James v Douglas et Al

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Hylton, Q.C. J.
• Judgment Date: 20 July 1991
• Neutral Citation: KN 1994 HC 16
• Docket Number: 36 of 1991
• Date: 20 July 1991

High Court

Hylton, Q.C., J.

36 of 1991

James

and

Douglas et al

Dr. Henry L. Browne and Mrs. Claudette Jenkins for plaintiff.

Mr. J. Emile Ferdinand and Miss Deborah Brookes of Kelsick, Wilkin and Ferdinand for defendants.

Damages - Personal injury — Female 25 years old — Comminuted fractures of right femur — Commuted fractures of the tibia and fibula — Fracture of right ulna — Quantum

Hylton, Q.C. J.

1 On 7th June, 1991 the plaintiff caused a writ to be filed and indorsed therein was the following claim–

1

Damages for personal injuries sustained and consequential loss or damage suffered caused by the negligent driving of the first named defendant the driver and owner of Motor Vehicle Reg. No. H 2129 and the negligent driving of the third named defendant as servant or agent or agent of the second named defendant the owner of Motor Vehicle Reg. No. H 4549 on the 29th day of December, 1990 in the vicinity of Sea Heaven, Newcastle, Nevis. 2. Interest thereon pursuant to the law reform miscellaneous act. 3. Costs. 4. Any other order which the court may deem just.”

2 Appearance was entered on behalf of the second and third defendants on 24th June, 1991. The statement of claim was filed on 27th June, 1991 detailing particulars of negligence of the first and third defendants and the particulars of injuries and particulars of special damages which were noted as continuing.

3 On 9th July, 1991 appearance was entered by Mitcham and Benjamin on behalf of the first defendant and on 10th July, 1991 a defence for the first defendant was filed by Mr. Theodore Hobson as solicitor for the first defendant.

4 On 19th July, 1991 an amended statement of claim was filed by Mrs. Walwyn the solicitor who up to then appeared for the plaintiff.

5 On 10th October, 1991 Messrs. Kelsick, Wilkin and Ferdinand filed defence of the second and third defendant.

6 On October 15, 1991 Mrs. Walwyn Solicitor for the plaintiff joined issue with all three defendants.

7 By notice filed 4th January, 1993 Dr. Browne filed notice of change of solicitor for the plaintiff.

8 The matter came on for trial before Mr. Justice Singh as he then was on 31st March, 1992. Judgment as copied hereunder was entered on 20th November, 1993:–

“JUDGMENT AFTER TRIAL BEFORE JUDGE WITHOUT A JURY –

This action having been tried before the Honourable Mr. Justice Satrohan Singh without a jury, at the High Court of Justice Charlestown in the Nevis Circuit and the said Mr. Justice Singh having on the 31st day of March, 1992 ORDERED that judgment as hereinafter provided by entered as follows:–

• (i) That judgment be entered for the first named defendant against the plaintiff with costs to be taxed if not agreed;

• (ii) That judgment be entered for the plaintiff against the second and third named defendants with costs to be taxed if not agreed.”

9 Liability having been determined as above the assessment of damages came on for determination on 21st June, 1994.

10 Dr. Browne and Mrs. Jenkins appeared for the plaintiff — judgment having been entered for the first defendant he was absent.

11 Mr. Ferdinand informed the court that he together with Miss Brookes appeared primarily representing the insurance company — that the second and third defendants who were present had been communicated with and it had been expected that counsel would have been present for them — however both Mr. Ferdinand and Miss Brookes cross-examined and addressed on behalf of the defendants. My understanding of Mr. Ferdinand's comments was that it was likely that the damages would be more than the insurance liability and that was the reason why the second and third defendants were communicated with a view to their obtaining representation by counsel.

THE ASSESSMENT:

12 The plaintiff gave evidence in her own behalf and called Mr. Singh a consultant orthopaedic surgeon. In addition at the instance of the plaintiff the court viewed the plaintiff's injured leg from the hip down in chambers in the presence of counsel for the plaintiff and defendant with the consultant surgeon explaining the visual evidence. While the surgeon was viewing and touching and explaining the leg the court took note of the reaction of the plaintiff. Apart from pointing out where skin was taken from to cover certain parts of the front of her leg below the knee the plaintiff looked away from her exposed leg and no words that I am capable of can describe that night leg below the knee to the ankle.

