Marva Rogers v Henry Paryag

• Jurisdiction: Caribbean States
• Judge: Actie, J
• Judgment Date: 03 May 2022
• Judgment citation (vLex): [2022] ECSC J0503-1
• Court: Eastern Caribbean Supreme Court
• Year: 2022
• Docket Number: CLAIM NO. GDAHCV2014/0178

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(CIVIL)

Before:

The Hon. Mde. Justice Agnes Actie High Court Judge

CLAIM NO. GDAHCV2014/0178

Between:

[1] Marva Rogers

[2] Marva Rogers (Executrix of the Estate of Raleigh Wint also spelt Whint, deceased)

Claimants

and

[1] Henry Paryag

[2] William Alvarez

[3] Tanya Edwards

[4] Attorney General of Grenada

Defendants

Appearances:

Mr George Prime with Keith Scotland for the Claimants

Dr. Francis Alexis QC for the First Defendant

Mr. Adeybayo Olowu of the Attorney General's Chambers for the Second, Third and Fourth Defendants

Actie, J

1 This claim deals with the determination of liability for the injury and death of Raleigh Wint (also spelt Whint) (hereafter “the deceased”) resulting from a motor vehicular accident which necessitated medical treatment. Marva Rogers brings this action in her personal and beneficial capacity, and as Executrix of the estate of the deceased and pursuant to Section 2 of the Law Reform (Miscellaneous Torts) Act 1.

Claimants' Case

2 By claim form filed 10 ^th April 2014 the claimants (hereafter collectively referred to as “the claimant”) claim as against the first defendant, Henry Paryag for the following reliefs:-

As against the second, third and fourth defendants:

• (1) Compensation for loss and damage resulting in bodily injuries to and the ultimate death of the deceased, caused by the negligent driving of motor vehicle Reg. No. PAF890 by the first defendant on or about the night of 10 ^th October 2013 on the Grand Anse main road in the parish of Saint George in the State of Grenada;

• (2) Damages under the Law Reform (Miscellaneous Torts) Act Cap. 167 for the benefit of the estate of the said deceased for the loss of expectation of life and consequential loss ensuing from the death of the deceased.

• (3) Such further or other relief as the court shall deem fit.

• (4) Interest and Costs.

• (1) Compensation for the premature and negligent discharge of the deceased from the General Hospital resulting in pain and suffering and eventual death of the deceased on 16 ^th October 2013;

• (2) Damages under the Law Reform (Miscellaneous Torts) Act Cap 167 for the benefit of the estate of the deceased due to the loss of expectation of life and consequential loss ensuing from the death of the deceased;

• (3) Such further or other reliefs as the court may deem just.

• (4) Interest and Costs.

3 It is the claimant's pleaded case that on or about the evening of 10 ^th October 2013, the deceased was in the process of crossing the Grand Anse main road, when he was struck down by a vehicle owned and driven by the first defendant. On impact, the deceased was thrown into the air falling onto the bonnet of the vehicle, then off the front of the vehicle onto the road and run over by the first defendant.

4 The claimant contends that the accident was caused solely by the negligent driving of the first defendant, and that, as a consequence of the accident, the deceased sustained multiple injuries and suffered pain until his death.

5 The particulars of negligence claimed of the first defendant are as follows:

• (1) Failing to keep any or any proper lookout;

• (2) Failing to observe or heed the presence of the deceased as he was crossing the said road;

• (3) Failing to observe in time, or at all, the presence of the deceased in the middle of the road;

• (4) Driving at a speed that was excessive and unsafe in all the circumstances;

• (5) Approaching a pedestrian crossing at a speed that was excessive and unsafe in all the circumstances;

• (6) Failing to apply his brakes in time or at all or otherwise so to steer, manage or control the said vehicle as to avoid colliding with the deceased;

• (7) Failing to give any or any adequate warning of his approach; and

• (8) Driving without due care and attention.

6 The deceased was taken to the General Hospital on the night of the accident, and was discharged on 14 ^th October 2013, (three (3) days after the accident) by either the third defendant acting under the supervision of the second defendant, or by both the second and third defendants, acting jointly over the objections of the first named claimant.

