Evanson v Andrew E. Holm Ltd
| Jurisdiction | Antigua and Barbuda |
| Judge | Bishop, J.A. |
| Judgment Date | 26 June 1990 |
| Neutral Citation | AG 1990 CA 5 |
| Docket Number | Civil Appeal No. 11 of 1988 |
| Court | Court of Appeal (Antigua and Barbuda) |
| Date | 26 June 1990 |
Court of Appeal
Not yet available
Civil Appeal No. 11 of 1988
Mr. Gerald Watt for the appellant
Miss B. Lake, Q.C. and Miss J. Kentish for the respondents
Damages - Termination of pregnancy by suction and tubal ligation — Evidence that applicant sustained a fall about eight days before the suction curettage. Whether fall responsible for the vaginal haemorrhage and back pains which resulted in the termination of pregnancy — Whether the suction curettage performed to end the pregnancy caused the applicant to suffer recurrent cardiac arrythmia or tachycardia — General damages assessed to include award for increase in haemorrhage and loss of foetus.
On the 9th February, 1983, Joycelyn Evanson, a waitress and cashier employed by Andrew E. Holm Ltd. at Anchorage Hotel, fell on her hack while on duty, and suffered injury. At the time she was pregnant with her fourth child.
On the 17th February, 1988, her pregnancy was terminated by suction curettage at the Holberton Hospital. The procedure was performed by Mr. Ivor Heath, a surgeon who worked essentially in the fields of obstetrics and gynaecology from about 1960. He also carried out the procedure of tubal ligation to prevent future pregnancy.
In a Statement of Claim filed on her behalf on the 9th January, 195, it was alleged that she suffered the following injuries as a result of the incident (a) vaginal haemorrhage ((b) back pains, and (c) resulting termination of her eight week pregnancy. It was also asserted that as a result of the surgical procedure used to terminate the pregnancy, Joycelyn Evanson suffered the following further injuries: (a) cardiac arrhythmia and (b) tachycardia. Special damages of 4067.00 and general damages were claimed.
On the 17th March, 1988, judgment was awarded in the amount of $6,317.40 special damages and $15,000.00 general damages for pain and suffering. Total $21,317.40.
Joycelyn Evanson was dissatisfied with the award and filed a Notice of Appeal setting out the following ground: The learned trial judge erred when he assessed damages at $15,000.00 for pain and suffering only, basing his finding on the case Cornilliac v. St. Louis 7 W.I.R. 491 in that the evidence disclosed the loss of an 8-week pregnancy by the appellant due to medical termination of the said pregnancy necessitated by the resulting haemorrhage and threatened abortion as a result of the fall at the respondent's hotel.
Andrew E. Holm Ltd., through its solicitor, filed a respondent's Notice of Appeal on the 9th May, 1988:, contending that the decision of the trial judge ought to be varied (1) by setting aside (a) so much of the said judgment as adjudged that the respondent was responsible for the termination of pregnancy and the tubal ligation performed upon the appellant (b) so much of the judgment as adjudged that the appellant had not released the respondent from all further claims with respect to injury arising from the fall (c) the award to the appellant of $6317,40 special damages and $15,000.00 general damages, and (2) by ordering that judgment be entered for the respondent company or for the appellant in a lower figure for special damages and general damages, the said respective sums to be in accordance with the variation at (a) above, and that the appellant pay the respondent's costs of the appeal and in the court below to be taxed.
The following grounds were strenuously argued on behalf of the respondent:
- The learned trial judge erred in law in finding upon a balance of probabilities that the fall was the sole cause of the abortion which led to the termination of the pregnancy by suction curettage and tubal ligation. 2. The learned judge erred in law in failing to find that on a balance of probabilities, the plaintiff did not prove that the said termination of the pregnancy was occasioned by the fall. 3. The learned trial judge erred in failing to appreciate the distinction between suction curettage and the surgical procedure of tubal ligation which led to the appellant(s post-operative deterioration and occasioned the appellant's pain and suffering and consequential loss. 4. The learned trial judge's finding of causation of the termination of the pregnancy and the tubal ligation is contrary to the weight of the evidence.
There was no complaint with the finding of the trial judge that there was negligence on the part of the barman at the Anchorage Hotel, which led to the fall and injury suffered by Joycelyne Evanson.
