Bute v De Freitas and Emmons
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Taylor-Alexander, M. |
| Judgment Date | 08 August 2012 |
| Neutral Citation | VC 2012 HC 37 |
| Docket Number | SVGHCV 303 of 2010 |
| Court | High Court (Saint Vincent) |
| Date | 08 August 2012 |
High Court
Taylor-Alexander, M.
SVGHCV 303 of 2010
Ms. Suzanne Commission of Counsel for the claimant
Maia Eustace of Counsel for the defendant
Damages - Personal injury — Motor vehicle accident — Fracture to leg requiring surgery — Permanent limp — Quantum.
On the 8th day of March 2010, the claimant, at the time a 46 year-old man, was driving his motor cycle PB469 from Georgetown to Magnum in Saint Vincent when the second defendant, who was driving a rented motor vehicle registration number RD662, owned by the first-named defendant so negligently drove his motor vehicle that he caused it to collide with the motor cycle of the claimant and striking the right leg of the claimant.
As a result of the collision the claimant was thrown to the ground and both his motor cycle and his leg were injured.
The proceedings were at an earlier stage discontinued as against the first defendant, and judgment in default of defence was entered against the second defendant.
I am now required, based on the default judgment and an application and submissions of the claimant, to assess the quantum of damages payable by the second defendant for the injury loss and damage suffered by the claimant.
I had previously advised counsel for the claimant that having reviewed the claim for special damages and reimbursable loss of $11,648.91 that I found the same to have been made out.
Having fully reviewed the evidence submitted I find the claimant to have proven sums of $3,648.90 with respect to loss other than loss of earnings.
The claim regarding loss of earnings is curiously weak, given that the regularity of the claimant's employment should have made such evidence readily accessible and he ought not to have had any difficulty in proving the same. The salary slips exhibited are hardly sufficient for the court to form a conclusive position as to the claimant's average monthly earnings. Based on the limited evidence provided, I concluded that the average monthly earning of the claimant was $1,400.00.
I am satisfied that the injuries suffered by the claimant affected his ability to work and his employment earnings. Based on the evidence of the medical practitioner I find that the claimant was unable to work for a period of eleven months immediately following the injury and award loss of earnings totalling $15,400.00 for a total special damages claim of $19, 048.90.
In assessing general damages our court has approved the seminal authority of the Court of Appeal of Trinidad and Tobago Court of Cornilliac v St. Louis [1965] 7 WIR 491 and accepted the factors stated by Wooding CJ which are to be taken into account in assessing general damages. Those factors are (i) the nature and extent of the injuries sustained; (ii) the nature and gravity of the resulting physical disability; (iii) the pain and suffering endured; (iv) the loss of amenities; and (v) the impact on the claimant's pecuniary prospects.
I have considered the pleadings and all of the medical and other evidence which came from the reports and the oral and written evidence. In applying the factors identified by Wooding CJ, I have particularly considered the medical reports of Dr. Woods, the attending physician. I am satisfied that the defendant sustained a comminuted fracture of his right tibula and fibula, for which he was treated with open reduction and fixation of the tibia. He was discharged after surgery without problems on the 29th March 2010 but was readmitted when infection set in and x-rays showed some loosening of the plate and instability of the fracture site due to infection and excessive weight bearing on the affected area. He was treated with antibiotics and casting of the leg. The fracture consolidated but with some deformity due to the plate loosening during the healing of the tibia with the resultant shortening of the leg. He is now ambulant but sometimes uses a walking aid for support. He will have a permanent limp.
I have reviewed the following authorities:-
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(a) Sherma Mathurin and Rain...
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