Franklyn Lloyd Plaintiff v Nathaniel Phillip 1st Defendant St. Kitts and Nevis Telephone Company Ltd (trading as "Skantel") 2nd Defendant

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Satrohan Singh J.
• Judgment Date: 09 December 1991
• Judgment citation (vLex): [1991] ECSC J1209-2
• Docket Number: SUIT NO. 79 OF 1991
• Date: 09 December 1991

[1991] ECSC J1209-2

IN THE HIGH COURT OF JUSTICE

A. D. 1991

(CIVIL)

SUIT NO. 79 OF 1991

Between:

Franklyn Lloyd

Plaintiff

and

Nathaniel Phillip

1st Defendant

St. Kitts and Nevis Telephone Company Limited (trading as "Skantel")

2nd Defendant

Appearances:

Mr. Joseph S. Archibald, Q.C., Dr. Henry Browne with him for the Plaintiff

Mr. Charles Wilkin, Mr. Vernon Viera with him for the Defendants

Satrohan Singh J.

1 On July 5, 1988, the defendants by the negligence of one of their employees caused the plaintiff to be injured and his Mercedes Benz Motor-car wrecked. The plaintiff filed this Suit on May 15, 1991 after negotiations between himself and defendants as to settlement of the matter did not come to fruition. The Writ was served on the defendants and they entered appearance thereto on June 7, 1991. They filed no defence. On July 4, 1991, the plaintiff entered Judgment in default of defence for damages to be assessed. On July 13, 1991, the plaintiff approached the Court to ascertain the damages. That application was fixed for hearing on July 19, 1991. On July 16, 1991, the defendants filed a summons to set aside the aforementioned default Judgment and for leave to file and serve a defence out of time. The summons stated no ground for the application but the affidavit in support, sworn to by the Solicitor for the defendants, stated that the defendants did not file their defence as the defendants intended to settle the matter without litigation. No draft defence was made available to the Court and no clue as to what the defence would be was disclosed in the affidavit filed in support of the application. The most the Court could have gleaned from the affidavit was that liability in the defendants was not disputed and that it was only the question of quantum that was being challenged.

2 At the hearing of the summons to set aside learned Counsel for the defendants Mr. Vernon Viera conceded no ground in his application to set aside and advised Court that the issue was on quantum only. The application to set aside was then dismissed and the application to assess damages adjourned for a date to be fixed at the convenience of the parties.

3 There was another summons also filed by the defendants on July 16, 1991 for an Order for particulars as to the plaintiff's alleged loss of earnings as Acting Chief Medical Officer and from his private Clinic. The plaintiff's Statement of Claim showed a claim for loss of earnings for four years as Acting Chief Medical Officer in the sum of $35,555.56 and from his private Clinic in the sum of $27,396; totalling together the sum of $73,969.20.

4 That summons came up for hearing on July 30, 1991.

5 Having heard arguments from both sides on that application, the Court refused same on the ground not only that it was too late in the day but also because in relation to the plaintiff's loss of earnings as Acting Chief Medical Officer, Mr. Viera conceded that he could get such particulars from the Estimates of this Country which is public record. With respect to the plaintiff's alleged loss from his Clinic that would be for the plaintiff to prove by cogent and acceptable evidence.

6 The question then arose as to the request of the defence to have the plaintiff examined by the defence own Medical Specialists. After a thorough discussion on the matter — by both sides with the Court, a discussion which centred around the plaintiff's fundamental right of freedom of his person as guaranteed by the Constitution of this Federation, the parties agreed to the following consent Order:-

• 1. Plaintiff agrees to be examined by Specialists appointed by the defendants in relation to injuries to his eyes and in relation to all the fractures allegedly suffered by plaintiff.

• 2. Such examination to take place in St. Kitts at dates and times convenient to both sides during the month of August, 1991 and not later than August 31, 1991.

• 3. The defendants agree to pay the plaintiff special damages for the cost of medication and services in the sum of 136,957.60 as an interim payment on the special damages claimed. Such damages to be paid on the date or before the examination of the plaintiff in August, 1991, failing which the plaintiff has the option to refuse to be examined and the issue if then properly before the Court to be argued and determined by the Court.

• 4: Assessment of damages to be on October 21, 1991.

• 5. Defence to make available to the plaintiff copies of the report of the examination within two weeks after the examination.

• 6. Costs of today to the plaintiff in any event end costs of the examination to be costs in the cause.

