Adrian King v Attorney General
| Jurisdiction | Barbados |
| Judge | Mr. Justice Westmin R.A. James |
| Judgment Date | 12 December 2022 |
| Neutral Citation | BB 2022 HC 44 |
| Docket Number | CLAIM NO. CV 0326/2007 |
| Court | High Court (Barbados) |
| Year | 2022 |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL JURISDICTION
The Hon. Mr. Justice Westmin R.A. James, Judge of the High Court
CLAIM NO. CV 0326/2007
Mr. Shane A. O. Thompson, Attorney-at-Law for the Claimant
Ms. Marsha Lougheed, Attorney-at-Law for the Defendant
The Claimant who was bom on 23 rd August 1964 and is currently 58 years old, filed a claim by way of Writ of Summons on the 23 rd day of February, 2007 claiming, injury loss and damage for an accident which occurred on 25 th February, 2004 at the then Her Majesty's Prison Dodds, Dodds in the parish of St. Philip.
The Claimant claimed damages for the following Heads of Loss:
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i. General Damages for Pain and Suffering and Loss of Amenities
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ii. General Damages for Past Domestic Assistance
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iii. General Damages for Future Domestic Assistance
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iv. General Damages for Past Loss of Do it Yourself Activity (DIY)
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v. General Damages for Future Loss of DIY
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vi. General Damages for Future Loss of Earnings
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vii. General Damages for Disadvantage on the Labour Market
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viii. Special Damages (Medical, transportation and other expenses)
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ix. Interest x. Costs
The Defendant has never filed a Defence in the matter.
The matter first came up before this Court in April 2022 and the Defendant was given an opportunity to locate the file and take instructions. On 13 th May 2022, when this matter came up before this Court for further Case Management, there being no Defence forthcoming, Judgment was entered in favour of the Claimant against the Defendant with damages to be assessed.
This Court gave directions for the assessment of damages including the filing of witness statements and memorandums of quantum. The Claimant filed its witness statements and submissions relative to quantum but the Defendant, though given the opportunity, did not file any memorandum of quantum.
On 21 st November 2022, the matter came on for the Assessment of Damages. Counsel for the Defendant consented to the evidence of the Claimant and the Claimant's witnesses (Solita Reece, Dr. Jerry Thome, Dr. Jeffrey Gay, Velda Whitehall, Trina Carter, Vincent Brathwaite) contained in their witness statements, being entered into evidence as their evidence in chief. Counsel for the Defendant opted not to cross-examined any of the witnesses.
The sole issue before the Court now is the quantum of damages to be awarded to the Claimant in this case.
The Court will now proceed to address each head of loss in turn.
The Claimant claims $55,000.00 under this head.
The medical evidence concerning the Claimant's injuries that I considered in assessing the quantum of damages for pain and suffering is as follows:
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• MRI Report of Dr. G. F. DeCaires dated June 3, 2008
The MRI revealed Supraspinatus tendinopathy and a tiny inferior pointing spur on the acromion process which was suggestive of a possible impingement syndrome.
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• Medical Report of Dr. Jerry A. W. Thome dated October 27, 2008
Dr. Thorne noted in his report that an arthroscopic examination of Mr. King's right shoulder found a large deep bankart lesion extending from the 11 to 6 o'clock position. He stated that it was evident that Mr. King suffered a forceful anterior subluxation of the right shoulder with a creation of a bankart lesion. He suggested physiotherapy or self-orthotherapy to relieve Mr. King's recurrent discomfort, acute impairment and disability. In the absence of improvement, then a bankart repair was suggested,
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• Physiotherapy report of Ms. Solita Reece dated 25 th July 2014
Ms. Reece stated in her report that up to the last date on which Mr. King was seen by her, Mr. King had not recovered the full range of motion in his right arm subsequent to a series of surgeries and he would have benefited from an additional two (2) months of therapy.
