Asceleta Bryan Appellant v Attorney General Respondent [ECSC]

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: CECIL LEWIS, C.J. (Ag.),Acting Chief Justice
• Judgment Date: 24 April 1974
• Judgment citation (vLex): [1974] ECSC J0424-1
• Docket Number: CIVIL APPEAL NO. 5 of 1973.
• Date: 24 April 1974

[1974] ECSC J0424-1

IN THE COURT OF APPEAL

Before:

The Honourable the Acting Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Peterkin

CIVIL APPEAL NO. 5 of 1973.

Between:

Asceleta Bryan

Appellant

and

The Attorney General

Respondent

C. Francis and K. Forde for appellant

J. Fuller (Ag. Legal Assistant) for respondent

CECIL LEWIS, C.J. (Ag.)

1 On the 9th of April 1971, the appellant was knocked down and injured by a car belonging to the Government of Antigua. The car was used by the Governor of the State and was being driven by a chauffeur, a man called Cpl. Nimblett, who was acting in course of his employment at the time when the accident occurred.

2 The appellant issued a writ claiming compensation from the Government of Antigua and by virtue of the Crown Proceedings Ordinance she made the Attorney General of the State the defendant.

3 In her statement of claim she alleged that her injuries were caused by the negligent driving of the corporal of police and that as the result of such negligence she sustained several injuries particulars of which were given in her statement of claim. The defendant pleaded that the appellant's injuries were caused by her own negligence and denied liability for the said injuries. However, when the matter came on for hearing liability was admitted and the allegation of contributory negligence withdrawn leaving the assessment of damages as the only issue to be decided.

4 The appellant, as I indicated, before, claimed that she had suffered various injuries and called evidence in support of this allegation. Unfortunately, however, the doctors who treated her in hospital where, incidentally, she had to remain for three months and three days did not give evidence. It does not appear from the record why this was so. Whether they had already left the territory when the suit came on for hearing or whether they had not been summoned has not been disclosed. But be that as it may she was examined about a year after her accident by one Dr. Locker on the 9th of March and he issued a report on her condition on the 10th of March. When he gave evidence at the hearing he asked for permission to refer to the report which he had made in order to refresh his memory therefrom. Permission was given and the relevant part of the report as contained in his evidence is as follows:-

"I treated the patient for a pain in the left knee joint and a swelling of the light shoulder. On physical examination there was a limitation of movement of the left knee by about 10–15 degrees. There was a swelling on the night shoulder area. That swelling was due to an ununited fracture of the right clavicle. I had her x-ray history before me. The x-rays showed a fracture of the proximal ends of the left tibia and fibia. Union was satisfactory. There was a fracture of the left ulna. Union was also satisfactory. There was an ununited fracture of the right clavicle. Two bones of the left foot were fractured. The inner bone of the left arm was fractured. The right shoulder bone was ununited and that showed a swelling. In view of the proximity of the fractures of the left tibia and fibia (the knee joint) the patient is likely to develop arthritis at some subsequent date. The deformity of the clavicle does not alter her appearance. It may be that arthritic pain had already developed but this does not. show on the x-rays. Arthritic pain would probably start after 5 years. The patient will have pain from time to time and may have difficulty in walking for the rest of her life if it develops, The position would get worse rather than better. She might be uncomfortable but not totally handicapped and so she can undertake gainful employment. I have the x-rays in my office. Her life expectancy would not be shortened."

5 In cross-examination Dr. Locker said. "It would take on average 12 to 15 weeks for such a foot injury to be cured. It would take about8 weeks for the hand to get better. The clavicle would take about 6 weeks". In re-examination he said "even after the fractures were healed, the plaintiff was still having pains."

6 It was clear free that evidence that there were at least six broken bones. These were the right clavicle, the left tibia, the...