Cheryl Jackson v Ira Barriero

• Jurisdiction: Antigua and Barbuda
• Judge: Michel, M.
• Judgment Date: 26 August 2025
• Judgment citation (vLex): [2025] ECSC J0826-1
• Docket Number: CLAIM NO. ANUHCV2021/0312
• Court: High Court (Antigua)

Between:

Cheryl Jackson

Claimant

and

Ira Barriero

Defendant

[2025] ECSC J0826-1

CLAIM NO. ANUHCV2021/0312

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL DIVISION)

Appearances:

Mr. Warren Cassell and Dr. David Dorsett, Counsel for the Claimant

Ms. Karen De Freitas-Rait, Counsel for the Defendant

DECISION

Michel, M.

1 On 17 ^th January, 2019 the Claimant was a passenger in a motor vehicle being driven by her husband when the Defendant, driving another motor vehicle, collided into the back of the vehicle in which the Claimant was a passenger, causing damage to the vehicle and injury to the Claimant.

2 The Claimant subsequently commenced the present proceedings against the Defendant by claim form and statement of claim filed on 12 ^th August, 2021. In her claim, the Claimant alleged that the accident was caused by the negligence and/or breach of statutory duty of the Defendant and that as a result she has suffered pain, injury, loss and damage.

3 The Claimant pleaded the following as her particulars of injury:-

• (i) Intervertebral disc bulge in lower cervical spine;

• (ii) Neuralgic pain radiating to her upper extremity with diminished sensation in ulna distribution of her both hands as a result of this injury;

• (iii) Numbness and pain in neck.

• (iv) Whiplash injury and disc bulge at level of C4/C5 with diminished sensation in ulnar distribution of right upper extremity including both little fingers;

• (v) mild subluxation of T2 on T3 — likely haematoma T2/T3 decompression and fusion 15/01/2018;

4 The Claimant further pleaded that to date, she suffers severe pains and is no longer able to enjoy the amenities of life, including playing, exercising, swimming and having sexual intercourse. The Claimant appended two medical reports of Dr. K.K. Singh to her statement of claim in support of her claim.

5 In her statement of claim, the Claimant pleaded special damages in the sum of $24,295.74. As a result of the pain, injury, loss and damage she allegedly suffered in the accident, the Claimant claimed as against the Defendant, damages (including general and special) for personal injuries and loss and damage sustained in the accident on 17 ^th January, 2019 caused by the alleged negligence of the Defendant and/or breach of statutory duty under sections 19(2), 19(12)(a) of the Vehicle and Road Traffic Regulations. She further sought an inquiry as to any further damages due for the actions of the Defendant, costs and interest.

6 The Defendant failed to file a defence to the Claimant's claim within the time limited by the Civil Procedure Rules 2000 (“ CPR 2000”) and judgment in default of defence was entered for the Claimant against the Defendant for an amount to be decided by the Court. A subsequent application by the Defendant to set aside the default judgment was refused by the Court.

7 The issue of the Defendant's liability having been crystallized by the default judgment, the only task remaining for the Court is to determine how much compensation is due to the Claimant based on the evidence she has adduced in support of her claim for special and general damages. This position was made clear by the Court of Appeal in Michael Laudat et al v Danny Ambo1 wherein Edwards JA opined:-

“Ordinarily, at an assessment of damages hearing the court would not enquire into matters of liability because the defendant, having failed to file an acknowledgment of service and/or a defence is taken to admit liability as pleaded. At the assessment of damages hearing, the court is not required to re-open the application or request for default judgment; and it would not be appropriate to go behind the default judgment order or assess the merits of the pleadings in relation to the cause of action while the default judgment stands. The issue of the defendant's liability having been settled by the default judgment, the only issue for the court is how much in compensatory damages is due to the claimant upon the evidence adduced by the claimant in proof of any special damages

claimed and general damages. Where damages for any pleaded causes of action have not been proven by the evidence, the claimant would generally not be entitled to damages under that head of claim.”

8 The Claimant filed a witness statement for the assessment of damages and the Defendant filed a witness statement on his behalf and the witness statement of an additional witness, Anita Tobitt. The Claimant also sought and obtained permission of the Court pursuant to Part 32 of Civil Procedure Rules (Revised Edition) 2023 (“ CPR 2023”) for Dr. K.K. Singh to be deemed an expert for the purpose of these proceedings. Dr. Singh produced an expert report in relation to the injuries sustained by the Claimant. Questions were put to Dr. Singh about his report in accordance with CPR 32.8 and he provided written responses to the questions.

