Laura Marrocco Claimant v Attorney General of Antigua & Barbuda Defendant [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: MATHURIN, M,Cheryl Mathurin,Master
• Judgment Date: 24 October 2006
• Judgment citation (vLex): [2006] ECSC J1024-1
• Court: High Court (Antigua)
• Docket Number: CLAIM NO. ANUHCV1997/0240
• Date: 24 October 2006

[2006] ECSC J1024-1

IN THE HIGH COURT OF JUSTICE

Before:

Master Cheryl Mathurin

CLAIM NO. ANUHCV1997/0240

Between:

Laura Marrocco

Claimant

and

The Attorney General of Antigua & Barbuda

Defendant

Appearances

Ms Tracey Benn for the Claimant

Mrs. Carla Brookes-Harris for the Defendant

MATHURIN, M

1 On the 24^th January 1997, the Claimant (Mrs. Marrocco) who was 67 at the time, was sightseeing at Shirley Heights in English Harbor when she fell backwards off a steep drop about 4 feet below the level of the path where she was walking. The issue of the liability of the Defendant was determined before Joseph-Olivetti J. on the 14^th April 2005 and it was found that the Government was wholly liable for the accident and had to pay to Mrs. Marrocco damages to be assessed. The parties agreed to do the assessment by way of written representations and all witness statements and submissions were filed by the 19^th May 2006.

Special Damages

2 Ms Marrocco is claiming the sum of EC $12,183.14 as special damages. This amount is broken down as follows;

(a)	Halliburton Hospital	625.00
(b)	Adelin Medical Centre	4298.00
(c)	Barrymore Hotel	261.90
(d)	Airfare to Rhode Island	2110.73
(e)	Adaptive commode	161.97
(f)	Carey Limousine NY Inc	2834.54
(g)	Walker with adaptive device	1890.00
(h)	Custom fabricated arm state with thumb	283.50
	Total	12,183.14

3 Counsel for the defendant has agreed the special damages claimed in relation to items (b) and (d) which relate to the bill for Adelin Medical Centre and the airfare but challenges all the other items listed. Counsel submits that based on the authority ofHayward and another v Pullinger & Partners Ltd (1950) 1 KBD 581 and Ilkiw v Samuels (1963) 1 WLR 991 wherein it is established that special damages which are generally capable of exact calculation have to be specifically pleaded and proven. A quotation of Diplock J in Ilkew v Samuels (supra) is ample support for this proposition.

"Special damage in the sense of a monetary loss which the plaintiff has sustained up to the date of trial must be pleaded and particularized… it is plain law… that one can recover in an action only special damage which has been pleaded, and, of course, proved."

In the absence therefore of any proof, I am limited to a consideration of the special damages which are supported by evidence.

4 There is no supporting documentation for items (a), (c), (e) and (g) and as such these items will be disallowed. In Ms Marracco's affidavit of 9^th May 2006 at paragraph 17, she swore that the cost of the custom fabricated arm stat with thumb was met by Medicare and as such this amount will also be disallowed (item (h)).

5 The only outstanding issue is the cost of the limousine from New York to Rhode Island in the amount of $2,835.54. Counsel for the Defendant submits that this is an unreasonable expense and that the Claimant should have instead availed herself of transportation by air, which would have been cheaper. Ms Marracco's description of her journey by air is graphic in her affidavit. She states"I was transported from Antigua… by airplane using American Airlines. It was such a very distressing, painful and uncomfortable trip… I had to board the planes through the cargo section … even though two, three seats were assigned to me, it was still so uncomfortable and painful even though I was given painkillers… From New York to Rhode Island, I had to be transported via a limousine because it was the only spacious and comfortable vehicle to accommodate me having to be in a lying position with my arm and leg sticking out from being in the cast."

6 I have no difficulty in awarding the cost of the limousine to Ms Marracco. It is clear that this presented her with a certain amount of comfort in circumstances where further travel by air proved distressing, painful and uncomfortable. In summary, special damages areawarded by agreement in the sum of $6,408.73 in addition to the sum of $2,835.54 which represents the cost of the limousine. This amounts to a total of $9244.27.

General Damages

7 On the question of general damages, the law is settled. The case ofCornilliac v St Louis (1965) 7 WIR 491 is the locus classicus on this point and Wooding CJ set out the considerations to be borne in mind in assessing general damages;

• (a) The nature and extent of the injuries sustained

• (b) The nature and gravity of the resulting physical disability

• (c) The pain and suffering experienced

• (d) The loss of amenities if any

• (e) The extent to which pecuniary prospects are affected

8 Further, applying the principles inHeeralall v Hack Bros. (1977) 15 WIR 117, the law expects an award of fair compensation, fair to Ms Marrocco for what has happened to her through the negligence of the defendant and fair for the defendant to pay for such negligence. Such damages cannot be perfect compensation, but it will be fair compensation for her injuries and for the social, economic and domestic consequences to her.

9 Ms Marrocco sustained a fracture to her intra-articular right upper end tibia and fractures of the right distal radius and distal ulna. She returned to Rhode Island in the United States where she was treated by Dr Steven Graff and undertook additional examinations which confirmed a traverse fracture and bycondylar non-displaced tibia plateau fracture of the right knee. Ms Marrocco was hospitalized in Rhode Island and was eventually transferred to a rehabilitation centre to improve and strengthen the function of her arm and leg. She stayed there for two and a half months. Ms Marracco states during rehab, she could bear no weight on her right side, she had to be fitted with a hinged knee brace that she describes was extremely uncomfortable and painful. After being discharged, she states that she had to use a walker for six months. She states that because of her injuries, she is no longer able to perform certain activities for any length of time without experiencing pain and discomfort.

10 Counsel for the Claimant has submitted several medical reports in support. On the 1^st February 2007, in support of the injuries alleged, Dr Graff isolated her injuries to the right wrist and right proximal tibia. Upon her discharge from St Josephs Hospital, she continued a regular regime of visits for treatment of the injuries and by April 1997, the reports of her recovery were very optimistic

"X-Rays of the wrist show complete healing… The ulna fracture is completely healed." See Report dated April 11, 1997

"X-Rays today demonstrate complete healing of the tibia...