Joncelyn Forde v The Barbados Transport Board

• Jurisdiction: Barbados
• Judge: Richards, J.
• Judgment Date: 31 March 2025
• Neutral Citation: BB 2025 HC 12
• Court: High Court (Barbados)
• Year: 2025
• Docket Number: CV 1984 of 2009

Joncelyn Forde

and

The Barbados Transport Board

Richards, J.

CV 1984 of 2009

High Court

Appearances:

Mrs. Shontelle N. Murrell-Hinkson, Attorney-at-Law of George Walton Payne & Company for the Claimant.

Sir Elliott D. Mottley Q.C., Ms. Olivia dos Santos and Mr. Kashka Mottley, Attorneys-at-Law of Elliott D. Mottley & Co. for the Defendant.

Mrs. Destine Simmons-Beckles, Ms. T. Simmons and Ms. D.A. Jones Attorneys-at-Law with a watching brief for CGI.

DECISION

INTRODUCTION

Richards, J.

1 This is an application for an assessment of damages for personal injuries. The Defendant admits that its servant or agent negligently caused the accident in which the Claimant was injured.

FACTUAL BACKGROUND

2 On 12 February 2007, the Claimant was a standing passenger on the Defendant's Speightstown to Sam Lord's Castle motor omnibus, BM 103. The bus was travelling along Tweedside Road, heading towards Welches, when it was involved in a collision with another vehicle. As a result of the impact, the Claimant was injured.

3 The Claimant was taken by ambulance to the Queen Elizabeth Hospital (“QEH”), where she was treated and discharged. Over the years she was seen by a number of medical doctors with unresolved pain issues. She was prescribed various medications, and she also attended a physical therapist and a pain management specialist.

4 Since the accident, the Claimant has not returned to work. She was declared to be permanently disabled, and she received payments from National Insurance.

THE PLEADINGS

5 In her Re-Amended Statement of Case, filed on 08 July 2010, the Claimant alleged that a violent collision was caused by the negligence of the Defendant, its servant and/or agent. She further alleged that as a result of this negligence, she sustained injuries and suffered loss and damage. The particulars of her injuries are:

• 1. soft tissue strain/spasm to the neck and lower back;

• 2. multilevel spondylosis of the neck region;

• 3. multilevel spondylosis of the cervical spine;

• 4. multilevel lumbar degenerative disc disease with facet joint arthritis; and

• 5. extensive degenerative disc disease of the lower back.

6 The Claimant relied on various medical reports and a physical therapy report. Her claim for damages included general damages, special damages in the sum of $8,033.55, interest, costs, and any further or other relief.

7 The Defendant filed its Amended Defence on 13 August 2010. It admitted that the accident was caused by the negligence of its servant/agent. However, the Defendant denied that the collision was violent. In addition, the Defendant denied the injuries, loss or damage claimed.

8 The Defendant pleaded that the Claimant's injuries were attributable to preexisting degenerative disease. In this regard, the Defendant relied on an MRI report of Dr. G.F. DeCaires, and the medical reports of Drs. R. Carrington and P. Chode. Alternatively, the Defendant pleaded that, in so far as any injuries to the Claimant were caused by the Defendant's negligence, the Claimant had failed to mitigate her loss by her failure to:

• 1. seek physical therapy in a timely fashion;

• 2. attend physical therapy consistently;

• 3. continue or otherwise engage in an exercise and weight loss programme involving core strengthening; and

• 4. fully participate in physical therapy throughout January 2008.

9 On 15 March 2022, senior counsel for the Defendant informed the Court that the Defendant was no longer relying on its mitigation defence.

THE ISSUE FOR RESOLUTION

10 The parties agree that, in light of the medical evidence, the Claimant had preexisting degenerative disease at the time of the accident. A post-accident MRI and an Xray revealed multilevel spondylosis of her neck and cervical spine. There was also multilevel lumbar degenerative disc disease with facet joint arthritis. These indicators of preexisting spondylosis and degenerative disc disease confirmed that the accident was not the cause of the Claimant's spondylosis and degenerative disease. Therefore, the only issue left before the Court is to what extent, if any, is the Defendant responsible for the Claimant's injuries, in particular her ongoing pain issues.

11 It is the Claimant's case that even if the Defendant was not responsible for her pre-existing condition, the accident triggered the onset of debilitating pain from that condition. Additionally, it is contended that her ongoing pain is due in part to the muscular injury caused by the accident. That pain continues to this day, and has curtailed her work life. The Defendant's response is that the Claimant's injuries should have resolved in six weeks from the date of the accident. And even if the accident exacerbated the Claimant's preexisting condition, this too should have resolved within six weeks.