9 In the written submissions filed on behalf the Claimant, it was submitted that the Claimant was seeking to recover the following:-

(1) General damages for pain, suffering and loss of amenities

(2) Special damages including loss of earnings

(3) Loss of earning capacity

(4) Future medical care

Each of the above heads will be dealt with in turn in this decision.

10 Counsel for the Defendant sought to raise and argue the issue of contributory negligence on the assessment of damages. This was vigorously opposed by Counsel for the Claimant. I shall discuss the issue of contributory negligence later in this decision.

11 I will first consider the Claimant's claim for general damages for pain, suffering and loss of amenities.

General Damages

12 It is well settled in that in assessing general damages, the court will consider: (1) the nature and extent of injuries suffered; (2) the nature and gravity of the resulting physical disability; (3) the pain and suffering endured; (4) the loss of amenities suffered; and (5) the extent to which the claimant's pecuniary prospects have been affected.2

The Nature and Extent of Injuries Suffered

13 The Claimant was born on 20 ^th February, 1973. She was just shy of 46 years old on the date of the accident on 17 ^th January, 2019 and is now 52 years old. The injuries she sustained in the accident are set out in the expert report of Dr. Singh filed on 14 ^th October, 2024 together with the expert report of Dr. Singh filed on 4 ^th April, 2025 providing answers to the written questions of the Defendant.

14 The Claimant attended the Mount St. John's Medical Centre after the accident and was assessed by medical personnel there as having a whiplash injury. She was sent home with medication within a few hours after investigations and was advised to wear a neck brace/cervical collar. A little less than a month later, the Claimant visited Dr. Singh on 13 ^th February, 2019. In a medical report prepared after examining the Claimant, Dr. Singh stated that an examination of the Claimant's skeletomuscular system confined to her cervical spine showed classical signs to conclude the following diagnosis:-

Dr. Singh further stated that an MRI confirmed his clinical diagnosis of the Claimant.

• (i) Intervertebral disc bulge in lower cervical spine.

• (ii) Neuralgic pain radiating to her upper extremity with diminished sensation inulna distribution of both her hands as a result of the injury.

15 Dr. Singh concluded in his report that the motor vehicle accident resulted in the Claimant suffering a whiplash injury and disc bulge at the level of C4/C5 with diminished sensation in the ulnar distribution of right upper extremity including both little fingers. He stated that the Claimant further suffers with tingling and numbness of both upper extremities.

The Nature and Gravity of the Resulting Physical Disability

16 In his February 2019 report, Dr. Singh noted that the Claimant still had temporary disability in the full functions of the upper extremity, however, her permanent physical impairment had been evaluated as per the “Guides to the evaluation of permanent impairment of American Medical Association” as 6% permanently disabled as a whole person. Dr. Singh further stated that the Claimant did not need any surgery at present because there were little signs of recovery on account of conservative lines of treatment but possibilities were that she may require surgery in future if her percentage of permanent physical impairment increases or her current level of abilities decreases. He stated that this percentage of permanent physical impairment will increase as the Claimant grows older on account of developing post traumatic degenerative joint disease.

17 In his answers to written questions put to him by the Defendant about his report, Dr. Singh stated that he had the opportunity to re-examine the Claimant with detailed neurological clinical evaluation on 12 ^th February, 2025. He stated that the Claimant's current disabilities according to the re-evaluation on 12 ^th February, 2025 still remained at 6% permanently disabled as a whole person and because of that there is no indication of surgical intervention at present but if the percentage of her permanent physical disability increases in the future or current abilities decease in the future, the Claimant would require surgery.

The Pain and Suffering Endured

18 In her witness statement the Claimant stated that she is still on pain killers. She stated that she has not been able to continue her employment as a yacht cleaner or obtain alternative employment because she is in constant pain. She stated that the accident has altered her life and that she now lives a life of constant physical pain and that her pain and suffering, physical and mental are real.

The Loss of Amenities Suffered

19 The Claimant stated in her witness statement that many of the things she used to do and enjoy before the accident, she is no longer able to do, including, playing, exercising, swimming and...