Hazel v Isaac et Al
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Hylton, Q.C. J. |
| Judgment Date | 04 July 1994 |
| Neutral Citation | KN 1994 HC 14 |
| Docket Number | Civil Suit No. 96 of 1993 |
| Court | High Court (Saint Kitts and Nevis) |
| Date | 04 July 1994 |
High Court
Hylton, J.
Civil Suit No. 96 of 1993
Dr. Henry Browne and Mrs. Claudette Jenkins for plaintiff.
Mr. Karlweis Liburd for defendant.
Mr. Glenford Hamilton and Mrs. Leonona Walwyn-Bowrin for third party.
Damages - Personal injury — Motor vehicle accident — Double fractures of lower jaw — Dislocation of righ shoulder — Multiple fracture of ribs 3—6 on right side and pulmonary contusion — Quantum.
Damages - Personal injury — Motor vehicle accident — Head, neck, shoulder and chest pains and minor cuts and abrasions — Evidence of cervical spondylosis — Quantum
On 23rd February, 1994 the issue of liability as between the parties was tried and I found as follows:
“On a balance of probabilities I hold that the cause of the collision between the defendant's and the third party's vehicle was due to the negligence of the defendant. I accordingly enter judgment for the plaintiff and third party. Costs to be taxed or agreed.”
Having so found the assessment of damages was adjourned to a later date and on 13th June, 1994 this came on for hearing and was adjourned and continued on 28th June, 1994.
I shall deal first with the Assessment in respect of the plaintiff. The plaintiff gave evidence in his own behalf — Medical Reports were submitted as follows:–
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(1) Mr. Desmond Fosbery, Surgeon Specialist submitted two reports.
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(2) John T. Reinhold, Director of the St. Kitts Dental Clinic submitted one report.
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(3) Dr. Tory Yaphe D.D.S. of South Independence Square submitted one report and also gave evidence.
The Medical Reports were tendered by agreement and Dr. Yaphe was only briefly cross-examined by counsel for the defendant.
From the evidence of the plaintiff and Dr. Yaphe together with the Medical reports I make the following findings of facts:–
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(1) The plaintiff was involved in a motor vehicle accident on 31st August, 1992 and was very seriously injured.
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(2) The injuries to the plaintiff were double fractures of the lower jaw, dislocation of the right shoulder, multiple fractures of ribs 3–6 on the right side and pulmonary contusion.
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(3) Surgical treatment of the plaintiff included wiring of the fractures of the lower jaw and relocation of the shoulder.
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(4) The plaintiff was hospitalised until 28th September, 1992 — i.e. for a period of 4 weeks and for a great portion of this time his mother visited him twice per day and rendered invaluable assistance in feeding him liquids and otherwise.
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(5) After leaving hospital the plaintiff returned a total 63 times for out patient treatment i.e. physiotherapy.
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(6) The plaintiff returned to work with his previous employers the third party after 6th March, 1993 at the same wages as before — though this is said to e due to the humanitarian action of the third party.
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(7) Permanent defects result from the fractured jaw.
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(8) The other injuries suffered in the accident have healed properly and satisfactorily; but
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(9) The plaintiff's ears had a persistent ring shortly after surgery and even now if he hears a loud noise the effects thereof seem to continue for a long while.
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(10) The plaintiff's bite is off to a considerable degree and the symptoms from which he suffers — are consistent with incorrect occlusion and (J.M.T.) Tempro — Mandibular joint problems.
The plaintiff explains his symptoms after surgery thus — “My head spin a lot — lots of headace and chest pains. The biggest problem was if I sneeze — it was like tearing out the jaw — my neck felt stiff”.
Further the plaintiff said “Before my accident I had no difficulty in opening my mouth wide. I can't even attempt to open my mouth wide now. Both sides of lower jaw pain me when I open mouth now. There is a knocking on the left side. When I yawn my mouth can't close properly — I have to take thumb to help to close jaw bone”.
The witness demonstrated this to the court and I have no reason to doubt him — particularly as he spontaneously burst into tears and informed the court that there is a wire in his jaw placed there by the Surgeon.
Despite this however it is quite obvious that the plaintiff's teeth cannot close properly — and to a layman such as I in these matters I can best explain it by saying that there does not seem to be the usual interconnection with the top teeth and lower teeth and that the top seems to over hang to an appreciable extent.
Having consulted Dr. Yaphe lastly Dr. Yaphe submitted a report and augmented this by viva voce evidence. In this regard I make the following additional findings;–
- To restore the plaintiff's dental health it is necessary for him to receive specialist care which is not available in the federation but may be had in Puerto Rico during a hospital stay lasting 2–3 days. 2. That the earlier the plaintiff receives this specialist care the better as a failure to correct the T.M.J. early could lead to chronic degeneration. This is a condition similar to arthritis.
In answer to counsel for the defendant Dr. Yaphe said the plaintiff has an abnormal misalignment of the jaw which appears to be the result of a trauma i.e. blunt force injury.
Of less importance than the possibility of developing chronic degeneration — but however important in the overall loss of amenities is the plaintiff's evidence — which I find to be true that is to say his inability to eat his food and the fact that from 31st August, 1992 the date of the accident he was unable to brush his teeth for a considerable time.
In addition to this the plaintiff testified that he was accustomed to do entertaining each week-end for which he received $50 per week-end and had even gone overseas to entertain — his specialty being “DJ and dubbing”.
As mentioned earlier counsel for the defendant did not mount a serious challenge to the plaintiff's claim for damages but questioned why it was necessary for his mother to provide a liquid diet at a cost of $2000 bearing in mind the fact that the patient was hospitalised. In this regard I accept the plaintiff's evidence that he was provided with tea but his mother bought and fed him liquid nutrients — I accept his evidence.
Counsel for the plaintiff submitted a number of cases for the guidance of the court but was content to deal in detail only with the unreported case from this jurisdiction — that is, the judgment of Mr. Justice Singh as he then was in Suit No. 769 of 1991 Franklyn Lloyd plaintiff v. Nathaniel Phillip 1st defendant St. Kitts and Nevis Telephone Company Limited (trading as Skantel) second defendant.
The other cases mentioned by plaintiff's counsel were:–
- Cornilliac v. St. Louis7 WIR 491. 2. Houscroft v. Burnett[1981] All England Reports 332.
I have previously considered most of the cases cited and those specifically mentioned in detail and consider myself bound by the principles enunciated in Cornilliac v. St. Louis adopted and applied in Franklyn Lloyd v. Nathaniel Philip and Skantel.
I must therefore without applying strict mathematics seek to, by way of general damages, compensate the plaintiff for:
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(1) The nature and extent of his injuries.
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(2) The nature and gravity of the resulting physical disability.
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(3) Pain and suffering.
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(4) Loss of amenities.
I shall not award any damages for loss of pecuniary prospects and the plaintiff is in no worse position financially than he was before — but I remind myself notwithstanding that he cannot perform in his chosen field of masonry as before and so works for the same employer more or less as a Foreman overseeing other workers. Plaintiff's counsel agreed with this position and requested that the claim under special damages for prospective financial loss be expunged. I shall bear in mind however that the plaintiff is not able to continue before in his chosen field of masonry.
Before attempting to deal with general damages however I shall deal with the special damages as that is always relatively easy to compute:–
| (1) Loss of earnings as a mason from 31/8/92 to 6/3/93 — 26 weeks at $400 per week. | 10,4000 |
| (2) Loss of earnings as a Disc Jokey... |
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