Annesley Roban v Delex Horne
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Gill, M. |
| Judgment Date | 09 November 2021 |
| Judgment citation (vLex) | [2021] ECSC J1109-1 |
| Docket Number | SVGHCV2019/0138 |
| Court | High Court (Saint Vincent) |
THE EASTERN CARRIBBEAN SUPRME COURT
IN THE HIGH COURT OF JUSTICE
SVGHCV2019/0138
Mr. Jadric Cummings for the Claimant
Defendants absent and unrepresented
Gill, M. This is an assessment of damages for personal injuries the claimant suffered in a motor vehicular accident that occurred as a result of the negligent driving of the first defendant.
On 14 th September 2016, the claimant Annesley Roban was a passenger in van registration number HQ229 owned by Verol Castillo of Georgetown, St. Vincent and the Grenadines, deceased (whose Estate is the second defendant), and driven by the first defendant Delex Horne of South Rivers, St. Vincent and the Grenadines. The said van overturned on its journey to Kingstown, on the Bridgetown Public Road, causing the claimant to sustain the following injuries:
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i. Fracture of the shaft of the left humerus, with deformity
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ii. Fracture of the right wrist.
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iii. Permanent non-union of the left humerus which renders his left arm disabled
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iv. Significant swelling of the left arm with varus deformity
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v. Lateral scar on left arm
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vi. Non-functionality of hemodialysis fistula on right hand
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vii. Severe, substantial and persistent pain
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viii. Compromised balance while standing or walking.
At the time of the accident, the claimant was 51 years of age, having been born on 8 th December 1964. He is now 56 years old. He is a retired sergeant of the Royal St. Vincent and the Grenadines Police Force. He joined the Force on 10 th July 1987 and retired on 8 th December 2019.
It is noteworthy that two (2) years before the accident, in September 2014, the claimant was diagnosed with end-stage renal disease and began hemodialysis treatment on 24 th September 2014 which entails three (3) treatment sessions per week. Hemodialysis is required for the claimant's survival.
On 9 th September 2019, the claimant filed the instant claim seeking for damages for personal injuries and loss arising from the accident. Judgment in default of acknowledgment of service was granted against the defendants on 5 th January 2021. The defendants did not participate in the assessment proceedings. The evidence provided by the claimant is unchallenged.
The court must determine the quantum of damages to be awarded to the claimant.
Special damages must be pleaded, particularised and proved. This fundamental principle was stated by Lord Diplock in Ilkiw v Samuels and Others 1 as follows:
“Special damage in the sense of a monetary loss which the plaintiff has sustained up to the date of trial must be pleaded and particularised… it is plain law…that one can recover in an action only special damage which has been pleaded and of course, proved.”
As special damages, the claimant claims the cost of a police report in the sum of $100.00. This report is not mentioned in any of the claimant's two (2) witness summaries and there is no evidence of payment of any item for that sum. That claim is disallowed.
As special damages, the claimant also pleads damages for domestic assistance/nursing care up to the present. The claim is in respect of care provided by the claimant's wife. No amount is specified. However, the claimant relies on authorities to show his entitlement to damages under this head.
Since the date of the accident, the claimant and his wife Sandra aver that he has been unable to care for himself and perform the simplest of day-to-day tasks. Since the accident, these have become Sandra's responsibilities. The principle to be adopted in such circumstances was espoused by Lord Denning MR in Cunningham v. Harrison 2 as follows:
“… [I]t has been said in some cases that a plaintiff can only recover for services rendered to him when he was legally liable to pay for them…But, I think that view is much too narrow. It seems to me that when a husband is grievously injured — and is entitled to damages — then it is only right and just that, if his wife renders service to him, instead of a nurse, he should recover compensation for the value of the services that his wife has rendered. It should not be necessary to draw up a legal agreement for them. On recovering such an amount, the husband should hold it on trust for her and pay it over to her. She cannot herself sue the wrongdoer, see Best v. Samuel Fox & Co Ltd [ (1952) A. C. 716]; but she has rendered services necessitated by the wrong-doing, and should be compensated for it. If she had given up paid work to look after him, he would clearly have been entitled to recover on her behalf: because the family income would have dropped by so much: see Wattson v. Port of London Authority [ (1969) 1 Lloyds Rep. at page 102] per Megaw J. Even though she had not been doing paid work but only domestic duties in the house, nevertheless all extra attendance on him certainly calls for compensation.” (Emphasis added)
Based on this principle, in 2014, in Cleos Billingy v. Kevon Jesse-Don Anderson et al 3 Lanns M awarded the sum of $500.00 per month for 5 months ($2,500.00) for nursing care provided by the claimant's wife and family. At paragraph 40 of the judgment the learned master stated:
“It is the law that if a wife or mother or other member of the family undertakes to provide nursing care, an allowance will be made for the fair value of the services rendered because they are services made necessary by the injury, although the claimant has made no agreement to pay for them (See: Cunningham v Harrison [1973] QB 942; [1973] 3 All ER 463.”
