Karen John Claimant v David Dibique Defendant [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: Taylor-Alexander M
• Judgment Date: 20 March 2014
• Judgment citation (vLex): [2014] ECSC J0320-2
• Court: High Court (Saint Vincent)
• Docket Number: CLAIM NO. SVGHCV2009/0359
• Date: 20 March 2014

[2014] ECSC J0320-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. SVGHCV2009/0359

Between:

Karen John

Claimant

and

David Dibique

Defendant

DECISION

Taylor-Alexander M

1 This is a most unfortunate incident dramatized by the shooting of the claimant who at the time was a 22 year old female bartender and a mother of a young child. The defendant was an intoxicated patron at Fun City in Kingstown, St. Vincent where the claimant worked, who recklessly discharged a firearm at the bar, shooting the claimant in the right side of her chest paralysing her right and dominant arm which had to be amputated at the position of theshoulder. The defendant was criminally prosecuted and convicted and he pleaded guilty to wounding with intent and unlawful use of a firearm. Judgment in these proceedings was entered for the claimant on a claim filed on the 2^nd November 2009, upon which the court on 6^th March 2012 ordered:—

• " a. Judgment is entered for the Claimant.

• b. The Defendant shall pay the Claimant special damages claimed and general damages for the injury suffered.

• c. The damages shall be assessed on the application of the Claimant, such application to be made within three months.

• d. The defendant shall pay the claimant interest on the sum assessed at the rate of six (6) per cent per annum from the date of assessment until final payment.

• e. The defendant shall pay the claimant's costs as prescribed in Part 65 of CPR 2000."

3 Damages for the injury loss and damage sustained by the claimant are now to be assessed.

Issues

4 The claimant sues for special damages including loss of earnings; future pecuniary loss; future medical care; pain suffering and loss of amenities, a total claim of $585,135.77. I am required to assess her entitlement to awards under these heads of damages and where I find she is entitled, to determine an appropriate award.

[3] The defendant was not in attendance at the date of assessment. He was present on the 9^th December 2013 when directions were given for him to file submissions and authorities within 21 days and ahead of the hearing of the assessment of damages. The defendant had, in the past, been represented by a number of counsels. Mr. Jomo Thomas who had placed himself formally on the record withdrew on the 13^th January 2011. The defendant by his choice, is without representation. He has failed to comply with the order of Master Actie to file his submissions and the natural assumption I have drawn, is that he has no interest in participating in the assessment.

[4] A defendant is liable for damages flowing directly from his negligence and the obligation of the court on assessment is to attempt as nearly as possible to restore the party injured to the position she would have been in, had the injury not occurred. The objective was stated thus by Lord Blackburn inLivingstone v Rawyards Coal Company [1880] HL. He said:—

"I do not think there is any difference of opinion as to it being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages, you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong or which he is now getting his compensation or reparation."

5 Damages are awarded under the heads of general and special damages. Lord Goddard inBritish Transport Commission v Gourley 1955 3 AER page 796 explained its application thus:—

"In an action for personal injuries the damages are always divided into two main parts. First, there is what is referred to as special damage which has to be specially pleaded and proved. This consists of out-of-pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. Secondly, there is general damage which the law implies and is not specially pleaded. This includes compensation for pain and suffering and the like, and if the injuries suffered are such as to lead to continuing or permanent disability compensation for loss of earning power in the future."

General Damages

6 The claimant suffered a fractured right clavicle and injuries to the subclavian artery and branchial artery with a large aneurysm communicating with the subclavian/brachial vein. Venous grafting was necessary to harvest the saphenous vein from her right thigh, to regenerate her arm. This surgery was ultimately unsuccessful. The claimant underwent a total of five surgeries of which two were foramputations. The period following the shooting was medically traumatic and reciting the medical evidence is important.

