Supreme Court
Action No. 23 of 1977
28th April, 1980.
Barrington-Jones, J.

Mr. B. A. Pitts for the Plaintiff
No appearance by the First Defendant
Second Defendant in person

Personal injury from traffic accident - Leg and hip injuries - Assessment of Damages - Failure to make a specific claim for pain, suffering and loss of amenities in Writ and in Statement of Claim - Whether failure fatal to any attempts by Plaintiff to recover general damages - Special Damages - Assessment - Need for Plaintiff to prove actual damage suffered - Not sufficient for Plaintiff to merely allege actual damage suffered - Assessment of General Damages for pain, suffering and loss of amenities - Sexual impotence resulting from accident to be taken into account - Plaintiff's pursuits before traffic accident to be taken into account.

ASSESSMENT OF DAMAGES

This is an assessment of damages consequent upon injuries suffered by the Plaintiff in a traffic accident on the 6th October, 1975.

On the 21st November, 1978 judgment was entered for the Plaintiff against the second Defendant with damages to be assessed. After a number of adjournments, the assessment finally fell to be heard in this Court on the 25th March, 1980.

The Plaintiff, who is now 65 years old, was admitted to the Be1ize City Hospital for seven days as a result of the injuries sustained in the accident. Whilst detained there he says he was in pain and uncomfortable and a pin was put in his left leg and the leg put on traction and he was thereafter transferred to the University Hospital of the West Indies in Kingston where he was operated on by Professor Golding for a broken hip and damage to the bridge of his nose.

Professor Golding, in a report dated 9th April, 1979, confirms that the Plaintiff was admitted to the University Hospital on the 13th October, 1975 and at that time found that there was clinical and radiological evidence of a severe fracture dislocation of the left hip. It being noted that part of the head of the femur had been broken off from the main portion which was dislocated out of the joint.

On the 15th October, 1975 Professor Golding advises that he performed an open reduction for fracture dislocation of the hip, and said that following surgery the Plaintiff had difficulty with respiration, needing oxygen and physical therapy. He went on to say-

"This gradually improved and he was able to sit out of bed and start partial weight bearing with a walker by the 11th November."

The Plaintiff was finally discharged from hospital on the 24th December, 1975.

Professor Golding concluded:-

"Mr. Sutherland made a good recovery from the extremely severe injury of his hip. He was totally disabled from the time of injury until the end of December, 1975. He had a disability amounting to 50% of the function of his left leg for a further three months and a final disability amounting to 20% of the function of his lower limb taking into account the pain, residual stiffness and the probable development of a traumatic arthritis."

The Plaintiff says that he was in the University Hospital for seven weeks; and that he was in severe pain for the first two weeks in hospital in Jamaica after he had been operated on and when he was in traction. He said that he developed trouble with his right leg and confirmed that Professor Golding had written about his having difficulty with his respiration which required the use of oxygen. The Plaintiff said that he was able to sit up in bed in the 5th week and to stand at the end of his 6th week in hospital in Jamaica, but that he could not stand without assistance; and was unable to walk unaided during the whole time that he was in Jamaica.

The Plaintiff returned to Belize in late 1975 when he was re-admitted to the Belize City Hospital and where he received physiotherapy before being finally discharged after about 3 ½ weeks. The Plaintiff told the Court that he was able to walk on crutches a week before he was discharged and continued to use crutches until March, 1976, and that he continued to have physiotherapy during this period. In March 1976 he commenced to use a cane as an aid in walking and has used one ever since that time. The Plaintiff complains of pain in his hip and says that as he grows older this will become worse.

Prior to the accident, it was the Plaintiff's evidence that he was a keen ballroom dancer with his wife, and that he used to attend football and baseball matches as a spectator but that he cannot now dance nor can he attend sports matches. The Plaintiff was a driver at the time of the accident but has not been able to drive a motor vehicle since he was injured. The Plaintiff says that he cannot now enjoy coitus with his wife and states that he has been impotent since the accident.

In regard to his business interests, the Plaintiff says that he has a little business selling and delivering soft drinks, a business which his wife carried on whilst he was incapacitated but said that she was not very successful and that he is now trying to restore it to its former level before the accident.

The Plaintiff says that he suffered a loss in his business for six months at an average monthly loss of $250. He further states that his motor vehicle was a complete write-off as a result of the accident and that he paid $1,700 for it although he said it was valued at $2,400 at the time of the accident and that he paid $20 for the car to be removed from the accident site and that it was sold after the accident for $250.

