Lorraine Authier-Luke v Charmaine Poyer

• Jurisdiction: Barbados
• Judge: Mr. Justice Barry L. Carrington
• Judgment Date: 07 December 2020
• Neutral Citation: BB 2020 HC 65
• Court: High Court (Barbados)
• Docket Number: NO. CV 473 OF 2017
• Date: 07 December 2020

IN THE SUPREME COURT OF JUDICATURE

HIGH COURT

CIVIL DIVISION

Before

the Honourable Mr. Justice Barry L. Carrington, Judge of the High Court.

NO. CV 473 OF 2017

Between

Lorraine Authier-Luke

Claimant

and

Charmaine Poyer

(In her capacity as the named Executrix of the Estate of the Defendant Muriel Griffith, deceased.)

Defendant

Appearances:

Mr. Leslie Haynes Q.C. in association with Mrs. Denise Haynes for the Claimant.

Mr. M. Tariq Khan for the Defendant.

DECISION

Introduction

1 This matter involves an action under the Occupiers Liability Act for damages for a breach of the common duty of care and negligence arising out of an incident in which the Claimant, who was a tenant at the property of the deceased, fell into a well on the property where she remained for several hours before being rescued. She suffered serious injuries and received significant medical attention. Liability has been disputed and the court is called upon to determine liability and also whether or not the Claimant was contributorily negligent.

Background

2 Mrs. Lorraine Authier-Luke (“the Claimant”) at the time of the incident was seventy-three (73) years of age. The Claimant resides at No. 38 Blue Waters #2 in the parish of Christ Church.

3 Mrs. Muriel Griffith (“the deceased”) was at all material times the owner and landlady of the property located at No. 79 Beachy Head Drive, Crane Haven in the parish of St. Philip. She occupied the lower level of the said property.

4 The Claimant rented the upper level of the apartment of the said property from the deceased for approximately seventeen (17) years between the period of 1998 until 2015 for an estimated seven (7) months each year from October until May of the following year. The garden of the property was a common area available for use by the Claimant but was maintained by the deceased.

5 Charmaine Poyer (“the Defendant”) is the Executrix and Personal Representative of the estate of the deceased and against whom the claim is brought in her capacity as the named Executrix of the deceased, Muriel Griffith.

6 On or about the 12 ^th day of November 2015, at approximately 11:00 am, the Claimant was in the garden of the property attending to domestic chores. The Claimant noticed the deceased's dog in distress across from where she was and decided to go to it assistance. In so doing, she placed her right foot on a slab cover of a sewage well which collapsed causing the Claimant to lose balance and to fall into the said well. The Deceased was not at home at the time and it was only on her return that she discovered the Claimant in the well and called for assistance. The Claimant remained trapped until approximately 8:00 p.m. when personnel from the Fire Service were able to remove her from the said well.

7 As a result, the Claimant suffered multiple injuries including fractured ribs, fracture of the right forearm, comminuted fracture of the left head of the humerus, fracture of the left knee, severe abrasion on the side of the left ankle which became infected, multiple abrasions and breast contusion with infection. The Claimant thereby had to undergo numerous surgeries to rectify the above-mentioned injuries. Coupled with this was the need for follow up treatment inclusive of physical therapy and occupational therapy.

8 The Claimant was seen by health care professionals who provided Reports as follows:

Dr. Prasad Chode, Orthopaedic Surgeon

9 Dr. Chode's Reports were dated December 3, 2015 and July 29, 2016, respectively. The former report revealed that the Claimant suffered multiple abrasions to her body as a result of an accidental fall into a well on November 12, 2015. She had clinical examination and x-rays of the body which revealed: multiple abrasions to her entire back, abrasions to all the limbs, comminuted fracture of the left neck of the humerus, displaced fracture of the shaft of the right radius, ligamentous injury to the left knee.

10 Conservative treatment for left humoral fracture with support sling; physiotherapy to the left shoulder to be commenced in 3–4 weeks' time; open reduction and internal fixation (ORIF) of the right radial fracture; magnetic resonance imaging (MRI) of the left knee joint; dressings to the abrasions, were recommended.

