Mayers v Deep Bay Development Company Ltd
| Jurisdiction | Antigua and Barbuda |
| Judge | Joseph-Olivetti, J. |
| Judgment Date | 07 November 2003 |
| Neutral Citation | AG 2003 HC 52 |
| Docket Number | 241 of 1993 |
| Court | High Court (Antigua) |
| Date | 07 November 2003 |
High Court
Joseph-Olivetti, J.
241 of 1993
Henry Forde, Q.C. with Solicitor Colin Derek for the claimant.
Joyce Kentish, Kendrickson Kentish, Charlesworth Browne, and George Lake of Lake and Kentish for the defendant.
Negligence - Liability — Causation — Claimant's vertebra was fractured when part of a wall fell off and struck her in the region of the middle of her back in the shower of the defendant's hotel — Claimant was later diagnosed with Reflex Sympathetic Dystrophy Syndrome — Whether the injury gave rise to Reflex Sympathetic Dystrophy Syndrome — Whether the claimant developed Reflex Sympathetic Dystrophy Syndrome or some other form of the chronic pain syndrome as a result of the accident — Judgment for the claimant.
Damages - Personal injury — Claimant suffered from Reflex Sympathetic Dystrophy Syndrome — Pain suffering and loss of amenities — Future medical care — Future domestic aid — Future gardening expenses — Lost pension rights — Past gardening expenses — Past loss of earnings — Past medical and related expenses — Past domestic assistance — Claimant awarded general and special damages.
Some events bring home to us the frailty of human beings and how much despite our protestations we are subject to forces over which we have no control.
In September, 1989, Mrs. Rosetta Mayers, a Barbadian citizen, was 37 years old, a successful employee of the Royal Bank of Canada (“RBC”) in Barbados with a husband and 12 year old daughter. She faced a bright future in her career and prospects of a happy family life. She was on assignment in Antigua as part of her duties as systems coordinator upgrading the computer systems throughout the Caribbean region for RBC. She was a paying guest at the Royal Antiguan Hotel which was owned and managed by Deep Bay Development Limited (‘Deep Bay’).
On the morning of her departure, September, 23rd 1989 a freakish accident occurred in the shower with disastrous consequences for her. The cast iron shower head, together with part of the wall fell off and struck her in the region of the middle of her back fracturing a vertebra. Since that time Mrs. Mayers claims to be suffering from unrelenting pain so much so that eventually she was forced to give up work permanently in January, 1990. In 1992 she was diagnosed as having Reflex Sympathetic Dystrophy Syndrome (“RSD “).
Liability for the accident was not denied and a default judgment in her favour was entered on the 14th August, 1998 for damages to be assessed.
The assessment was conducted on the 30th June 2003 with admirable efficiency by both counsel and further written submissions were ordered. The final submissions were filed on the 15th September, 2003. The Court must commend counsel who endeavored to settle as many issues as possible, thus making the Court's task easier.
One of the major areas of dispute was causation as it related to 9th injuries which Mrs. Mayers allegedly suffered and the Court will address this first.
Mrs. Mayers alleges that the injury gave rise to RSD, RSD, according to Dr. Errol Bennett, one of Mrs. Mayer's physicians, is a multi-symptom syndrome. It is a disabling disease with simultaneous involvement of nerve, skin, muscle, blood vessels and bones. Like fibromyalgic syndrome, pain is an essential feature of RSD and is in fact the only common denominator in all RSD patients. He said that trauma; often minor, is the leading provocative cause. See Para. 4.3,1 and 4.3.2. of his affidavit filed 28th February, 2003.
Deep Bay contends that Mrs. Mayers is not suffering from RSD or alternatively, that if she does suffer from RSD or any chronic pain syndrome that such injuries are too remote i.e. that there is insufficient evidence to establish a chain of causation linking any negligence on Deep Bay's part with the illness suffered by her, Further, it is argued that two events occurred which amounted to intervening events and aggravated the illness and that Deep Bay would in any event be liable for pain and suffering only until September 1990, the date of the first intervening event.
I have reviewed the authorities submitted and in particular the House of Lords case of Page v. Smith [1995] 2 All E.R. 736.