The Plaintiff says that his medical expenses amounted to $650 in Jamaica. He also claims $110 in respect of a consultation with Dr. Perez and prescription for spectacles which became required after the accident. His account with the Belize City Hospital amounted to $320. He further states that airfares between Belize and Jamaica amounted to $1,437.14. He also claims expenses for taxis in the sum of $4,756.25 for the period October, 1976 to 3lst March, 1977. This, the Plaintiff claims, is based on a fare of $4 per journey between his home and the hospital on four days a week for 3½ months and 3 days a week for the remaining period of 3 weeks. He also claims for one additional journey to consult Dr. Perez; for taxi fares in respect of six visits to the Insurance Office at $2 per visit. The Plaintiff also says that he hired different taxis for 8 to 10 hours per day in order to deliver soft drinks which cost $35 per day, but did not tell the Court the period that such deliveries were made.

The Plaintiff admitted that he received $5,076 from the Belize International Insurance Co., Ltd., and invited the Court to discount this amount along with the $250 realised on his car from the assessment to be made.

There is a further claim by the Plaintiff in respect of a repair to a dental plate by Dr. Heusner in the sum of $25. Finally, the Plaintiff gave details of interest he was required to pay on the money he borrowed to purchase his car, but in my view that claim is too remote and I have therefore disregarded it in making this assessment.

Dr. G.F. Pott also gave evidence and said that he had read Professor Golding's memorandum and examined the Plaintiff on the 20th March, 1980. On examination, Dr. Pott found that the Plaintiff had a marked limp when walking with a cane, and he noted a loss of sensation over areas of the right leg. Dr. Pott examined x-rays of the Plaintiff's hip and found that such x-rays supported Professor Golding's findings and noted that arthritic changes had already begun to take place, and he said that these would get worse with age. He confirmed that the Plaintiff would be in pain. Dr. Pott gave his opinion that it would be impossible for the Plaintiff to be an active partner in sexual intercourse although he considered that impotence would not be a direct consequence of injury. Dr. Pott considered a psychological cause to be more likely and thought it a possibility in this case. Dr. Pott further considered that the Plaintiff's range of motion in the use of his hip will inevitably decrease with increasing severity of the arthritis. Dr. Pott said that the Plaintiff will have pain for the rest of his life, off and on, and that such pain will be annoying and disabling.

In conclusion, Mr. Pitts referred the Court to Munkman, "Damages for Personal Injuries and Death 5th Edition" and particularly to chapter 9: "Leg and Hip Injuries."

It is only fair to say here that there are some discrepancies in the dates of the Plaintiff's hospitalisation, as for instance Professor Golding in his report says that the Plaintiff was admitted to the University Hospital on the 13th October, 1975 and that he was discharged from hospital on the 24th December, 1975. I feel sure that this must mean his discharge from the University Hospital, and yet the Plaintiff in his evidence says that he returned to Belize on the 27th November 1975 and was re-admitted to the Belize City Hospital until he was finally discharged from that hospital on the 18th December, 1975. At all events, it seems clear that the Plaintiff was hospitalised from the date of the accident (6th October, 1975) until the end of 1975 and possibly a little longer.

So that is the Plaintiff's medical history.

Somewhat curiously, there are two identical originals of the Statement of Claim on the file and the total claimed under "Special Damages" is $11,174.39 but the amount claimed in respect of surgery at the University Hospital is shown as $656 whereas in evidence this sum was given as $650; for the purposes of this assessment the amount under this item will be $650. It is also true to say that there is no actual claim for general damages for pain, suffering and loss of amenities. The Writ merely states at (2) "Such other relief as is just" and the Statement of Claim is silent in regard to general damages, except in paragraph (2) where it is stated: "The Plaintiff thereby suffered injury, loss and damages."

Mr. Pitts, in a subsequent communication to the Registrar, states that there is a claim under general damages and that the Plaintiff suffered more loss than the insurance company made to him, and that he is entitled to a proper sum for general damages.

I would only say that such a claim for general damages should have been included in the Statement of Claim although, of course, it need not be pleaded in any detail. However, in the circumstances of this case, I do not think it would be improper if I made an assessment for general damages on the basis of the claim in the Writ for "such other relief as may be just" and the claim in the Statement of Claim for "damages".