11 On November 14, 2015, the Claimant underwent surgery to fix the right radial fracture and was discharged on November 15, 2015 with an appointment for magnetic resonance imaging (MRI) of the left knee. The results of the MRI revealed a mild depressed fracture of the lateral and medial tibial plateau. It also displayed tears to various regions inter alia, the medial meniscus with disruption of the medial meniscofemoral ligament, the lateral meniscus and lateral meniscofemoral ligament, the patellar tendon near the tibia and medial patellar ligament. Arthroscopy and repair of the ligament complex were advised coupled with the deferral of surgery until all abrasions were healed. This was because the blood investigations revealed increased white blood cell count and anemia. It was further advised that surgery be carried out as there was instability of the medial joint.

12 The Second report dated July 29, 2016, shows that Dr. Chode assessed the Claimant on even date. It was asserted that the sutures of the right forearm surgery were removed and the Claimant also underwent surgery to the left knee on December 7, 2015, where the medial joint arthrotomy was performed and the torn medial collateral ligament and meniscofemoral ligament were repaired. A cast was applied to immobilize the knee and the anterior cruciate ligament was intact.

13 The Claimant was reviewed on December 15, 2015, December 23, 2015 (where the cast to the left knee was removed); and on January 6, 2016, respectfully. Simultaneously, physiotherapy to the right forearm and the left shoulder was recommended. On February 18, 2016, the Claimant was reviewed and it was observed that she was still using the brace to the left knee and that left shoulder abduction was restricted to 40 degrees. The Claimant was guided to continue with physiotherapy sessions as the left knee showed restriction of flexion to 75 degrees, extension was full as were right forearm movements.

14 At the conclusion of the report, it was stated that the Claimant suffered multiple injuries about her body which included multiple abrasions which had to be dressed daily. The said injuries resulted in pain and made it difficult for the Claimant to sleep on her back throughout the initial 3–4 weeks following the accident. It was regarded that these had healed with minor scarring and the Claimant had suffered fractured ribs causing pain in the chest but healed without any residual effects. The fractured right radius fixed with plate and screws was also observed to have healed well. In relation to the fractured left shoulder, it was treated conservatively with a support sling and was healing well; though some restriction of movement was detected at the previous visit.

15 The depressed fractures of the tibial plateau of the left knee with complete rupture of the medial collateral ligament were repaired surgically and good healing was noted. However, on the last visit, restricted flexion was discovered. It was predicted that the Claimant was likely to develop posttraumatic osteoarthritis of the left knee, which required total knee replacement and the Claimant would likely suffer some degree of disability in using the left shoulder due to restricted abduction and rotations.

Dr. Ian Lewis, General Surgeon

16 Dr. Lewis' Report dated May 13, 2016, disclosed that he first saw the Claimant on the 15 ^th day of February 2016. It was noted that the Claimant was a case of node negative, oestrogen positive, early right breast cancer which was treated in 2011. The Claimant had sustained orthopaedic injuries as well as injury to the right breast area when she fell into a well. The Claimant reported experiencing soreness in the right breast area on bathing immediately after exiting the well. Two weeks later, “a hole” appeared at the inferior aspect of the breast with a “hard feeling” and healed within few days without active treatment. The area reopened the day prior to her first visit. There was no fever but the local pain in the breast was increasing.

17 An examination revealed that the right breast was smaller than the left breast. There was a healed incision to the upper inner quadrant. In office, ultrasonography revealed only skin thickening and no parenchymal lesions. Moreover, a wound swab did not reveal any bacteria or fungi, but pus cells. A core needle biopsy was done to the firmest area two days later and the results revealed inflammatory cells lining spaces and no malignancy. On February 26, 2016, incisional skin biopsies were performed to include the subcutaneous plane and an acute abscess with subepidermal keratin was seen histologically. A chest CT scan was conducted for further imaging of the breast area, as Dr. Lewis was unsure of the diagnosis and this revealed no tract or foreign body but a complex left humeral fracture which was noted. This investigation was the only suitable one available in Barbados and the breast was too tender at that time for mammography.

18 On March 15, 2016, a bilateral mammogram was performed with normal results and there was slow clinical improvement overall. The inferolateral aspect of the right breast had become more indrawn with intermittent discharge and it was emphasized that the skin biopsy sites had not healed. It was posited that the Claimant needed further surgical intervention in the form of excision and exploration under general anaesthesia. The Claimant agreed that this should be done, but in the USA.

19 Two biopsies and mammogram were ordered but failed to reveal any malignancies and were normal. Formal exploration and rebiopsy under a general anaesthetic were advised, as the breast was...