Bagnall v Mills

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Hylton, J.
• Judgment Date: 01 June 1993
• Neutral Citation: KN 1993 HC 11
• Docket Number: No. 2/179 of 1992
• Date: 01 June 1993

High Court

Hylton, J.

No. 2/179 of 1992

Bagnall

and

Mills

Appearances:

Dr. Henry Browne for the plaintiff

Messrs. E. Ferdinand and D. Kelsick of Keisick, Wilkin and Ferdinand for the defendant.

Tort - Damages — Personal injury.

Hylton, J.

1 By consent of the parties the issue of liability was determined prior to the assessment of Damages (See Judgment dated 22 ^nd April, 1993).

2 On 5 ^th May, 1993 the plaintiff adduced evidence of the injuries which he sustained in support of his claim which was pleaded in the Writ filed on 13 ^th August, 1992 as follows:–

PARTICULARS OF INJURIES

• (i) Ecchymosis around the (L) Eye;

• (ii) Laceration of the (L) side of the forehead;

• (iii) Abrasions over the (L) Shoulder;

• (iv) Multiple fractures of the right leg below the knee;

PARTICULARS OF SPECIAL DAMAGE

(i) Loss of Christmas bonus due to absence from work	$2,000.00
(ii) Medical expenses	$1,120.00
(iii) Physiotherapy	$660.00
(iv) Hospitalisation	$300.00
(v) Transportation (Cost 22 visits to J.N. France General Hospital for therapy at $20.00 per trip)	$440.00
(vi) Loss of three weeks wages representing holiday aborted due to accident;	$2,250.00
(vii) Cost of return ticket to Canada for medical treatment and evaluation;	$1,400.00
(viii) Cost of board & lodge in Canada	$1,125.00
(ix) Departure tax	$10.00
(x) Transportation while in Canada	$270.00
(xi) Cost of medical treatment and evaluation while in Canada	$675.00
(xii) Medical expenses Dr. Baird	$ 65.00
	$10315.00

3 From the evidence of the plaintiff and Mr. Desmond Fosbery – Surgeon specialist I find that the plaintiff suffered the following injuries:–

1

Swelling and bruising around the left eye with small laceration to side of left eye-brow. 2. Swelling to the left side of the forehead. 3. Abrasions around the left shoulder. 4. Several fractures of the bones below the right knee i.e.: (a) the tibia was fractured at junction of upper and second quarter just below the knee. (b) fracture of the tibia at the inner side of the ankle. (c) fracture of the fibula at the junction of the upper and middle third.

4 I find further that the injuries at 1–3 above were relatively minor but those at 4 were serious.

5 The plaintiff was operated on — a traction pin was inserted and traction was applied under general anaesthetic. The leg was then immobilized in a plaster cast which was changed periodically. The plaintiff was discharged from hospital 8 ^th June, 1991 and immobilization on crutches without weight bearing was commenced in early June, 1991. Care of the plaintiff by Mr. Fosbery ceased on 18 ^th October, 1991 i.e. exactly five (5) months after the injury.

6 I accept also the evidence of Mr. Fosbery and find as a fact that initially the pain as a result of the injury to the leg would have been severe and that some pain would continue up to 12 months from date of injury — with the only residual effect being a shortening of the right leg by ¹/₂ inch which Mr. Fosbery opined should not affect the plaintiff's gait and which may be corrected by the addition of ¹/₂ to the heel of the right shoe. I accept too the evidence of Mr. Fosbery that the injury to the leg could possibly result in arthritic processes.

7 With regard to the evidence of the plaintiff alone I accept and find as a fact that he paid $309.90 for services at the J.N.F. Hospital vide Receipts:–

Nos.	25794 d ated	21/5/91	$70.00
	42400 “	23/8/91	$229.90
	35751 “	29/7/91	$10.00
			$309.90

8 I also accept and find as a fact that the amount of $660.00 was paid for Physiotherapy treatment and that $1,120.00 is due for Professional Services rendered by the Surgeon Specialist. No finding is made in respect of bill for $279.00 dated 7 ^th June, 1991 and in this regard counsel for the defendant has given an undertaking which has been accepted by counsel for the plaintiff that same will be honored if found to be in fact outstanding.

9 The areas of dispute regarding Special damages, between the parties —at this stage of the proceedings — concerns:–

• (1) Loss of Christmas Bonus.

• (2) Loss of three (3) weeks wages representing holiday (abroad) aborted due to accident.

• (3) Cost of return ticket to and from Canada for medical treatment and evaluation.

• (4) Cost of Board and Lodging in Canada.

• (5) Departure Tax and transportation in Canada.

• (6) Medical Expenses — Dr. Baird.

FINDINGS RE. SPECIAL DAMAGES ON MATTERS IN DISPUTE

1

There was no evidence adduced to substantiate the claim for loss of Christmas Bonus due to absence from work and this is disallowed. 2. The plaintiff testified that the injuries were sustained on the Saturday before he was scheduled to proceed to England to visit his fiancÉe and alleged that he was prevented from doing so and should therefore be compensated for the loss of his holiday. The Plaintiff agreed that he did not lose any wages/ salary as his total wages/salary was paid by his employers and Social Security — This claim is likewise disallowed — General Damages will take loss of amenities into account. 3. With regard to the expenses allegedly incurred in seeking a second and/or third medical opinion in Canada, there is no evidence that this expenditure was necessary. The Surgeon Specialist who had care and management of the injuries sustained by the plaintiff from 18th May, 1991 to 18th October, 1991 when the plaintiff...