Medical Evidence/ Dr H Dougan Consultant Surgeon

7 The claimant was first attended to by Dr Dougan. He found that the claimant suffered a gunshot wound to her right neck with injury to the subclavian vessels and the brachial plexus. According to his report she was treated and was hospitalised for eight days during which time she was given rapid fluid infusion and transfusion of two unit packs of red blood cells and was observed in the ICU. She was thereafter flown to Trinidad accompanied by medical personnel for further observation and for several life surgeries intended at saving her right arm. Despite these efforts the arm suffered from lack of circulation and turned black, forcing its amputation below the elbow to prevent mortality and morbidity of her arm. In time there was chronic swelling of the stump with necrosis and dehiscence of the wound, due to disturbance in circulation of the arm as a result of the injury. Further surgical operation resulted in total amputation of the right arm up to the shoulder.

Dr Celestine Ragoonanan, FRCS, Vascular Surgeon Trinidad

8 Dr Ragoonanan found that on presentation, on the 7^th January 2007, the claimant's whole right arm up to the level of the shoulder was paralysed. The whole arm from the level of the shoulder was also swollen. There was loss of sensation from below the elbow. All pulses in the arm were absent and this arm was cooler than her left.

9 A CXR revealed a displaced fracture of the mid clavicle and a bullet lodged just below the glonoid. An Angiogram was therefore performed and this revealed a very complex injury. It appeared that the 3^rd part of the subclavian artery/1^st part of the brachial artery was disrupted with a large false aneurysm which communicated with the subclavian/brachial vein. The main presenting clinical problem was an expanding aneurysm and the viability of the upper limb brachial plexus injury. A neurosurgeon was consulted with respect of her brachial plexus and he advised exploration in two months if there were no signs of recovery. Preparation for exploration of her injury was commenced. The objectives of the operation were to exclude and obliterate the aneurysm and to restore circulation to her arm. Full informed consent was practiced and loss of the limb among other things was cited as a probable complication. Both mother and daughter were fully informed of this. There was some delay in procuring blood for her operation as the patient had no blood donors.

10 On the 13^th of January 2007 surgery was undertaken to effectively isolate the 'false aneurysm'. The next day the arm failed to warm up and it was thought that there might be an embolic clot/thrombosis to the vessels of the arm and forearm. I.V. heparin was commenced at therapeutic doses. On the 15^th of January, the vessels of the arm were explored via the antecubital fossa. No appreciable clot was retrieved using a size 3 forgathy's but high resistance to flow was encountered. The next day, the whole wound was re explored and the grafts examined. Postoperatively she was fully anti-coagulated and maintained on the IV antibiotics. The forearm however still appeared ischaemic an on 17^th January 2007 her distal anastomosis was explored. It appeared that there was distal resistance to flow and perhaps there was widespread distal microvascular thrombosis. As a security, a reversed LSV graft harvested from her left thigh was fashioned from a good distal brachial artery. The graft was obviously patent to the bifurcation of this artery. In spite of all this her forearm failed to warm up although her arm appeared fully perfused. On 19^th of January 2007, under local anaesthesia, her forearm vessels were again embolectomized.

11 Over the course of the next few days her distal forearm behaved erratically with respect to perfusion. Eventually the forearm started to show irreversible ischaemic signs. This was extremely distressing to the patient and not unexpectedly there appeared to be some inappropriate behaviour. At that point a psychiatrist was consulted and he commenced some appropriate treatment. She became toxic and the antibiotic regimen was changed to high doses IV elequine. On the 6^th of Feb 2007 she underwent a guillotine below elbow amputation for spreading infection and generalized sepsis. Post op intransite gel and iodine were utilized for wound management.

12 There was some recovery of motor and sensor function of the arm and stump. The surgical wounds were practically all healed on discharge. The bullet remains at the inferior edge of the glenoid. The doctors feel there is no need to retrieve the bullet as it may never present any problems. This was fully explained to the patient and her mother. The failure to restore perfusion ofthe forearm could...