Anita Tobitt v Stanford Frederick Ancillary

• Jurisdiction: Antigua and Barbuda
• Judge: MATHURIN, M,Cheryl Mathurin,Master
• Judgment Date: 13 October 2010
• Judgment citation (vLex): [2010] ECSC J1013-1
• Court: High Court (Antigua)
• Docket Number: ANUHCV2006/0026
• Date: 13 October 2010

[2010] ECSC J1013-1

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Before:

Master Cheryl Mathurin

ANUHCV2006/0026

Between:

Anita Tobitt

Claimant

and

And Grand Royal Antiguan Beach Resort Limited

Defendant/Ancillary Claimant

and

Stanford Frederick

Ancillary Defendant

Appearances:

Mr. Kelvin John with Mr. Loy Weste for the Claimant

Mr. Dexter Wason for the Defendant/Ancillary Claimant

ASSESSMENT

MATHURIN, M

1 On the 16 ^th December 2004, the Claimant (Ms Tobitt) was a passenger in a bus driven by the Ancillary Defendant (Mr. Frederick) who was hired by the Defendant (Royal Antiguan) to transport workers to and from work. The bus struck an object and caused it to bounce and skid off the road causing injuries to Ms Tobitt's back and neck. Judgment was entered against both the Defendant and Ancillary Defendant and this is an assessment of the damages that Ms Tobitt is entitled to as a result. At the time of the accident, Ms Tobitt was 35 years old.

Medical reports and evidence

2 In a medical report prepared by Dr K.K. Singh exhibited to the amended Claim dated the 2 ^nd April 2009, Ms Tobitt was diagnosed with "prolapsed of lumbar inter-vertebral disc/lumbo-sacral disc with diminished sensation in the dermatome distribution of L5-S1" and was referred to the Belmont Clinic to do an MRI after which it was determined that the radiological findings were consistent with central and left lateral disc herniation at L5/S1 with impingement of the thecal sac.

3 In the final report prepared by Dr K.K. Singh on the 11 ^th August 2009 wherein which he examined the entire clinical picture of Ms Tobitt, he concluded that she was 8% permanently disabled as a further increase in her permanent physical impairments and that she may require surgery in the future to maintain her current level of abilities. The doctor also stated that she will develop post traumatic degenerative joint disease as she grows older which would increase the percentage of the permanent physical impairments in future. The doctor also stated that there was no indication for spinal surgery at this time in a letter dated 5 ^th September 2009.

Ms Tobitt's evidence

4 Ms Tobitt filed an affidavit in support of the assessment of damages on the 18 ^th June 2010. In this affidavit, she stated that immediately following the accident, the Defendant paid for her out-of-pocket medical expenses but has paid none following the Judgment. She exhibited two medical receipts for consultations on the 2 ^nd July 2009 and the 10 ^th August 2009. The receipts total $930.00.

5 Ms Tobitt has also exhibited an estimate of what future surgery will cost her if it becomes necessary. The estimate was prepared by Consolidated Medical Management Limited in Trinidad in the sum of US$22,529.50.

6 Ms Tobitt states that prior to the accident, she was employed as a waitress earning the sum of $312.00 plus service charges of $100.00 per week. She states that as a result of her injuries, she has been unable to maintain any gainful employment which requires her to lift items, be constantly mobile or to sit for any extended period at a desk job. She states that she has tried to perform different odd jobs, the longest of which was for three and a half weeks but had to leave due to her illness. She states that she is unable to maintain a job as a direct result of her injuries and permanent disability of 8%.

7 Ms Tobitt also states that she continues to experience severe pain, discomfort and suffering in her neck and lower back. She says that she finds it difficult to sit in an upright position for any extended period of time and is unable to perform normal everyday functions such as driving, walking, standing, bending and lifting items and cannot participate in any outdoor activities with her son. She states that she is unable to participate in any sexual activity and that her relationship with her partner has broken down and she has been unable to maintain any further intimate relationships since.

8 Counsel for the Claimant has referred me to several authorities which he states would assist in the determination of the quantum of damages in this matter however he has provided no analysis as to the relevance to this claim. I have taken these authorities into consideration and in comparing similar type injuries and circumstances, I think the matter of Celia Hatchett v First Caribbean International Bank BVIHCV 2006/0227 was of most assistance. In that case Ms Hatchett suffered back injuries which comprised "central disc herniation of her lumbar L5/S1 vertebrae with degenerative disc disease at L4/L5 disc level." Dr.Salian stated in that matter that the injury would deteriorate as a result of age resulting in radicular symptoms, stiffness, muscle, motor and sensory loss which would require continued treatment or maybe surgery. That injury was analyzed by the court as being on the top end of the moderate category for back injuries in accordance with the Judicial Studies Board Guidelines for the Assessment of Damages in Personal Injury Cases.

General Damages

9 On the question of general damages, the law...