EASTERN CARIBBEAN SUPREME COURT
SAINT VINCENT AND THE GRENADINES
IN THE HIGH COURT OF JUSTICE
CLAIM NO. SVGHCV 2012/0138
BETWEEN:
(1] SHUNETIE THOMPSON
[2] RONISHA FOYLE by mother and next friend
SHUNETIETHOMPSON
Before:
Ms. Agnes Actie
[3) LATICIA FOYLE by her mother and next friend
SHUNETIE THOMPSON
Claimants
and
[1] OWEN JONES
[2] DESMOND LEWIS
Defendants
Master [Ag.]
Appearances:
Ms. Patricia Marks for the claimants
Ms. Mandella Campbell for the first defendant
2014: June4;
August 5.
JUDGMENT
[1] ACTIE, M. [AG.]: Before the court is an application for assessment of damages.
Background
[2] The claimants sustained injuries on 13th September 2010, when a motor vehicle
owned by the first defendant and driven by the second defendant struck the
claimants whilst they were walking along the Chauncey main road.
[3] By order dated au~ August 2012, the claimants obtained judgment in default of
defence for special damages 1n the sum of $13,112.10 with general damages to
be assessed. The claim was discontinued against the second defendant.
General Damages
[4] The general damages to be awarded to the claimants are to be assessed on the
basis of the principles set out by Wooding CJ in the seminal case of Cornilliac v
St Louis1.
The nature and extent of the injuries
[5] The nature of the claimants injuries are outlined in several medical reports and in
witness statements.
(a) Shunette Thompson
The first claimant was 29 years old and 5 months pregnant at the time of the
accident. She was transported to the Milton Cato Hospital and admitted to the ICU
department. The medical report of Dr. Peter Kabala dated 26th October 2010
summarises the injuries as follows:
• 6 em deep laceration to frontal region
• Clots in vaginal vault
• Abrasions/small laceration noted on both knees
The claimant underwent surgery for wound exploration and delivered a still birth.
She was transferred to the female surgical ward where she complained of
headaches and pains all over her body especially her hips. She travelled to
Grenada for a CT scan where a fracture of the left orbit was noted. The claimant
was discharged on 29th October 2012, 9 days after the accident.
1 Cornilliac v StLouis (1965) 7 WIR 491
2
(b) Ronisha Foyle
The second claimant 4 years old at the time of the accident was admitted to the
children’s ward and was discharged on 21 51 September 2010. The medical report
of Dr. Tyasha Plummer dated 41h October 2010 diagnosed her injuries as follows:
• Mild closed head inJury
• Right lung contusion
• Blunt abdominal trauma with renal injury
• Bilateral proximal humeral fractures
• A scalp laceration.
(c) Latesia Foyle
The third claimant 2 years old at the time of the accident suffered multiple
superficial bruises to the face and head. The medical report of Dr. Tyasha
Plummer dated 4th October 2010 diagnosed her injuries as follows:
• Severe head injury
• Bilateral lung contusions
• Blunt abdominal trauma with splenic, likely hepatic and pancreatic injury
and renal injury.
The third claimant remained unconscious until 20th September 2012. She had
weakness on her left side and her lower limb. The claimant was sent to Grenada
on 22na September 2012 for a CT Scan. She showed improvement on her return
but residual left side paresis was noted.
The nature and gravity of the resulting disability
[6] (a) Shunette Thompson · The claimant in her witness statement states that she
continues to suffer pain and stiffness of the neck and her left knee. The clamant
also continues to experience pain about her body on a daily basis. The claimant
submits that she gets tired easily and has difficulty standing for long periods as her
legs become swollen. She also complained of pain in the cervical area. On initial
evaluation she was ambulatory with her neck tilted towards the right. She needed
one minimum assist for her daily activity and manages her mobility with difficulty.
3
(b) Aonisha Foyle- the medical report states that the second claimant injuries are
much improved but she has been left with scars about her body. She has a large
raised or keiloid scar on her leg. There is also a scar along the left side of her face
from her scalp to her eyebrow. The claimant continues to complain of headaches
and pain in her arms which were both broken 1n the acc1dent.
