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