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    Home » Judgments » High Court Judgments » CELINA FLEMING v PHOENIX FLEMING

    THE EASTERN CARIBBEAN SUPREME COURT
    IN THE HIGH COURT OF JUSTICE
    ANGUILLA
    Claim Number: AXAHCV2001/0059
    Between
    CELINA FLEMING
    And
    PHOENIX FLEMING
    Before:
    Master Cheryl Mathurin
    Appearances:
    Caribbean Associated Attorneys for the Claimant
    Ms Paulette Harrigan for the Defendant
    2006:0ctober 18th,
    2008: January 23rd
    ASSESSMENT OF DAMAGES
    Claimant
    Defendant
    [1 J MATHURIN, MASTER: It would be remiss of me not to mention the length of time it has
    taken to deliver this assessment and to apologise for any inconvenience it may have
    caused. On the 28th August 1999, the Claimant, Ms Fleming, who was 35 at the time, was
    seated in the back of a pick up truck driven by the Defendant, Mr Fleming. Ms Fleming fell
    out of the pick up when Mr Fleming was negotiating a corner and as a result suffered
    several injuries, some of which are permanent and she has claimed in this action damages
    for those injuries which she alleges were caused by the negligence of Mr Fleming. Mr.
    Fleming filed no defence to the Claim and Judgment in Default was consequently entered
    against him on the 23rd October 2002. An application to set aside this Judgment was later
    dismissed and the Parties were subsequently asked to file submissions as to the quantum
    of damages that should be awarded to Ms Fleming for her injuries and loss.
    [2] On the question of general damages. the law is settled. The case of Cornilliac v St Louis
    (1965) 7 WIR 491 is the locus classicus on this point and Wooding CJ set out the
    considerations to be borne in mind in assessing general damages;
    (a) The nature and extent of the injuries sustained
    (b) The nature and gravity of the resulting physical disability
    (c) The pain and suffering experienced
    (d) The loss of amenities if any
    (e) The extent to which pecuniary prospects are affected
    [3] Further, applying the principles in Heeralall v Hack Bros. (1977) 15 WIR 117, the law
    expects an award of fair compensation, fair to Ms Fleming for what has happened to her
    through the negligence of the Mr Fleming and fair for the Mr Fleming to pay for such
    negligence. Such damages cannot be perfect compensation, but it will be fair
    compensation for her injuries and for the social, economic and domestic consequences to
    her. I must consider therefore, the nature and extent of the injuries that Ms Fleming
    sustained and the effect that this has had on her health. I must also consider her past pain
    and suffering, any future pain and suffering that she will experience and any curtailment in
    her living that the injury has produced.
    [4J The first medical report submitted by Ms Fleming and prepared by Dr Madhu Thottambeti
    on the 8th August 2000, reveals that upon examination after the accident, Ms Fleming was
    “stuporous with Glasgow Coma – scale 11115” with external injuries as follows;
    “1. Eyelids were swollen and conjunctival congestion present over right side
    2. Punctured wound present over right side of face
    3. Abrasions over both wrists
    4. No bony or Body deformity was present. “
    Ms Fleming was released shortly after the accident and referred to the Surgical Clinic at
    the Out Patients Department of the Princess Alexandria Hospital. The medical history on
    the file reveals that Ms Fleming visited Dr Gibbs in St Martin on the 24th June 2000. At that
    time, his report states that when he saw her, she complained of amnesia, abnormal
    equilibrium, dizziness, falling down and facial pain. In conclusion in his report, Dr Gibbs
    stated that she had a fracture of the maxillary bone, occipital hematoma and a lesion of the
    face under the right eye. He diagnosed her with mental disorder describing Ms Fleming as
    “strange acting, talkative, disorganized, anemia” Dr Gibbs also diagnosed a neurological
    disorder as “dizziness, numerous falls, weakness, drowsiness” and stated that her
    disability was total, not being in any normal physical working condition.
    On the 16th December 2000, Dr Gibbs certified that Ms Fleming was suffering from a
    sequellae of skull brain traumatism with headaches and dizziness with blackouts and
    unconsciousness and that this was a disablement which was likely to remain permanent
    and hence that she was likely to remain permanently incapable or work as a result.
    [7] In the latest medical report on file from Dr Gibbs on the 28th August 2006, he states that
    clinical repercussions since the accident include dizziness, drowsiness, intermittent loss of
    memories, obesity and loss of monthly periods. He states that this is a consequence of
    severe cranial traumatism and refers to the reports submitted and mentioned herein
    before.