(c) Latesia Foyle – the medical evidence states that the claimant was found to
have weakness. increased tone and full passive range of motion of the left upper
and lower extremities. Her ability to reach for and grasp objects with her left
extremity was poor. She dragged the left lower extremities and was only able to
walk with support from her parents. The physiotherapy report in June 2011
indicated an improvement of reach and grasp of the left upper extremity. She no
longer needed the support to walk but still drags the left lower limb with persisting
weakness in her left hand. She has difficulty walking and running and constantly
falls. The evidence reveals that the claimant has numerous raised keloids scars
about her body including her leg and shoulder. She also has difficulty speaking
and is now unable to pronounce some words which she could have done prior to
the accident.
Award of geMral damages for Pain and Suffering and Loss of Amenities
[7] The first, second and third claimants seek awards of the sums of $80,000.00,
$50,000.00 and $70,000.00 respectively for pain and suffering and loss of
amenities. In support, the claimants rely on the authorities of Rashid Piggot v
Galeforce Windows & Doors lnc2 and Mercedes Delplesche v Samuel
Emmanuel De Roche3.
[8] In Rashid Piggot, the claimant 42 years old was struck on his head by a 20 foot
metal reinforcement steel frame when he was assigned to assist with the offloading
of materials from a container. The claimant was knocked temporarily
unconscious and taken to hospital for treatment. The claimant claimed to have
2 ANUHCV2004/0069 delivered on 11th January 2007.
3 SVGHCV2012/0041 delivered 19th Apri/2013.
4
continued suffering excruciating and constant pain in his head, chest and shoulder
and was advised t11at he would have to live on pain killers for the rest of his life.
He also had to reduce to less demanding type of employment as a result of his
injuries. The court awarded the sum of $50,000.00 for pain and suffering and loss
of amenities.
(9] In Mercedes Delplesche v Samuel Emmanuel De Roche the claimant, 54 years
of age was standing on the side walk where she was struck by a motor vehicle.
The claimant was admitted at the Milton Cato Hospital and discharged 4 days later
and continued physiotherapy sessions. The claimant suffered (a) trauma to head
and left knee (b) abrasions to face (c) laceration to forehead, nose and lower lip
and (d) Bleeding from nostril. The claimant continued to suffer from severe pains
in her lower back, head and knee and had difficulty walking. The court awarded
the sum of $65.000.00 as general damages for pain and suffering and loss of
amenities.
[10] The defendant submits that the first claimant’s injuries are comparable to those of
the claimant in the Mercedes Delplesche’s case and suggests an award of
$70,000.00 taking into account the grief suffered in relation to the loss of her
unborn child. The defendant further submits that an award in the sums of $30.000
and $40,000.00 are reasonable sums to be awarded to the second and third
claimants respectively for pain and suffering and loss of amenities. The defendant
in support cited the following cases:
(1) Danny Bramble v William Danny and Key Properties Limited4
(2) Nigel Mason v Maundays Bay Management Ltd (trading as Cap Juluca
Hotels
(3) Leantha Pacquette Lewis v Irvin Durand 6
4 ANUHCV199.0160 delivered on 151h January 2004.
5 AXAHCV2006/0090 delivered on 23•d June 2009.
6 DOMHCV 2011/0341 delivered on 3Qih April 2013.
5
[11] In making the award for general damages I am reminded by the principles
enunciated by Lord Hope of Craighead in the House of Lords case of Wells v
Wells3 where he said:
“The amount of the award to be made for pain, suffering and loss of
amenity cannot be precisely calculated. All that can be done is to award
such sum, within the broad criterion of what is reasonable and in line with
similar awards in comparable cases, as represents the court’s best
estimate of the plaintiff’s general damages.”
The first claimant- Shaunette Thompson
(12] The first claimant endured the loss of her unborn child and also suffered head,
neck, back, knee and other injuries. She was rendered unconscious on impact of
the accident and when recovered was in pain and became upset on hearing of the
injuries of her children and loss of her unborn child. The first claimant states that
she was a normal healthy woman prior to the accident. Presently she is selfconscious
of her appearance due to her scars and the titling of her head. The first
claimant alleges to be experiencing weakness in her legs and has difficulty
standing for long periods. She has difficulty carrying out her usual everyday
activities and relies heavily on her common law husband for help personally and
with her children.
[13] The first claimant seeks the sum of $50.000.00 for the trauma and stress suffered
as result of loss of her unborn child along with an award of at least $80,000.00 for
pain and suffering and loss of amenities. The first claimant cites the authority of
Jacqueline Pena et al v British Islands Health Services Authority7 in support
of claim for trauma and stress for the loss of her unborn child. In that case, the
claimants claimed damages against the defendant for the wrongful disposal of
their baby’s body. The claimants had consented to a post mortem examination to
determine the cause of death of their baby who died soon after delivery. The
baby’s body was disposed by cremation in error at the end of the post mortem
without the consent of the claimants. The claimants were awarded damages for
the psychiatric injuries suffered as a result of the wrongful burial of their baby.