It is necessary to recall the -following facts and circumstances of the appellant's medical history before and after the surgical procedures were performed.
During 1980, Joycelyn Evanson was a patient of Dr. Rodney Williams on a regular basis. He found that she exhibited symptoms of palpitation, dizziness, dyspnea (shortness of breath or difficulty in breathing) and occasional blackouts. She also had what the doctor called “an apical systematic murmur”. He was unsure of the diagnosis and he referred her to Dr. Luther Wynter who diagnosed “a mitral valve prolapse”. The court below did not hear from Dr. Wynter (he had passed away by that time), not did it have the benefit of any record kept by him. It was the evidence of Dr. Williams that his patient told him that she was told so by Dr. Wynter.
From about October, 1980, the appellant knew that she was suffering from cardiac insufficiency and that, as she expressed it, “You don't get better from cardiac insufficiency; you do all the work in the work and nothing happens, and then when you're doing nothing it comes on”.
In 1981, on one of the many visits to the United States of America, the appellant went to a Dr. Roker, a cardiologist, who thereafter provided medical attention (in New York) along with Dr. Melville Lambert (in Antigua) by monitoring her condition and prescribing where necessary.
In 1982 it was Dr. Lambert who monitored her cardiac insufficiency at regular intervals, though she also paid two visits during that year to Dr. Williams. He testified that on those occasions she appeared to him to be fairly healthy.
An unsatisfactory feature of the trial was that the learned judge did not have the benefit of either seeing or hearing Dr. Lambert testify. He was undoubtedly a vital witness with respect to the appellant's heart condition before and after she fell. So too with Dr. Roker. There was as no explanation can record for the absence of either witness, and there came to mind the Australian case of O'Donnell v. Reichard [1975] V.R. 916 in which it was stated (at page 929):
“Where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call if that person's evidence would be favourable to him, then although the injury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that the person's evidence would not have helped the party's case.”
As far as I could see, in the instant case, no explanation having been proffered for the absence of the doctors, the learned judge was left to consider the interpretation by Mr. Heath of such of Dr. Lambert's notes and other records as were made available. Thus the analysis of ti-m case had to he carried out with this clearly in mind.
In January, 1983, the appellant went to New York on a visit to her husband. According to her evidence, she discussed with Dr. Roker, the medical implications of becoming pregnant. He told her that she could have children but would have to be monitored in New York when she was 7 months pregnant. The trial judge was not in a position to know what prompted such ac vice. The appellant became pregnant and thereafter she went to Dr. Lambent. She told the court below that when Dr. Lambent learnt that she was pregnant, he just laughed and said ‘this is the first patient like this’. In the absence of explanation from the doctor there could be no worthwhile speculation on what was meant by the doctor's reaction.
On the 4th February, 1983, Joycelyn Evanson went to Dr. Lambent for a crack up in connection with her pregnancy; according to her, he told her that there was a vaginal haemorrhage. Three days or so later she was examined in New York and she was told that she had a urinary tract infection. She testified to the effect that she preferred the latter diagnosis but not only was there no explanation from her for her preference, but there was no positive medical evidence to support her statement that she had a urinary tract infection.
In his evidence Mr. Heath explained that Dr. Lambert's chart of the 5th February, 1983, noted “spotting since yesterday”. In addition, Joycelyn Evanson said under cross-examination: “By the 4th February, 1983, I had sirens of blood coming-from-my private parts”. Mr. Heath interpreted the note of Dr. Lambent and the evidence of the, appellant to mean that there was spotting per vagina (“blood coming out through the vagina”); and he said further: “It is a bleeding which can be slow or profuse. A bleeding can be a haemorrhage condition”.
The chart dated. 5th February, 1983, also stated “no haemor”, and Mr. Heath interpreted it as ‘no haemorrhage’. It remained uncertain whether Dr. Lambent told the appellant on 4th February 1983, that there was vaginal spotting but no haemorrhage. A medical report written by Dr. Lambent on 5th February, 1983, showed as a provisional diagnosis: “threatened abortion”, and other notes of his which were recalled or interpreted by Mr. Heath, showed multiple fibroids in the body of the uterus for which antibiotics were prescribed.
Dealing with the appellant's case Mr. Heath gave his opinion an what might cause blood in the vagina. He mentioned (1) fibroids in her uterus which is...
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