Donna Bailey (an infant by her father and next friend Vernon Alfred Bailey) Plaintiff/Appellant v 1. Cyril Moukram 2. Rauldon Phillip 3. Rupert Williams 4. Dudley Duncan Respondents [ECSC]

JurisdictionCaribbean States
CourtEastern Caribbean Supreme Court
JudgeCECIL LEWIS, C.J. (Ag.), ST. BERNARD, J.A., E.L. St. Bernard, LOUISY J.A. (Ag.), Allan Louisy, ACTING CHIEF JUSTICE
Judgment Date25 Jan 1972
Neutral Citation[1972] ECSC J0125-1
Docket NumberCivil Appeal No. 7 of 1972
[1972] ECSC J0125-1

IN THE COURT OF APPEAL

Before:

The Honourable the Acting Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Louisy (Ag.)

Civil Appeal No. 7 of 1972

Between:
Donna Bailey (an infant by her father and next friend Vernon Alfred Bailey)
Plaintiff/Appellant
and
1. Cyril Moukram
2. Rauldon Phillip
3. Rupert Williams
4. Dudley Duncan
Respondents

E.A. Heyliger for appellant

1st respondent in person

2nd respondent not served, not present and not represented M. Bishop for 3rd and 4th respondents

CECIL LEWIS, C.J. (Ag.)
1

This is an appeal by the plaintiff/appellant against an award of damages in her favour made by a judge of the High Court in an action against the respondents in which she claimed damages for personal injuries sustained through their alleged negligence.

2

The plaintiff/appellant's complaint is that the amount of damages is insufficient to compensate her for the injuries which she has suffered. She is also appealing against that part of the trial judge's order whereby he imposed on her liability to pay one third of the taxed costs of the third and fourth respondents, her claim against them having been dismissed.

3

The facts of the case which need only be briefly referred to are: On November 1, 1971, the appellant, then a school girl aged 16, was a passenger for reward in a bus owned by the third defendant which was being driven alongMelville Street by the fourth defendant, his servant, when it came into collision with another bus owned by the first respondent and driven by his servant, the second respondent. As a result of the collision, the plaintiff/appellant suffered an injury to her right foot which necessitated excision of the tendons of three toes and an operation for plastic surgery. the trial judge came to the conclusion after an exhaustive examination of the facts that the appellant's injury was caused solely by the negligence of the second respondent, the servant of the first respondent, and he accordingly gave judgment against these two parties, for $2569.50 with costs. Of this amount, $1200 represented general damages and the remainder, special damages.

4

Neither the judge's finding as to liability nor the quantum of the award has been challenged by either the first or second respondents. The appellant, however, has attacked the award of general damages on the ground that the trial judge acted on wrong principles in the assessment thereof, with the result that the amount which he gave was so very small as to make it an entirely erroneous estimate of the compensation to which she was entitled.

5

In describing how she received her injuries the appellant said that while on the bus she felt a sudden impact and was thrown forward. She then noticed that her right foot was bleeding on the instep. She was taken to the general hospital where she remained for ten days until the 11th of November when her father took her to a clinic at Richmond Hill called Salus Clinic run by Dr. Friday. Dr. Friday examined her and gave his opinion that "a splinter of wood had pierced the foot between the second and third toes from the sole, from underneath and made a track of about three inches through the tissue". In his report he stated that as a result a deep absess had formed and he "had to lay open the track of the foreign body and debrided sloughing tendons and subcutaneous tissue."She went at Dr. Friday's clinic on November 11, on the 12th she had an operation when the surgeon excised the tendons of three toes which was where the absess was located. She was allowed to go home and remained an out patient from November 12 to December 8. She was re-admitted on December 9 and remained there until December 18 during which period a second operation was performed and a skin graft was done to the raw area, i.e. the instep of the right foot. She left the clinic on December 18 and remained as an out patient till January 15 going every other day for treatment. She could not return to school until February. So she spent a period of 20 days as a patient in the hospital and at Dr. Friday's clinic, and was an out patient at the clinic for 54 days.

6

Dr. Friday, in his report said that the wound would lead to severe scarring of the skin unless a graft was applied, and that was done, but the presence of a scar on that area of the foot would be uncomfortable with ordinary footwear. The excision of the tendons of the three toes meant that she lost the ability to lift these toes. There would also be permanent disability in that she would have a permanent swelling of the injured foot, the scarring would be permanent, and she would not be able to extend the second and third toes. The swelling of the foot, he said, was due to foot strain because of the loss of tendons. The fact that there was a loss of tendons imposed additional strain on the remaining tendons, "and what will probably happen is that her activities will accomodate to suit the strength of the foot." The girl herself said that when she returned to school and started playing rounder she found that she was not active as she was before, that her balance was affected. It is quite clear that she will suffer permanent disability in the sense that any activity which involves running, jumping or skipping will be modified. Any form of work which requires prolonged standing will be denied her. Hercounsel argued here that the judge erred in failing to give proper weight "to the nature and gravity to the resulting physical disability." This is the second of the considerations which Wooding C.J. laid down in Comillac v. St. Louis 7 W.I.R. 491 at 492 which a judge should bear in mind in assessing damages, aid it is clear from the judgment that the trial judge did not take this consideration into account. He further contended that when Dr. Friday said that "her activity will accomodate to suit the strength of the foot" the trial judge misunderstood what the surgeon meant to convey, and used this statement as a means, as he submitted, of mitigating the damages. What the surgeon meant to convey was that she would have to adjust her activities to suit the...

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