In summary then, the Plaintiff's claims are as follows: -

General Damages

For pain, suffering and loss of amenities …

Special Damages

There is arithmetical error in the Plaintiff's Statement of Claim at item (ii), i.e. loss for six months at $250 per month is $1,500 and not $1,400 as stated. The 'Total Special Damages' in the Statement of Claim is therefore $11, 274.39 and not $11,174.39 as stated

I will now deal with the items claimed seriatim:-
Re: Item (i). It is apparent from the letter dated the 26th March, 1976 exhibited in Court from the Belize International Insurance Co., Ltd., that the cost of air fares for the Plaintiff to proceed to and from Jamaica was paid for by the Insurance Company and thus this is an item to be discounted, and for the purposes of this assessment this item is excluded.

Re: Item (ii). No details regarding the Plaintiff's business were disclosed to the Court except that it was a little business selling and distributing soft drinks. There was no statement of profits for any years, neither was there any evidence concerning the income or average income accruing from the business. So there is, in fact, nothing before the Court to show how the "loss of business" was computed at $250 per month for six months. As Lord Goddard said in Bonham-Carter v Hyde Park Hotel Ltd. (1948) 64 T.L.R. 177:-

"Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars and, so to speak, throw them at the head of the court saying: 'This is what I have lost; I ask you to give me these damages.' They have to prove it."

In the circumstances, I think that the fairest thing I can do is to allow the sum claimed at $250 per month whilst the Plaintiff was completely incapacitated, i.e. for 3 months; and then have the sum for the remaining three months, i.e. 3 x $125 = $375; so that $1,125 will be allowed in respect of this item.

Re: Item (iii). I have experienced the greatest difficulty in endeavouring to reconcile the figure claimed here with the evidence of the Plaintiff. It becomes quite evident that taxi fares to the hospital for treatment, including visits to the insurance company and Dr. Perez cannot possibly exceed $500; so that I must presume that this item also includes the Plaintiff's claim for the hiring of taxis for the delivery of soft drinks for 8 to 10 hours per day at a cost of $35 per day. Thus, deducting $500 from the amount claimed leaves a figure of $4,256.25; this presupposes that the Plaintiff hired a taxi for the conveyance of soft drinks for some 121 days. Here again there are no details - no description of journeys undertaken or amount of soft drinks delivered, and I would again refer to what Lord Goddard said in Bonham-Carter v the Hyde Park Hotel. I am not satisfied in the result regarding the propriety of this part of the claim and I will content myself with making a nominal award of $500 in respect of taxis used for business purposes. So that $1,000 will be allowed under this item.

Re: Item (iv). I have already held that the claim for interest is too remote in respect of this claim. In my view justice will be done if he is assessed on the basis of what he paid for his car, viz $1,700.

Re: Item (v). This item is allowed as claimed.

Re: Item (vi). This item is allowed as claimed.

Re: Item (vii). This item is allowed at $650.

Re: Item (viii). This item is allowed as claimed.

Re: Item (ix). This item is allowed as claimed.

Thus, the assessment in respect of special damages is as follows:-

Turning to the question of general damages for pain, suffering and loss of amenities, it is noted that the Plaintiff was 60 at the time of the accident in 1975 and is now 65 years of age. It is also borne in mind that the Plaintiff was totally incapacitated for some three months and will be subject to pain for the rest of his life with a 20% disability of function of lower limbs. In this connection I have considered Ottley v DeFreitas (1968) 13 W.L.R. 498 wherein it is stated that-

"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".

Noting that the Plaintiff in that particular case was left permanently disabled from injuries to his left leg and right pelvis sustained in a motor-car collision and received $8,500 general damages.

Trinidad Transport Enterprises Ltd. v Layne (1972) 24 W.I.R. 540 considered regarding damages for sexual impotence. Also considered was Boochoon and Ramsingh v Gocool (1967) 12 W.I.R 359; as well as Barbara Neal v Robert Swift No. 40 of 1973 where Malone C.J. took some account of the general difference that prevails between English rates of awards and local rates.

Thus, taking into account the Plaintiff's sexual difficulties, his pursuits before the accident, his present condition, and his age, I am satisfied, having regard to inflation, and after considering Frank v Cox (1967) 111 Sol Jo 670 that the award in respect for general damages should be assessed at $12,000.00.

From the total sum assessed there is to be discounted the sum paid by the Belize International Insurance Co., Ltd., viz: $5,076.00 plus $250 realised on the Plaintiff's car: this totals $5,326.00; thus, by deducting this sum from the total assessment of $16,950, the final figure of $11,624 is reached.

I will make no order as to interest. The Plaintiff is to have his costs.
Costs to be taxed by the Registrar.

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