    Ms Fleming in a witness statement dated the 8th May 2003, speaks of the pain following
    the accident. She relates the problems she had with dizziness and falling down and
    difficulty in remembering things, she also talks of the loss of sensation in her hands and
    states that she has not menstruated since the accident. Ms Fleming also states that she
    has not been able to go back to work since the accident as she can not move around as
    she used to and is afraid of what she would do on a job. Prior to the accident, Ms Fleming
    states that she used to go dancing and that she no longer does this. She also states that
    she is unable to do much housework and cooking as she would drop things and has even
    burnt herself. She says she would love to go back to work but she is afraid of the
    “senseless stuff’ that she would do at the job. The quality of her life has undergone a
    dramatic change.
    [91 Counsel for the Defendant has filed very detailed submissions in relation to the quantum of
    damages and I have taken into consideration several factors which would necessarily
    exclude the points she makes in relation to the analysis of the doctors’ reports and Ms
    Flemings injuries.
    (a) The claim was not defended and hence there is no dispute of the facts or
    the evidence in support of the claim
    (b) CPR 2000 Part 10.6 details additional specific procedures to be followed
    in relation to the defence of a claim for personal injuries where medical
    reports are attached to the claim and are disputed
    (c) CPR 2000 Part 12.13 limits the matters to which a defendant can be
    heard unless a judgment in default is set aside to
    a. an application for default judgment where the claim is for some other
    remedy as the court considers the claimant to be entitled to on the
    statement of claim
    b. Costs
    c, Enforcement of the judgment
    d, The time of payment of any judgment
    (d) The defendant by consent in the order of the 12th December 2002, agreed
    to the admission of the doctors’ reports without the calling of the doctors,
    It is therefore not open to Counsel for the Defendant at this point to raise points on the,
    medical findings or qualifications of the doctors and as such these submissions will be
    disregarded to the extent that they question the credentials of the doctors or their
    diagnoses,
    [101 In all the circumstances, I consider as a reasonable award of general damages the sum of
    EC$80,OOO.00.
    SPECIAL DAMAGES
    Loss of Earnings
    [11 J Ms Fleming claims loss of earnings from the date of the accident on the 29th August 1999
    to the date of the filing of the claim on the 11 th October 2001, a period of 110 weeks. She
    claims that she earned EC$450.00 per week as a Restaurant Manager. She subsequently
    states in her witness statement of 8th May 2003 that at the time of the accident she was a
    restaurant assistant manager and that she earned between US$80.00 and US$120.00 per
    week service charge of approximately US$118.00 per month. A letter from the Social
    Security Board in May 2004 states that Ms Fleming’s earnings for the month of August
    1999 were EC$947.30 which suggests an average that month of EC$236.00 or US$87.00
    per week.
    [12] Counsel for the Defendant has referred me to the discrepancies in the evidence of the
    Claimant however, I am persuaded that whatever she did, she earned a salary at the time
    of her accident and the Social Security Board satisfies me that she was employed at
    Ripples at the time. I also accept Ms Fleming’s evidence that she earned service charge
    of approximately US$118.00 per month and set as a reasonable average, her weekly
    earnings, at US$90.00 per week. I would therefore average her weekly income inclusive
    of service charges at US$120.00 or EC$321.60 per week. Counsel for the Defendant did
    point out that there is no evidence that Ms Fleming attempted to work after the accident,
    however, the Claimant has exhibited a Medical Certificate of Permanent Incapacity for
    Work dated the 16th December 2000 and has received Invalidity Benefits from the Social
    Security Board from 18th December 2000 to May 8th 2004.
    [13J I therefore calculate Ms Fleming’s lost earnings between from time of the accident to the
    date of the filing of the claim to be in the sum of EC$33,446.40. From this sum I will
    deduct the invalidity payments paid to her from December 2000 to the date of the filing of
    the claim in October 2001 in the sum of EC$6,900.00, the final amount under this head
    being EC$26,546.40
    Traveling and medical expenses
    [14] Ms Fleming claims US$572.00 for twenty three return trips from Anguilla to St Martin as
    well as bus fares to and from the doctor’s office. She also claims medical expenses in the
    sum of EC$8, 11 0.22. Counsel for the Defendant submits that Ms Fleming has submitted
    no referral to see a doctor in St Martin. In addition she has submitted no evidence that she
    even traveled to St Martin. It does however appear from the medical reports of Dr Gibbs,
    that he saw her on the 9th September 1999 and the 16th December 2000. There is also
    evidence that Ms Fleming did a CT scan and chest X-ray and paid for these on the 11th
    September 1999 and also there are three receipts from a showing that Ms Fleming paid
    out $US 403.75 around that time in St Martin.
    [15] The evidence in support of the claim for these expenses is poor. It is unintelligible and has
    different writings on the prescriptions and it is difficult to say the least, to ascertain if, how
    or when if any payments were made. Some of the receipts pre date the actual incident
    and there is no evidence of travel expense. The claim is not sufficiently or satisfactorily
    proven to a great extent. Upon perusal of the evidence and having regard to the
    submissions, the following expenses will be awarded as special damages under this head.