This was a majority decision, 3-2. Lord Lloyd of Berwick gave the leading judgment. The Court held that in cases of nervous shock a distinction had to be made between what the Court classified as a primary victim and a secondary victim. A primary victim is someone who was directly involved in the accident and well within the range of foreseeable physical injury. To recover for nervous shock a primary participant need only show that it was reasonably foreseeable that he would suffer personal injuries from the accident, he did not even have to show that he suffered physical injuries and it was not necessary to show that the specific disease from which he actually suffered could have been reasonably foreseen.
I find that case very instructive and have no hesitation in following this line of thinking as it strikes the Court as logical, reasonable, just and in keeping with the authorities on the subject. As Lord Lloyd remarked at page 758f “as medical science advances, it is important that the law should not be seen to limp too far behind…. As long ago as 1901 the Courts were already beginning to become aware that there may be no hard and fast line between physical injury and psychiatric injury such as had hitherto been supposed.”
By analogy, Mrs. Mayers, like Mr. Page, was a primary participant except that unlike Mr. Page she actually suffered physical injury and allegedly some form of chronic pain syndrome - whatever its nature. Accordingly, I am of the view that it is not necessary for Mrs. Mayers to establish that RSD or any chronic pain syndrome could have been reasonably foreseen as a result of the accident. To recover for her injuries, she only has to establish that personal injuries could have been reasonably foreseen as a likely result of the accident in the shower. If she can establish this and likewise establish that she suffered from RSD or some other form of chronic pain syndrome then Deep Bay would be liable to compensate her for all her injuries. As Lord Lloyd said the defendant will have to take his victim as he finds him, egg-shell skull or egg- shell personality or in this case, egg-shell nerves.
Here it is not disputed that Mrs. Mayers suffered physical injury when she was struck on the back by the shower head and properly it has not been argued that personal injuries from such an accident could not have been reasonably foreseen. I therefore hold that Deep Bay will be liable for any disease she can establish that she suffered as a result of that accident.
The next issue to decide is whether or not Mrs. Mayers developed RSD or some other form of chronic pain syndrome as a result of the accident.
On this issue we heard from Mrs. Mayers herself, and the main doctors who treated her, namely, Dr. Winston Seale, an orthopaedic surgeon from Barbados who first saw Mrs. Mayers on the 29th September, 1989 in Barbados, Dr. Errol Bennett, another orthopaedic surgeon and Dr. Charles Argoff, a neurologist and pain management consultant both of the United States of America (‘the USA’). The main evidence in chief of these witnesses was contained in comprehensive affidavits on which they were extensively cross-examined. Deep Bay did not call any evidence.
If I understand Deep Bay's position it seems to be advocating that Mrs. Mayers did not have RSD but rather fibromyalgia. What is this significant difference between those two conditions? Essentially it is that RSD has no cure and is a disease which can progress to a stage where the patient is virtually incapable of doing anything for herself whereas fibromyalgia can sometimes resolve itself. The consequences for Deep Bay of finding one or the other are self evident.
Fibromyalgia or myofacial syndrome according to Dr. Bennett is a condition in which there is generalised pain and hypersensitivity essentially throughout the entire body and it is almost always associated with some type of traumatic event. According to. Dr. Seale, it is an inflammatory condition involving muscle and facia i.e. ligaments in the back. Any inflammation arising there may become chronic and may cause prolonged pain in muscles anywhere in the body. He said the significant features of fibromyalgia is pain which is disproportionate to the type of injury suffered and it could occur from relatively simple trauma, for example a simple blow to the back, The usual symptoms are easy fatigability, sleep disturbances, localised areas of pain or trigger spots in the muscles. The doctor also made it clear that that there is an overlap between RSD and fibromyalgia. He explained that the treatment for fibromyalgia and RSD are the same in the early stages. However, in RSD, sympathetic nerve blocks are used and in severe cases which he described as stage three cases, surgery to sever the nerve may be resorted to.
I accept the evidence of Mrs. Mayers which is supported by Dr. Seale that the immediate effect of the impact with the shower head was a fractured L2 vertebra. She was hospitalised in Antigua and later Barbados from September 29th until November 22nd 1989. She was confined to her bed for that period. She said it was absolute confinement as she was not allowed out of bed for any reason. Her treatment consisted of narcotics to control the pain and later physical therapy. She also saw the neuro- surgeon, Dr. Hadley Clarke. On her discharge she was still in severe pain and remained at home and was monitored by Dr. Seale and Dr, Clarke. Mrs. Mayers was re-hospitalised from March to April 1990 with complaints of pain in the...
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