7 The claimant avers that in all the circumstances, the discharge of the deceased was either negligent or reckless or both and resulted in the death or acceleration of the death of the deceased. The claimant further avers that it cannot, by any standards, and certainly not by the standards of good medical care and practice, be consistent with normal medical practice and treatment to have discharged such a person as the deceased with the injuries with which he presented upon admission to the General Hospital, within four days of his said admission.

8 The particulars of negligence claimed of the second and third defendants are as follows:

• (1) Discharging the deceased from the General Hospital despite his obvious debilitating injuries at the time of discharge;

• (2) Discharging the deceased when he was unable to ambulate and to care for himself;

• (3) Discharging the deceased when he was unable to sit or stand;

• (4) Discharging the deceased without first ensuring that he had available to him, home care facilities to properly continue his treatment and healing;

• (5) Failing to treat the deceased adequately or at all;

• (6) Wrongly concluding that the deceased was not suffering from any serious condition;

• (7) Discharging the deceased with broken ribs visibly probing his thoracic region; and

• (8) Failing to pay any or any sufficient heed to the claimant's complaints about the irregular breathing of the deceased and his condition.

9 As to the recklessness of the second, third and fourth defendants, although pleaded and particularised, same was not advanced in submissions by the claimant, therefore the court is not required to consider the point.

10 Immediate upon his discharge from the hospital, the deceased's condition deteriorated so rapidly that he had to be readmitted to the General Hospital on or about 15 ^th or 16 ^th October 2013 and died on 16 ^th October 2013. The claimant avers that the second, third and fourth defendants' position that the deceased's breathing sounded normal can only serve to confirm the negligence pleaded given his representation one day after discharge with dyspnoea followed by death due to pulmonary thromboembolism. The claimant contends that dyspnoea is a manifestation of pulmonary embolism or thromboembolism, and that the second, third and fourth defendants' position that the cause of death has nothing to do with them is a compounding of their negligence with callousness.

11 The claimant contends that prior to his death, the deceased suffered needless and excessive pain, dying as a consequence, and that by reason of the injuries and death of the deceased, the claimant suffered loss and damage.

First Defendant's Case

12 The first defendant in a succinct defence admits that he was driving motor vehicle Reg. No. PAF890 on 10 ^th October 2013. He avers that on said date it was raining heavily, and he was driving at the speed of about 20 to 25 mph.

13 The first defendant denies that the deceased was thrown into the air and ran over, and contends that the deceased, without warning, came from behind a parked vehicle and stepped into the road, walking into and striking the extreme left of the vehicle.

14 The first defendant also states that the deceased was wearing dark clothing 2, and denies that the injuries suffered by the deceased were caused by his negligence.

Second, Third and Fourth Defendants' Case

15 The office of the Attorney General filed a defence on behalf of the second, third and fourth defendants.

16 The third defendant denies that she was a medical practitioner employed at the General Hospital and, in particular, that she was a servant or agent of the Government of Grenada.

17 The second, third and fourth defendants assert that the discharge of the deceased in the circumstances was not irregular but consistent with normal medical practice and treatment of the deceased's case.

18 The second, third and fourth defendants deny that the care delivered to the deceased was negligent in any way. They aver that the deceased received the most appropriate care in the circumstances, and that the pain allegedly suffered by the deceased and his subsequent death were in no way a result of the negligent actions and/or omissions of the second, third and fourth defendants.

19 These defendants assert that at the Accident and Emergency Department, the deceased's shoulder was reduced, and he was transferred to the male medical ward where the second defendant attended to him and carried out routine medical checks. The second defendant ensured that the deceased's shoulder was stabilized and then referred the deceased to general surgery for his other reported injuries.

20 The deceased was evaluated by the general surgery team on the morning of 11 ^th October 2013. On physical examination, the deceased's breath sounds were auscultated normal and strong in both pulmonary fields and no abnormal findings were detected on examination of the deceased's chest. X-rays were ordered and it was found that there were fractures to the deceased's ribs. Further examination showed no flail chest, no pneumothorax nor pleural effusion was found.

21 Further examination of the deceased revealed that he was able to move his limbs, thus based on the findings of the examination and x-ray, the general surgeon concluded that the required course of treatment was pain medication and rest to allow healing, as, according to the third, second and fourth defendants, injury to ribs is normally treated with pain medication and oxygen therapy, which the deceased received.

22 The second, third and fourth defendants assert that the deceased was observed for over 72 hours during which time he remained...