Asquith Mc Lean Claimant v Sheldon Bynoe Defendant [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: LANNS, MASTER
• Judgment Date: 03 July 2009
• Judgment citation (vLex): [2009] ECSC J0703-3
• Court: High Court (Saint Vincent)
• Docket Number: CLAIM NO 463 OF 2006
• Date: 03 July 2009

[2009] ECSC J0703-3

IN THE HIGH COURT OF JUSTICE

(CIVIL)

CLAIM NO 463 OF 2006

Between:

Asquith Mc Lean

Claimant

and

Sheldon Bynoe

Defendant

Appearances

Ms Niara Frazer for the Claimant

JUDGMENT ON ASSESSMENT OF DAMAGES

LANNS, MASTER

1 This is an assessment of damages in a personal injury claim following default judgment entered up on 27^th November 2007. I am satisfied that the defendant was properly served with the proceedings on 12^th February 2007 and that he failed to acknowledge service or put in a defence and that the default judgment for damages to be assessed dated 27^th November 2007 is a valid judgment.

2 Asquith McLean (Asquith) was born on 6^th November 1975. He is presently 33 years old. At the time of the incident he was 29 years of age.

3 On 3^rd April 2005, the Defendant (Sheldon) struck Asquith with a cinder block to the left side of his head. As a result of the assault, Asquith sustained a 4cm laceration to the left parietal region of the scalp. He received initial treatment at the Accident and Emergency Unit of the Milton Cato Memorial Hospital where his wound was sutured. He was then placed on antibiotics and pain medication and then discharged. He was subsequently admitted to the hospital for observation after complaining of headaches, vomiting and light headedness. There, he remained for six days. After his discharge, he attended the outpatient clinic for follow up treatment. He then attended at the Caribbean Medial Imaging Center for a CT Scan which revealed no evidence of acute intracranial hemorrhage. There was no focal parenchynal masses and the ventricular system was described as "unremarkable". There was no evidence of skull vault fracture.

4 Asquith was off work for about three months while he recovered. During that time he endured intense pain and could not engage in his sporting activities like football and dominoes.

Special Damages

5 Special damages must be pleaded and proven.(British Transport v Gourley [1953] 3 All ER 803 [1953] 3 All ER 803); See also Heerallal v Hack Brothers (Construction) Ltd (1977) 24 WIR 117.

6 Asquith claims special damages in the sum of $5,700.00 being $50.00 for medical report; $1100.00 for CT Scan and $4500.00 representing loss of income for the period 3^rd April to July 11^th 2005.

7 Asquith has by Exhibit "AM 4 " proven his expenditure of $1100.00 for the CT Scan. But he has not satisfactorily proven his loss of income of $4500.00 and the sum of $50.00 for the medical report.

8 InBonham-Carter v Hyde Park Hotel (1948) 64 TLR 177 at 178 Lord Goddard CJ, who found it possible to arrive at a conclusion despite the extremely unsatisfactory evidence as to damages said:

'Plaintiffs must understand that, if they bring action for damages, it is for them to prove their damage; it is not enough to write down particulars and, so to speak, throw them at the head of the court, saying: "This is what I have lost, I ask you to give me these damages". They have to prove it."

9 However, His Lordship went on to find that the probability existed that some loss resulted and went on to make his own assessment on the primary facts alone. In that case, the claimants claim was reduced.

10 In the Trinidadian case ofGrant v Motilal Moonan Ltd, the Court of Appeal held that the Master should have accepted the Appellant's claim in full even though the Appellant did not have receipts for certain items of household appliances, furniture, kitchen utensils clothing etc that were destroyed as a result of the accident.

11 I do not think that in a case of this kind, I should adopt the approach taken inGrant's case in respect of Asquith's loss of earning.

12 Asquith deposed thatimmediately before the accident he was employed by one Sylvester France as a mason and carpenter at an average of $65.00 per day. He was injured on 3^rd April 2009 and was last employed by Ms France on an unknown date in March 2005.

13 Exhibit "AM3 " is a certificate of one MsSylventer France certifying that Asquith was employed by her from January to March 2009 at $65.00 per day. On the other hand, Asquith, in answer to the court, said that he was employed with Ms France for a little over a year. Apart from the certificate referred to at paragraph 3, Ms France has presented no proof of the wages she allegedly paid to Asquith and it is unclear whether Asquith was at the time of the assault in the employ of Ms France, She has...