7 BVIHCV2012/01 01 Delivered on May 22.2013
6
[14] The defendant in the case at bar opposes the claim for psychiatric injury and
submits that the first claimant has not prov1ded any medical diagnosis or
psychiatric evaluation in support of the claim for damages for the alleged stress
and trauma suffered as a result of the loss of the baby. The defendant cites the
text, Personal Injury Law Liability Compensation and Procedures where the
author Peter Barrie states:
“The normal human emotions of grief, distress. anger and unhappiness lie
outside the scope of common law compensation. It is true that an award of
damages for pain and suffering and loss of amenity will include an
element for the unhappiness of undergoing the consequences of an
injury … But in a claim for psychiatric injury the claimant must prove the
presence of a recognised psychiatric illness in order to be entitled to
compensation. The distinction is generally made by assessing whether the
claimant has a diagnosis of psychiatric illness according to one of the
diagnostic manuals .. ”
The text citing the case of Mcloughlin v O’Brien where Lord Bridge said:
‘1he common law gives no damages for emotional distress which any
normal person experiences when someone he loves is killed or injured,
anxiety and depressions are normal human emotions. Yet an anxiety
neurosis or a reactive depression may be recognisable psychiatric illness,
with or without psychosomatic symptoms. So the first hurdle which the
claimant claiming damages of this kind in question must surmount is to
establish that he is suffering not merely grief, distress or any other normal
emotion, but a positive psychiatric illness.”
[15] I accept the defendant’s submission that the claimant has not provided a scintilla
of medical evidence on which basis to make a separate award for stress and
trauma suffered for the loss of her unborn child. However there is absolutely no
doubt in my mind that the first claimant suffered emotional stress and pain
occasioned on the loss of her unborn child. I have reviewed the evidence and
authorities cited by the parties and I am inclined to rely on the authority of
Mercedes Delplesche v Samuel Emmanuel De Roche emanating from this
jurisdiction in which the circumstances are somewhat similar to the facts and
injuries suffered by the first claimant. In determining an appropriate award I take
into consideration that the claimant is younger than the claimant in the Mercedes
8 2nd edition Oxford University Press (2005) at page 349- Paul Barrie
7
case. In the absence of medical evidence to make a separate award for stress
and trauma I make an elevated award of $80,000.00 for pain and suffering and
loss of amenities taking into consideration the obvious trauma and grief that the
first claimant suffered upon the loss of her unborn child and the injuries to her two
children in such sad circumstances ..
The second and third claimants
[17] The second and third claimants seek the sums of $50.000.00 and $70,000.00
respectively for pain and suffering and loss of amenrties. The defendant in reply
urged the court to make awards of $30,000.00 and $40,000.00 respectively
instead.
[18] Both the 2nd and 3rct claimants are minors. The second claimant was 4 years old
and the third claimant was 2 years old, at the time of the accident. In an
assessment of damages the court must strive for a high measure of uniformity in
making awards in comparable cases. The parties have not provided any authority
in relation to damages suffered by minors. In Sheena David et al v Kingston
Bowen et al9, the claimants were 16 and 12 years old respectively when they
suffered injuries to their head and neck in a motor vehicular accident. Both
claimants suffered neck pain and lower back pains. In that case both the parties
and the court acknowledged the paucity of authorities on injuries involving
children, and even greater paucity with those resulting in neck and back pain to
allow for comparative analysis. Master Taylor-Alexander in the Sheena David’s
case awarded the sum of the sum of $37,000.00 to the first claimant and the sum
of $35,000.00 to the second named claimant for general damages for pain and
suffering and loss of amenities.
Ronisha Foyle
[19] The second claimant suffered two broken arms and head injuries at the time of the
accident. She is still experiencing weakness in her arms and suffers headaches.