In Carter v. St Clare Latham Concrete and Aggregates Limited, 4 Cottle M, as he then was, in 2006, allowed $200.00 per month for post-accident care, both under special damages for care by the claimant's common law wife and her mother up to the date of assessment ($4,600.00), and $31,200.00 for future domestic care using a multiplier of 13 for the claimant who was almost 38 years old at the time of the assessment. Under special damages, the claimant sought an award of $400.00 per month. However, the learned master was not satisfied by the evidence provided by the claimant as to the cost of domestic care. The defendant was willing to concede the amount of $200.00. In Cleos Billingy, Master Lanns updated that award (which was stated in her judgment as $300.00 per month) to “today's dollars”, given the time span between the two cases. In the circumstances, the claimant submits that it is appropriate and reasonable to adopt the same approach in the instant case and for this sum to be updated to $600.00 per month, given the 7-year time span since Cleos Billingy.
The evidence reveals that after the claimant was injured, he needed great assistance. Paragraph 7 of the witness summary of Mrs. Roban reads:
“7. Given the significant injuries to my husband's hands, he could not do anything for himself and everything had to be done for him. You had to guide him to go to the bathroom and because he cannot stand on his own, you had to put him on the seat. I had to bathe him, dry him and then put on every piece of his clothes. I had to feed him, hold him up to walk among many other things. I had to do everything for him. To this day, since the accident, I am still doing these things.”
Considering the nature of the injuries suffered by the claimant and his complete dependence on his wife since the accident, the sum claimed is not unreasonable. I will
The relevant factors to be taken into account in the exercise of an assessment of general damages were laid down by Wooding CJ in Cornilliac v St. Louis 5 namely:
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a) The nature and extent of the injuries sustained;
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b) The nature and gravity of the resulting physical disability;
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c) The pain and suffering which has been endured;
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d) The loss of amenities suffered; and
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e) The extent to which, consequentially, the claimant's pecuniary prospects have been materially affected.
As a result of the accident the claimant suffered the injuries stated earlier at paragraph 2.
After the accident, the claimant's injuries were treated in plaster and he underwent open reduction and internal fixation with plate and screws in April 2017. This was unsuccessful as there was no union of the fracture and the fixation became loose.
In July 2017, the claimant underwent surgery with bone grafting at the Milton Cato Memorial Hospital to alleviate injuries sustained. Post-operative complications resulted in non-functionality to the fistula access site for hemodialysis on the right wrist requiring immediate repair and the need to create a temporary access site for hemodialysis.
Despite successive corrective operations to the left humerus, there persists a non-union of the fracture to the mid-to-distal diaphysis of the left humerus, with deformity 6.
An updated medical report by Dr. Charles D. Woods, dated 12 th May 2020, concludes that the claimant's end stage renal disease predisposes him to a “high risk for intra operative and post operative complications if further surgery is attempted, and so a decision has been made not to attempt further surgery. As a result, Mr. Roban's disability [to his left arm] will be permanent.”
The divers medical reports exhibited in the case at bar reveal the extent and significance of the claimant's injuries suffered from the accident. The most notable are recorded in the findings of Dr. Anil Ali 7 where it is reported that “…Mr. Roban had...
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