13 From the evidence of the plaintiff I find the following facts proved:

1

The plaintiff was a secretary with a take home pay of $150 at time of accident on 29th December, 1990. 2. She was obliged to stop working because of accident. 3. She sustained injuries to head which necessitated 18 stitches, her right side was injured, her right arm was broken in two places, her right hip was dislocated and her leg and thigh were broken. 4. She was treated in Nevis by doctors Jacobs and Rawlins and then flown out by carter to Antigua where she came under the cared of Mr. Singh the consultant orthopaedic surgeon and was admitted spending many weeks in hospital in Antigua and undergoing several operations in an attempt to save her right leg between 3rd January, 1991 and 8th February, 1993 when she was finally discharged. 5. She cannot return to work as a secretary and is only 25 years old having been born on 25th February, 1969. Her mother and one set grand parents are alive and well. 6. Prior to accident the plaintiff partied a lot — particularly during seasonal celebrations and dressed accordingly and in addition she played net ball and cricket and to quote her “since accident I have not engaged in those sports. I can't do nothing at all. Something I have to get assistance. Before accident I cooked and kept house — (now) I lie down and watch T.V. Before accident I went to parties. I don't go to parties again.” In answer to specific question the plaintiff says she does not now go to parties as she can no longer dance. I understand that well having viewed her leg from hip to toe and had the explanation of the doctor as I viewed some in chambers in the presence of Mrs. Jenkins for plaintiff and Miss Brookes for defendants. 7. The pain suffered was excruciating and persistent over a considerable period of time — and here again I quote the plaintiff “Sometimes when I felt pain I felt like I was going crazy — can't move the accident has affected my life. I can't do anything. I feel real bad about that. I am still experiencing pain” and that is 32 years after the accident. 8. With regard to her marriage prospects I hold that they are nil I base this on the fact that at time of accident she was romantically involved but not now. 9. The possibility of obtaining employment suitable to her physical condition is remote in the present and foreseeable future. 10. Various relatives of the plaintiff assisted while in Antigua — sometimes at the suggestion of and at other times with the approval of Mrs. Singh.

14 From the evidence of the consultant orthopaedic surgeon together with his reports which were agreed between counsel. I find the following:–

1

Plaintiff was referred to specialist on 3rd January, 1991 and had. 2. Compound comminuted fractures of right femur which is the thigh bone. 3. Compound comminuted fractures of the tibia and fibula which are leg bones on some side. 4. Fracture of the right ulna one of the bones of the right forearm.

15 In the compound comminuted fractures the bones were exposed to the atmosphere and broken in more than two places. The skin was broken and the bones were exposed through the broken skin.

16 The plaintiff had been attended to in Nevis as noted above. The specialist caused X-rays to be done and the plaintiff was operated on 5th January, 1991 where –

• (1) The extra-medullary rod which was inserted in Nevis was removed by opening the bone as it was not holding all the pieces of the thigh bone in alignment. Another extra-medullary rod was inserted in the thigh to maintain the anatomical position of all the broken bones of the thigh.

• (2) There was the application of an external fixator, i.e. an outside steel frame applied in serially compound injuries which have extensive damage to the soft tissue as a whole including skin and muscles — this was put on below the knee.

17 Secondly on 15th January, 1991 plaintiff was returned to the operating theatre where the plates that had been inserted in her broken leg bones in Nevis were removed to prevent infection to the bones of the leg and the external fixator applied on 5th January, 1991 was realigned under X-ray control.

18 Thirdly — post operatively and because of the possibility of non-union of the broken bones of the right leg an electrical stimulator was put in order to stimulate bone growth. The plaintiff was encouraged to walk despite the pain to accelerate the bone growth.

19 Fourthly, the plaintiff was returned to the operating theatre on 9th February, 1991 when skin from the posterior aspect of right leg was transferred to the anterior aspect to facilitate coverage and again on 19th February, 1991 a partial thickness graft to cover back part of leg which was skinless.

20 Fifthly on 2nd July, 1991 she was again operated on when the external fixator was removed and a fibre glass cast applied on 9th July, 1991.

21 Sixthly, Mr. Singh received a report from Mr. David Little a consulting surgeon who saw and examined the plaintiff in Nevis in March, 1992.

22 Seventhly, the plaintiff was readmitted to hospital in Antigua under Mr. Singh's care on 20th July, 1992 when she had developed chronic osteomylitis that is, chronic bone infection and non-union at the fracture site of the broken bones in right leg.

23 The plaintiff underwent several reconstructive surgical procedures under general anaesthetics using expensive internal fixation devices and external...