Supreme Court
Action No. 23 of 1998
3rd March, 2000
Shanks, J.

Mr. Denys Barrow for the Plaintiffs
Mr. Vincent Castellanos representing himself

Assessment of damages - Road traffic accident - Principles to be taken into account by Court in making assessment.

J U D G M E N T

This is an assessment of damages in respect of a road traffic accident which occurred on the 24th March, 1996. Judgment in default of Defence was entered on the 28th of April, 1998. The Defendants were originally represented by Mr. Dujon who was instructed through an insurance company which is now no longer giving proper instructions. Mr. Dujon therefore in effect came off the record before this assessment first came before me. Steps were therefore taken to serve the defendants personally and that was done. Mr. Cajun has made no attempt to appear on the assessment. Mr. Vincent Castellanos appeared on the 22nd of February, 2000 and I gave him an opportunity to take advice if he wanted to say anything on the assessment. He has appeared in person today but has not taken any advice to put himself in a position to make any kind of point on the assessment and I will therefore proceed on the basis of the material put before me by the plaintiffs. This material consists of an affidavit by each of them, medical reports on each of them, and written submissions by Mr. Marshalleck.

Dealing first with the first Plaintiff, Javier Moreno, he was born on 12th August, 1966. He is now 34 years old. He suffered fractures to his left femur and left forefoot and the right ankle and hand. He suffered severe pain in the accident. He was in the hospital for two months. He had skeletal traction. He was in a wheelchair for one month, six months with crutches and five months using a walking stick. He is a primary school teacher and he was off work until November, 1996.

There was an assessment of his medical condition made by Mr. John Waithe on the 15th of October, 1997. Mr. Waithe stated in that assessment as follows; "Mr. Moreno complained of some pain in the left thigh. The left lower limb was shorter than the right, and he walked with a pronounced limp, favouring the left lower limb. He also complained of some pain in the left forefoot, which was deformed, and, on which account, he had some difficulty in fitting on shoes." And later it says "The left femur was shorter than the right by some 2 cm and there was a minor restriction of the range of movement of the left hip joint. There was some swelling around the right ankle but the range of movement of that joint was preserved." On page 2 of the report it states: "Mr. Moreno has sustained fractures of the right hand, right ankle, left femur and left forefoot which have united as described above. These injuries afforded him severe pain at the time of injury and for several days thereafter and necessitated a two-month period of hospitalization. It is my view that he will require surgical out-patient review for a total of two years from the time of injury. With regard to prognosis, improvement in Mr. Moreno's gait can be anticipated. The leg length disparity is, however, permanent and may pre-dispose him to the development of low back pain at a future date. Although the ankle fracture is affording him no symptoms at present, he is also likely to develop degenerative osteo-arthrosis of that joint in the future. The deformity of the forefoot is permanent and will afford Mr. Moreno some difficulty in finding suitable footwear. The deformity of the right hand is minor and is of only cosmetic significance. Mr. Moreno's injuries caused him to lose employment for a period of in excess of seven months. He is currently not fulfilling all the duties of physical education instruction and will, in my view, be unable to return to his pre-injury function in that regard. I would assess Mr. Moreno's permanent residual disability at forty percent (40%) of total body disability as the result of the injuries sustained".

An Affidavit put in by Mr. Moreno sworn 2nd November, 1999 describes his position as follows: "To date I am still unable to run, climb a ladder or do certain works at home. I am unable to play basketball and volleyball as I used to. I walk with a limp because the left leg is now shorter than the right".

Dealing with general damages, the serious injury seems to me to come with the category of a moderate severe leg injury in the categories adopted by the English Judicial Studies Board. Taking account of this and the authorities to which Mr. Marshalleck referred me it seems to me that if this case were in England the award would be £22,500.00. I multiply that by 3.2 (the exchange rate) and deduct a figure of 25% and reach an award of $54,000.00 for general damages. Two years interest thereon at 3% gives a total figure for general damages of $57,240.00. A number of special damages are set out in the Affidavit totalling $14,329.00. Interest from the 24th of March, 1996 (the date of the accident) at 15% but halved in the normal way gives a total interest figure of $4,298.00. The total award for Mr. Moreno is therefore $57,240.00, plus $14,329.00, plus $4,298.00 which gives $75,867.00 Bz.

Ms. Maria Moreno suffered a closed fracture of the left seventh rib and collarbone and lacerations in the accident. She was in-patient in the hospital for one day. She was off work for three weeks. She is also a teacher. I will simply award her general damages of $2,500.00 and special damages of $75.00 which is a total of $2,075.00.

The third and fourth plaintiff have not pursued their claims.

I will also award the Plaintiffs costs assessed in the sum of $3,500.00 Bz.

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