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• Addendum to Medical Report of Dr. Jerry Gay dated 30 th July 2020
Dr Gay stated in his report that the radiological study of Mr. King's right shoulder noted both calcite supraspinatus tendinopathy and moderate osteoarthritic degenerative changes of the shoulder. He further stated that these changes were possible complications of a rotator cuff injury and are incurable and associated with chronic/recurrent often severe shoulder pain brought about by repetitive use or sometimes reaching over the head. Dr. Gay opined that Mr. King will continue to have chronic symptoms of his right shoulder that can eventually affect his left shoulder because of overuse. He further opined that on that basis, Mr. King will require future doctor visits, physiotherapy, intermittent assessments and orthopaedic reviews. He further stated that the injury will affect Mr. King in every area of his day to day life, including his job.
I have considered the witness statement of the Claimant and the medical reports. I also looked at the Judicial College Guidelines (16 th edition, 2021) under the various categories of injury but examined more intensely the guidelines for shoulder injuries, serious injuries, C(B). Under the Guidelines, the following are usually the types of injuries or symptoms and effects considered under this part:
“Dislocation of the shoulder and damage to the lower part of the brachial plexus causing pain in shoulder and neck, aching in elbow, sensory symptoms in the forearm and hand, and weakness of grip or a fractured humerus leading to restricted shoulder movement. Cases of rotator cuff injury with persisting symptoms after surgery will usually fall within this bracket, as will cases of soft tissue injury where intrusive symptoms will be permanent”
Injuries under this part range from £12,770.00 to £19,200.00 which converts to $38,310.00 to $57,600.00, Barbadian dollars using a conversion rate of £1 = $3.00 BDS.
I have considered the cases that were recommended to me by counsel from the Kemp v Kemp cases: X v Multi Servies Kent Ltd (2019), Chana v Lipa (2012), Ramage v Ho (2007) and Brooks v Camden London Borough Council (2004), and found them to be of assistance in comparison and are consistent with the Judicial College Guidelines.
I also considered the following facts: the Claimant had three surgical interventions; still experiences pain 18 years post-accident, 11 years post-surgery; the injuries will affect his life permanently, including affecting his continued employment; due to the pain from the injury the Claimant still requires sick leave, domestic assistance, future medical and health care; and is unable to perform certain activities.
In all of the circumstances I will award the sum of $55,000.00 under this head.
A Claimant is entitled to recover the reasonable and proper costs of the services gratuitously rendered to him. This principle was approved by the House of Lords, speaking through Lord Bridge in Hunt v Severs [1994] 2 A.C. 350, 358:
“The law with respect to the services of a third party who provides voluntary care for a fortiously injured plaintiff has developed somewhat erratically in England. The voluntary carer has no cause of action of his own against the tortfeasor. The justice of allowing the injured plaintiff to recover the value of the services so that he may recompense the voluntary carer has been generally recognised, but there has been difficulty in articulating a consistent juridical principle to justify this result.”
The cases of Mayers v Transport Board and Holder BB 2005 HC 27, Atkins v Mika Inc. BB 2014 HC 62, Timothy Gibson v Milton King BB 2020 HC 13, Allan Francis v Andy Brathwaite HC. Suit No. 1847 of 2014 (decided 13th December 2019) Lorraine Authier-Luke v Charmaine Poyer BB 2020 HC 65, have accepted this principle in Barbados.
Besides the medical evidence the witnesses' statements confirm that due to the injuries and the subsequent surgeries, the Claimant would have received and still receives this gratuitous care from friends and family members alike 18 years post the accident.
In Allan Francis v Andy Brathwaite H.C. Suit No. 1847 of 2014 (decided 13 th December 2019) and Lorraine Authier-Luke v Charmaine Poyer BB 2020 HC 65 the amount of $45.00 per day has been used.
The Claimant has accepted that it would be nigh impossible to fully account for each and every occasion this care was provided given the ebbs and flows of the injury, to fully account for each and every occasion this care was provided. It is the Claimant's case and he must prove. In this regard the Claimant has proposed 3 1/2 days per week for 18 years ($45.00 (daily rate) x 3,285 days (approx. 9 years) for a sum of $147,825.00.
Having regard to the injuries and the surgeries, I think 3 days a week is reasonable in the circumstances. I therefore award $45.00 (daily rate) x 3 x 982 weeks (approx. 18 years 10 months).
I therefore award the sum of $132,570.00 under this head.
The Claimant claims $131,400.00 under this head of...
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