    I accept that the Claimant did indeed St Martin to see Dr Gibbs, there is evidence that she
    [16J
    had seen this doctor before and to visit St Martin from Anguilla is not an unusually
    exorbitant way of life for most persons from Anguilla and as such I award the sum of
    US$200.00 or EC$533.60 as a reasonable award to meet the travel expenses.
    The following medical expenses will be awarded;
    (a) Hospital charges in Anguilla and 10% late fee EC$749.76
    (b) CT scan and chest X-ray US$191.00
    (c) Hospital charges in Anguilla EC$ 75.40
    (d) Prescription US$103.75
    (e) Doctor’s fees US$150.00
    (f) Full body scan US$150.00
    (g) Anguilla Hospital EC$ 16.50
    (h) Anguilla Dental Unit EC$ 15.00
    (i) Friendly Island Drug Store US$ 12.45
    (k) Anguilla Dental Unit EC$ 10.00
    (I) Friendly Island Drug Store US$ 25.35
    (m) Doctor’s fees US$650.00
    (n) Anguilla Hospital EC$10.80
    —————————————
    Total EC$877.46 US$1,282.55
    The accepted rate of exchange between the parties is 2.68. US$1 ,282.55 x 2.68 =
    EC$3,437.23. The award of special damages for medical expenses is EC$4,314.69 and
    when this is added to the award for travel expenses of EC$533.60, the total award under
    this head is EC$4,848.29
    Loss of Future Earnings
    [17] I accept the evidence of the Claimant and Dr Gibbs that she has been unable to work
    since the accident and is incapable of work in the future. The parties have agreed that a
    multiplier of 12 is acceptable in the circumstances taking into account the imponderables
    and vicissitudes of life. Ms Fleming’s earnings have been averaged at EC$321.60 per
    week which would amount to EC$1 ,286,40 monthly. Using a multiplier of 12, I would
    therefore calculate her loss of future earnings in the sum of EC1286,40 x 12 months x 12
    years in the total sum of EC$185,241.60. This figure is discounted to reflect the invalidity
    payments from November 2001 to May 2004 in the sum of EC$20,280.00 which amounts
    to EC$164,921.60. This figure is further discounted by 10% to take into account the lump
    sum payment which leaves a total award of EC$148,429,44.
    Future Medical treatment
    [18] The claim under this head is unsubstantiated by any evidence and as such an award is
    disallowed
    Interest and costs
    [19] Interest is awarded to a claimant in a personal injuries case on the sum awarded for
    special damages from the date of the accident to the date of the assessment. Interest on
    this sum is calculated from the date of the service of the claim form to the date of
    assessment at the rate of a short-term investment. After judgment, the claimant is entitled
    to the full amount awarded at the statutory rate of 5%.
    [20J Costs in this claim are as prescribed under Part 65.5(1) of the Civil Procedure Rules 2000.
    This claim was determined by default judgment on the 22nd November 2002. The damages
    to be awarded are EC$80,000.00 general damages, special damages of EC$31 ,394.69
    and loss of future earnings of EC$148,429,44 amounting to the sum of EC$259 ,824.13 in
    total. In keeping with Appendix B, costs amount to EC$47,482,41, which is to be reduced
    to 60% as the claim concluded prior to trial but included the assessment of damages. This
    amounts to costs in the sum of EC$28,489,45 which sum is further discounted in
    accordance with Civil Procedure Rules 2000, Parts 65.5(4) and 64.6(4),(5) and (6) to
    reflect time elapsed and non compliance by parties with the order for assessment to the
    sum of EC$20,000.00.
    Summary of Order
    [21] In summary, the following is the order on the assessment of damages:-
    The defendant will pay the sum of EC$80,000.00 as the global award for general
    damages to the claimant.
    2. The defendant will pay, in addition, the sum of EC$31 ,394.69 as special damages to
    the claimant for loss of earnings and medical and travel expenses
    3. Additionally, the defendant will pay future loss of earnings to the claimant in the sum of
    EC$148,429,44
    4. The defendant will pay interest at the rate of 3% on the sum of EC$31 ,394.69 from the
    date of the accident on 29th August 1999 to date of the hearing of the assessment on
    24th October 2006
    5. The defendant will pay interest on the total judgment sum of EC$259,824.13 at the
    rate of 5% per annum from 24th October 2006 until payment.
    6. The defendant will pay costs in these proceedings in the sum of EC$20,000.00
    CHERYL MATHURIN
    MASTER

    /celina-fleming-v-phoenix-fleming/
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