ltd. (Jam.) Sept. 1981

I kept in mind that the above cases are referable to their own facts, but regarded them as giving a guide as to a general standard of award. I took into account also that some three years have passed since the award in Flowers' case and that there has been a drop in money values. I think that in this case fair compensation for pain and suffering and loss of amenities would be $60,000.00.

I turn now to the matter of loss of pecuniary prospects. On the date of the accident the Plaintiff was earning $174.30 per fortnight as a soldier. He intended to make a career in the Belize Defence Force. A Private would get an increment after every three years of service reaching the maximum of $267.60 per fortnight after 21 years. The Plaintiff's evidence was that he expected to reach the rank of Sergeant during his career, for which he would have received $286.65 as a starting point and reaching a maximum of $350.40 per fortnight. There was no evidence to suggest that he would not have gained promotion and I took into account in assessing damages a loss of such an opportunity.

As the basis for calculation of damages, I used the Plaintiff's earnings of $4,531.80 per annum. I assumed he would have had 33 more years of working life and then scaled down the multiplier of 33 for all the imponderables. These included the fact of a lump sum payment being made, and the uncertainty of income tax. I bore in mind that he is married and has two children. There was a re-adjustment to take into account the Plaintiff's prospects of higher earnings. I used a multiplier of 16 and arrive at a figure of $72,508.80.

As to the cost of future medical care, the surgeon gave evidence that it is desirable that the Plaintiff have the oval lesion removed by a closed operation for which he would have to go abroad. It is also important that he be fitted with a pair of walking braces and crutches to enable him to get about. He will need physiotherapy for a period.

From now on the Plaintiff will need continuous follow up by the same practitioner with procedures for urine and blood tests and X-Ray of kidney to monitor proper and prescribed course of antibiotics as infection occurs. I have been given the following figures: $4,000.00 - cost of operation; $1,100.00 - cost of airfare; $1,000.00 - cost of braces; $400.00 - cost of crutches; $15.00 per visit to doctor about once a month, with an allowance for cost of getting to and from the doctor - $5,500.00. Under this head I award $12,000.00.

Looking at the overall figure of $144,808.80, I think the compensation is fair in all the circumstances. Judgment for the Plaintiff in that sum with interest at 8% per annum on $60,000.00 for pain, suffering and loss of amenities from 17th April 1984. He is to have his costs.

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