9 GDAHCV2007/0055 delivered 7th June 2013
8
She has keloid scars about her body and on her face which will affect her
appearance and will become more conscious of when she grows up. The medical
evidence reveals that the second claimant has recovered well from the injuries
suffered at time of the accident but has been left with scars about her body with
one prominent scar on her face from her scalp to eyebrow and a large keloid scar
on her leg. She continues to experience headaches and pain and weakness in
her two arms, they having been broken at the time of the accident. No evidence
was given as to the likely future impact that the injuries may have on the claimant
pecuniary prospects in keeping with the Corniliac principles. However I consider
that the permanent facial scar, keloids and continuous pains in her arms will likely
affect the claimant in the future. In the circumstances I make an award of
$35,000.00 for pain and suffering and loss of amenities to the second claimant.
[20] The third claimant suffered severe head injuries and a skull fracture. She was
rendered unconscious and remained in a coma for a number of days after the
accident. She has difficulty with her mobility due to the dragging of her left leg,
weakness on her left side, and has permanent keloids scars about her body. She
also has speech deficiency. The claimant has weakness in her left side and
difficulty walking and running as she drags her left leg. The third claimant also has
difficulty in speaking. Upon review of the totality of the evidence and taking into
consideration that her injuries were a lot more severe than the second claimant
and the injuries in the Sheena David’s case, I make an award of $50,000.00 to
the third claimant for pain and suffering and loss of amenity.
Nursing Care
(21] The claimants seek an award of $5,000.00 for each claimant for nursing care. The
claimants alleged that since the accident Mr. Roland Foyle, the common law
husband of the first claimant and the father of the second and third claimants, has
been providing nursing care for the family. The claimants rely on the dictum in
Donnelly v Joyce10 where it was stated:
10 (1973) ALLER 475
9
“In an action for personal injuries in an accident, a plaintiff was entitled to
claim damages in respect of services provided by a third part which were
reasonably required by the plaintiff because of his physical needs directly
attributable to the accident: the question whether the plaintiff was under a
moral or contractual obligation to pay the third party for the services
provided were irrelevant; the plaintiff’s loss was the need for those
services, the value which, for the purpose of ascertaining the amount of
his loss, was the proper and reasonable cost of supporting the plaintiff’s
need.”
[23] The defendant although not disputing that the cla1mants are entitled to a
reasonable sum in respect of nursing care submits that the claimants have failed
to provide the basis in arriving at the respective sums of $5,000.00 for each
claimant. The defendant urged the court to pay a total sum of $5,000.00 as a
reasonable award in the circumstances. The defendant ask the court to bear in
mind the dictum of Dillon L.J in Mills v British Rail Engineering Ltd 11 where he
states that an award under this head is made in respect of “care by relative well
beyond the ordinary call of duty for special needs of the sufferer”.
The defendant submits that some discount ought to be applied to take into
account the fact that Mr Foyle would have been assisting with household chores
and the care of his common law spouse and children in any event.
[24] I am of the view that Mr. Foyle is entitled to compensation for nursing care. The
injuries suffered by his common law wife and two children would indeed have been
and continues to be an additional burden on his daily chores. Having regard to the
nature of the injuries broken limbs, head injuries, stiffness of the neck and other
injuries suffered by the claimants I make an award of $8,000. 00 for nursing care
in favour of Mr. Roland Foyle.
Special Damages
[25] The claimants claimed the sum of $13,112.10 as special damages of which the
sum of $12,554.60 was paid by the first defendant’s insurers. The claimants now
seek the balance of $857.50 of the sum claimed together with an additional sum of
11 (1992) P.l. O.R. 0130 at 0137
10
$375.00 for medical reports and consultation fee since the payment making a total
of $1232.50. The defendant does not object to the amount claimed.
Order
[26] In summary I make the following awards:
(1) An award in the sum of following sums of $80, 0000. 00 for general damages
for pain and suffering and loss of amenities for Shaunette Thompson, the first
claimant, with interest at the rate of 6% from the date of service of the claim to
the date of judgment on assessment.
(2) An award in the sum of $35,000.00 to Ronisha Foyle, the second claimant, for
general damages for pain and suffering and loss of amenities with interest at
the rate of 6% from the date of service of the claim to the date of judgment on
assessment.
(3) An award in the sum of $50, 000.00 to Laticia Foyle, the third claimant, for
general damages for pain and suffering and loss of amenities with interest at
the rate of 6% from the date of service of the claim to the date of judgment on
assessment.
(4) An award in the sum of $8.000.00 for nursing care.
(5) Special damages in the sum of $1232. 50 with interest at the rate of 6% from
the date of the judgment of assessment until payment.
(6) Prescribed costs to the claimants in accordance with CPR 65.5 as amended.
-A: ne~s :Actie
11