THE MECHANISM OF INJURY

12 There is a dispute as to how the Claimant sustained her injuries at the time of the accident. The Court is required to make findings of fact, in relation to the mechanism of injury, before it determines the extent of any injuries and loss to the Claimant. Except for alleging a violent collision, that occasioned injuries, loss and damage, the Re-Amended Statement of Claim does not say precisely what happened to the Claimant when the accident occurred.

13 The Claimant filed three witness statements; two on 20 December 2011, and the third on 17 July 2012. In one of the December 2011 affidavits, she alleges that:

• “4. I was a standing passenger in the said bus. To the best of my knowledge, there was a van in front of the bus which stopped, and the bus collided into the rear of the van.

• 5. I hit my forehead on the bus and immediately felt pain in my neck and back. My fingers also felt numb. I recall being taken to the [QEH] by ambulance where I was treated and discharged.”

14 The December 2011 affidavits were filed nearly five years after the accident. The second December affidavit is described as “… a supplemental Statement with respect to my physical injuries and medical management as a result of my accident.” (At para. 1). The second affidavit annexes four reports. They are two medical reports from Dr. I. Branker, one report by Mr. W. Seale, and a physiotherapy report by Ms. S. Reece.

15 At the trial, the Claimant identified her three affidavits. She was then tendered for cross-examination. There is no oral evidence from the Claimant as to exactly how she received her injuries.

16 Dr. Branker's first report is dated 02 February, 2009. His consultations with the Claimant began ten days after the accident. Dr. Branker's report contains a scenario he received from the Claimant.

“Around 7:15 am, a van stopped suddenly in front of the bus. It was raining at the time and the bus collided with the rear of the van. [The Claimant] was standing by the door holding on to the vertical rail. At impact she was thrown forward hitting her head onto the rail that she was holding. There was an instant headache and she felt dizzy but did not fall. Her hand slipped [off] the rail by the impact and she was thrown backward onto a standing passenger and felt [a] sudden pain in her lower back.” (Para. 2 on page 1 of report).

17 Dr. Branker gave no oral evidence pertaining to the mechanism of the Claimant's injuries. His second report, dated 22 February 2010, does not address this point. Both of the reports were accepted into evidence by the defence.

18 The report of Mr. Seale, dated 28 December 2009, was accepted in evidence by the Defendant. This doctor was deceased when the trial commenced. He stated that the Claimant reported to him that:

“… on February 12, 2007 she was travelling in a bus on her way to work, when a van stopped suddenly in front of the bus, and the bus collided with the van. She felt acute pain in her neck and the back and her fingers felt numb.”

19 Ms. Solita Reece is a registered physical therapist. The Claimant attended physical therapy sessions with Ms. Reece from 19 July 2007. Ms. Reece records that the Claimant stated that:

“… she was experiencing the above mentioned symptoms only since February 12, 2007, when the transport board bus in which she was a standing passenger struck a van that was in front of it causing her body to jerk and she hit her head on a rail.”

Ms. Reece gave no oral evidence, but her report was accepted by the defence.

20 The Claimant's affidavit of 17 July 2012, annexed a medical report authored by Dr. H. Moseley, and dated 20 March 2012. He first saw the Claimant at the QEH on 13 April 2010. The version of the accident and injuries that he recorded is that:

“[The Claimant] was standing in a bus as a passenger which came to a sudden stop after colliding with the vehicle that was in front of it on the 12th February 2007. [The Claimant], upon impact was thrown forward and backwards hitting her head. She reports that she lost consciousness for about 2 seconds after which she began to experience lower back and neck pains.” (Page 1).

21 Dr. Moseley referred to this version during cross-examination. He was not challenged as to the accuracy of his notes in this regard. The final doctor who provided a report and evidence on behalf of the Claimant was Dr. G. Drakes, a pain specialist.

22 Dr. Drakes was consulted initially on 16 March 2015, eight years after the accident. His report is dated 10 January 2016 and details the mechanism of injury as follows:

“[The Claimant] gave a history of pain beginning on February 12, 2007 after she was involved in a road traffic vehicular accident. She described being the passenger on a bus that was travelling in the rain. She was standing at the time of the incident and indicated that this bus slid on the wet road surface and ran into the back of the van. She described being thrown forcefully forward hitting her head on the rail and then was thrown backwards.” (Pages 2–3).

23 There is a striking similarly between the scenarios...