7 The Special damages as originally claimed by the plaintiff totalled $387,395.52 E.C. and this covers the replacement cost of the plaintiff's Mercedes Benz, damages for loss of use of the car, his medical expenses including travel and hotel expenses while seeking medical care abroad and loss of earnings. It was disclosed to the Court that the parties settled the plaintiff's claim for the loss of his car and that he has since been paid for that loss. The matter then came up for assessment on July 30, 1991. On that date the aforesaid consent Order was made. The application for the assessment was then adjourned to October 21, 1991.

8 When this matter came up for hearing on October 21, 1901, both sides applied for a new date, Mr. Viera, on the ground that he was suffering from fish poisoning and Dr. Browne, on the ground that his Specialists would not be available until October 28, 1991. With the consent of both parties, the assessment was adjourned to that date.

9 On October 28th, 1991 at 9 a.m. the assessment of the damages commenced With Queen's Counsel Mr. Joseph Archibald for the plaintiff successfully applying for amendments to the special damages claimed increasing it to $521,202.30.

10 The amendments obtained are as follows:-

(1) Loss of earnings as Acting Chief Medical Officer

(4) years: $84,480 E.C. substituted for $35,555.56

11 Mr. Archibald advised the Court that the deleted sum was wrongly placed in $E.C column of the claim rather than the $E.C. column. A mistake in drafting the Statement of Claim.

• (2) Loss of earnings from private Clinic: $234,000: substituted for $73,969.20. Broken down it reads 39 months at $6,000: per month (July, 1988 to October, 1991).

• (3) Damages for loss of use of Car deleted and no longer claimed by the Plaintiff.

12 These amendments were strenuously objected to by Mr. Charles Wilkin for the defendants on the ground that this introduced a new claim for special damages.

13 The Court, in the exercise of its Judicial discretion granted the amendments. Mr. Wilkin then agreed for the assessment to go on without adjournment.

14 It was also disclosed to the Court at this time by Mr. Archibald that the Plaintiff's claim for the replacement cost of his Car was still open, despite what was previously represented to this Court as already mentioned that that aspect of the claim was settled.

15 So the assessment commenced in relation to —

• 1. Replacement cost of the Plaintiff's Car.

• 2. Travel Expenses to and from New York.

16 Mr. Archibald represented to the Court that the defence agreed to (2) as claimed in principle.

• 3. Loss of Earnings as Chief Medical Officer.

• 4. Loss of Earnings from private Clinic.

• 5. General damages.

17 During the cross-examination of the plaintiff by Mr. Wilkin, Mr. Archibald interrupted to advise the Court that the parties had settled the plaintiff's claim with respect to his travel expenses to and from New York and that Judgment should entered for the plaintiff under that head by consent for $32,648.45: That sum has since been paid to the plaintiff. That left 1, 3, 4 and 5 to be determined.

18 At the commencement of the second day's hearing, Mr. Wilkin applied to the Court to have the plaintiff examined by a Specialist of the defendant's choice in relation to the complications that the plaintiff's doctor Dr. Harwood, testified he saw when he examined the plaintiff in September, 1991 in relation to the fracture of the plaintiff's jaw. Having heard arguments from both sides the Court at first refused Mr. Wilkin's application having regard to the opportunity already given the defendants in the consent order aforementioned to do so. After the luncheon adjournment however, the Court upon reflection felt that justice would be better served if the application were to be granted. These views were conveyed to the plaintiff and the legal advisers for both sides and with the consent of both sides a second Consent Order was made to accommodate this application of the defendants. The matter was then adjourned to December 2nd, 1991.

19 The matter was resumed on December 2, 1991 with three experts testifying for the defence. The Plaintiff himself and four witnesses on his behalf had already testified.

20 I thought it prudent to mention the different happenings in this matter before I embark on the assessment proper so that the Judgment can reflect the full picture of what transpired in this matter.

21 I now proceed to the assessment and I would deal first with the plaintiff's claim under the head of Special damage for the replacement cost of his Mercedes Benz Motor Car.

22 The plaintiff claims $128,116.25 under this head.

23 The evidence of the plaintiff and the Comptroller of Customs and Excise Mr. Winston Warner which I accept shows the Car to be a new Mercedes Benz 200 C bought by the Plaintiff in May, 1985.

24 I find as a fact from Winston Warner's evidence that the price of the car with all duties paid was $63,987.01 E.C. and that because it was a car that was not sold in this country, Its replacement cost in 1989 after depreciation was considered would be $88,867.58. Warner's evidence also is that at the date of the accident and after three years depreciation the value of the car was reduced...