Chapter 15. Damages for Personal Injuries and Death

• Pages: 427-451

PERSONAL INJURIES

When tort liability has been established, the court’s next task is to assess the

amount (the ‘quantum’) of damages which the defendant must pay to the claim-

ant by way of compensation.1 In the Caribbean, most personal injury claims are

in negligence, and the vast majority of such injuries occur in road or workplace

accidents. Damages in personal injury act ions are classied as general or special.

General damages are awarded for those items which cannot be precisely quan-

tied in money terms, such as pain and suffering and loss of amenities, whilst

special damage, such as pre-trial wages lost or medical expenses incurred, can

be precisely calculated.

The distinction bet ween special and general damages was explained by Haynes

C in the leading case of Heeralall v Hack Bros (Construction) Co Ltd:2

Damages are specia l and general. Special da mages must be specially pleaded and

proved, and are awarded in respect of out-of-pocket exp enses and loss of earnings

actually incu rred down to the date of the trial itself. They are genera lly capable of

substantially exact c alculation, or at least of being estimated with a close approxi-

mation to accuracy. The familia r examples are medical a nd surgical fees paid or

payable, hospital expenses (if any) and loss of income. If the [clai mant] has been

employed at a xed salary or wage, such loss of income can com monly be calcu-

lated precisely; but where he is self-employed, it must be estim ated by reference to

his past earni ngs. The basic principle, as far as t hese losses are concer ned, is that

the injured perso n should be placed, as far as money can do so, in the same nan-

cial position as he would have been in at the date of trial if no accident had hap-

pened. General damage, on the othe r hand, need not be pleaded specially, as the law

implies it. It usually falls u nder these heads: (a) loss of future earn ings or income;

(b) pain and suffering ; and (c) loss of ‘amenities’ or enjoyment of life. Admittedly,

other items may be included in par ticular cas es, such as future exp enditure (for

example, the cost of an artic ial limb). By the very nature of the three usual head s,

they are incapable of precise mat hematical calculation, because the tri al judge has

to assess (a) with reference to an inden ite future, subject to vicissitudes and con-

tingencies, and, as regar ds (b) and (c), make an award in money for the injury it self,

the pain and suffe ring from it and the overall effect on the [claima nt’s] enjoyment

of life, which do not really have equivalent money values.

1 It is accepted that the court should in genera l have regard to awards of damages in the same ju ris-

diction or in other ju risdictions where t he social and economic cond itions are simila r: Selvanayagam

v University of the West Indies [1983] 1 All ER 824, at 828, per Lord Scarman; Taylor v The Nassau

Guardian Ltd (2003) Supreme Court, The B ahamas, No CL 543 of 1999 (unreported) [Carilaw BS 2003

SC 21], per Small J.

2 (1977) 25 WIR 117 (Court of Appeal, Guyana), at 124.

CHAPTER 15

DAMAGES FOR PERSONAL INJURIES AND DEATH

DOI: 10.4 324/9781351065108-15

10.4324/97813 5106 5108 -15

428 Commonwealth Caribbean Tort Law

Special damages

Examples of special damage (which must be proved strictly)3 include not only medi-

cal expenses and pre-trial loss of earnings, but such smaller items as damage to

clothing and taxi fares to and from hospital. Under medical and nursing expenses,

the claimant is entitled to recover the cost of treatment and ca re which he reasonably

incurs as a result of his injuries. This would include payment of hospital bills and

doctors’ fees. Also, where the victim is nursed by a member of his fa mily or a friend,

he is entitled to the reasonable cost of such nursing services (both for the past and

for the future), even though he may not be under any legal or moral obligation to

pay the person who gives the services. In Tudor v Cox,4 an 18-year-old youth received

serious head injuries as a result of the defendant’s negligence. After his discharge

from hospital, his mother looked after him at home. Husbands J held that an award

must be made for those services. He said:

On the authority of Cunningha m v Harris on,5 some award must be made for the extra

domestic attendance his i njuries have necessitated, and for which there will b e a con-

tinuing need. Si nce his discharge from hospital, t he [claimant’s] mother has waited on

him and rendered h im domestic service. He should recover compensation for t he value

of her service. As was said by my brother Will iams J in the Barbados Court of Appeal

in Sandiford v Prescod:6

The task of a mother in bri nging her offspri ng to maturity can be thankles s

enough as it is, without her being expec ted to spend her more advanced years in

looking after her g rown child. If she is to do so, compensation should be provided.

If a handicapped person i s committed to her care, she is unlikely to be able to do

paid work elsewhere. In any case, she is under no obligation to rel ieve a defendant

of the consequences of hi s negligent act. There is no question of a [claima nt] being

required to mitigate da mages.

Similarly, in the Trinidadian case of Grey v John,7 where the claimant had been seri-

ously injured in a road accident and his daughter had given up her employment

for ve months in order to look after him, Ramlogan J held that, on the authority

of Donnelly v Joyce,8 the claimant was entitled to the proper and reasonable cost of

nursing services: ‘It is because there is a need for services that there is a loss, and,

once that loss results from the wrongdoing of the defendant, then the [claimant] is

entitled to an amount which would compensate him’. Accordingly, the claimant was

entitled to an amount equivalent to the wages his daughter had lost during the ve-

month period.

3 Murphy v Mills (1976) 14 JLR 119 (Court of Appeal, Jamaica); Fenton v Blair (2004) Supreme Court,

Jamaica, No CL 1995/F-181 (unreported) [Carilaw JM 2004 SC 38].

4 (1979) High Court, Barbados, No 128 of 1978 (unreported) [Carilaw BB 1979 HC 14].

5 [1973] 3 All ER 463. See also Donnelly v Joyce [1973] 3 All ER 475; Hunt v Severs [1994] 2 All ER 385;

Coleman v McDonald (1979) 16 JLR 490 (Court of Appeal, Jamaica) (pp 411–13).

6 (1977) 12 Barb LR 55, at 63.

7 (1993) High Court, Trinidad and Tobago, No 1332 of 1985 (unreported). See also Chr istopher v

Rampersad (2001) High Court, Trinidad and Tobago, No SC 1063 of 1996 (unreported) [Carilaw TT

2001 HC 109].

8 [1973] 3 All ER 475.