Newton Mitchell Victoria Smith Appellants v Lucy Batson Respondent [ECSC]

JurisdictionCaribbean States
CourtEastern Caribbean Supreme Court
JudgeGORDON. J.A., LEWIS. C.J., GLASGOW. J. A.
Judgment Date30 Jan 1970
Neutral Citation[1970] ECSC J0130-1
Docket NumberCivil Appeal No. 3 of 1969
[1970] ECSC J0130-1

IN THE COURT OF APPEAL

Before:

The Honourable the Chief Justice

The Honourable Mr. Justice Gordon

The Honourable Mr. Justice Glasgow (Acting)

Civil Appeal No. 3 of 1969

Between:
Newton Mitchell

and

Victoria Smith
Appellants
and
Lucy Batson
Respondent

C. Bristol and A. Taylor for the Appellants

E.A. Heyliger instructed by O. Gill for the Respondent

GORDON. J.A.
1

On the 4th of February, 1967, the respondent in this action, when travelling as a passenger on a bus owned by the appellants, was the victim of an accident resulting from the bus having run off the road. She suffered serious physical injuries, namely:

a wound on the scalp; concussion fracture of the skull; fracture of the lower jaw; a wound on the left ankle,

2

which necessitated her being hospitalized for 23 days, one week of which she was in a state of unconsciousness. According to Mr. Holgate, the Surgeon Specialist, her injuries were serious and dangerous to life.

3

The medical evidence further disclosed that resulting discomforts were headaches, disturbed sleep and a possible impairment of personality.

4

In an action brought by the respondent in the High Court liability was not denied, and on an assessment of damages by the learned trial judge, an award in the following terms was made:

$

Special damages

–848.78

General damages

pain and suffering

–5,500.00

Impairment of personality

–4,000.00

Logs of wages

–1,600.00

Aggregating

–11,948.78

5

Before this Court counsel for the appellants restricted his argument to the award made for general damages, urging that on the principle enunciated by Jowett, L. J. inBritish Transport Commission v. Gourley, (1955) All E.R.797 at p, 802, the learned judge had erred in his assessment of damages for loss of wages in that he had made no allowance by way of deduction for tax to which the respondent may have been liable. Counsel abandoned this point, however, when this Court pointed out that no tax would be payable on the basis of the assessment for loss of wages made by the learned trial judge.

6

Counsel for the appellants stressed that there was an overlapping in respect of the award for pain and suffering -$5,500.00, and that for impairment of personality— $4,000.00 under the head general damages. CitingCornilliac v. St. Louis, (1964) 7 W.I.R. 491 in support, he argued that in that case the award for general damages for resulting physical disability had been made on the basis of positive medical evidence, whereas in the instant case the medical evidence relating to the resulting effect of the injuries suffered was indefinite and such as could hardly be regarded as being of the quality necessary for justifying the award which the trial judge had made.

7

Counsel for the respondent opposed this argument and urged that although the trial judge had itemised general damages under three sub-heads, the third sub-head, loss of wages, should strictly speaking have been classified as special damages. Consequently he submitted that the amount awarded for general damages in effect was only $9,500.00 which was conservative having regard to the circumstances.

8

In so far as the medical evidence in this case was concerned it was sparse, and did not assist the Court in forming a conclusion as to how long the resultant physical disability and discomfort to the respondent was likely to continue. The somewhat scanty and cursory nature of the medical evidence must have placed the trial judge in a very-awkward position and rendered his task more difficult than it need have been.

9

In spite of the unavailability of the X-ray photographs of the fractured skull, which circumstance prevented Mr. Holgate, the surgeon, from expressing any positiveopinion as to how long and to what extent the resultant damage was likely to continue, he did say that on the 20th March, 1967, a month or so after the respondent had been discharged from hospital, she complained of dimness of vision, weakness in walking and headaches, all of which symptoms he stated, were the probable effects of the injury to the head. While he did not think they would be permanent the fact remains that he never saw her again professionally.

10

In their evidence two years after the accident, the respondent and her husband both deposed to the fact that the former was still suffering from ill-effects of the accident, and the learned trial judge accepted this evidence.

11

Dr. Clyne, another medical witness, deposed to the fact that in July, 1966, prior to the accident when he had occasion to examine the respondent during a pregnancy she was a normal, healthy woman. In August, 1967, when he again had occasion to examine her, she complained of headaches, dizziness, nervous strain and of being subject to hallucinations. These symptoms, in his opinion, were attributable to the head injury which he knew she had had. He treated her with tranquilisers. In August, 1969, he again saw the respondent. She then complained of a sore throat, gas and a chronic headache on the right side of the head. He treated her and stated that her condition was due to post concussion syndrome. On that occasion her reflexes and blood pressure appeared normal.

12

Apart from this, the trial judge was without assistance from the medical witnesses as to the residual effect of the accident on the general health of the respondent. He however elected to accept the evidence of the respondent, and that of her husband, as to the continuation of her discomfort which she stated dated from the accident.

13

In the course of her evidence, the respondent testified to a loss of any desire for marital relations, and in this regard she was supported by the evidence of her husband. Counsel for the appellant queried the award in this connection, urging that there was no evidence that such a complaint had been made to any of the doctors who gave evidence at the trial, and that in the circumstances the award under this head was unjustified. He cited the case ofSimon v. Nurse, 12 W.I.R. 106, which he urged as authority for the proposition that such a complaint should, have been made to...

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