Violine Joseph Claimant v Terese Morris Sonnel Samuel Defendants [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: MATHURIN, M,Cheryl Mathurin,Master
• Judgment Date: 22 June 2009
• Judgment citation (vLex): [2009] ECSC J0622-2
• Court: High Court (Antigua)
• Docket Number: CLAIM NO. ANUHCV2006/0133
• Date: 22 June 2009

[2009] ECSC J0622-2

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Before:

Master Cheryl Mathurin

CLAIM NO. ANUHCV2006/0133

Between:

Violine Joseph

Claimant

and

Terese Morris

Sonnel Samuel

Defendants

Appearances:

Mr. George Lake for the Claimant

Mr, Hollis Francis for the first named Defendant

Ms Samantha Marshall for the second named Defendant

ASSESSMENT OF DAMAGES

MATHURIN, M

1 On the 22^nd November 2003, the Claimant (Mrs. Joseph) was standing at the side of Bolans Main Road when she was struck down by a vehicle which was being driven by the first Defendant (Mr. Terese Morris) who was being taught to drive by his aunt, the second Defendant (Ms Sonnel Samuel). The accident caused serious injuries to Mrs. Joseph. Mr. Morris and Ms Samuel accepted liability for the accident and agreed special damages to be paid and this court is being asked to assess the general damages and costs that Mrs. Joseph is entitled to. At the time of the accident, Mrs. Joseph was 48 years old. She has three children the youngest of whom was at university in America. Her husband suffers from liver disease and is unable to work and as such she was the breadwinner of the family.

Medical reports and evidence

2 Mrs. Joseph was forty eight at the time of the accident. She was initially admitted on the 20^th November 2003 to the Holberton Hospital where she was treated for a crushing injury of her right leg by Dr Singh who did reconstructive surgery. Ms Joseph was subsequently treated in Florida at the Memorial Regional Hospital where her limb was amputated and she returned to Antigua where she was fitted with an artificial limb.

3 In March 2005, Dr Singh stated that her current prosthesis was worn out and that she would require a new one. He recommended her visiting a consultant in Puerto Rico to have one fitted at a cost of US $6,500.00.

Mrs. Joseph's evidence

4 In her witness statement of 15^th June 2007, Mrs. Joseph states that since the accident in November 2003 that her work life has been curtailed. She states that at the time of the accident she was self employed and had a business making masonry accessories which earned her $2,900.00 per month. She describes the work as strenuous and states that as a result her working life has been reduced. Mrs. Joseph does not however elaborate on the extent to which it has been curtailed.

5 The quality of Mrs, Joseph's personal life has also suffered as a result. She states that prior to her injuries she enjoyed physical exercises and recreational sports with her other villagers as well as gardening, shopping for clothes and food and dancing. She states that she is no longer able to do these things.

6 During the period of her recovery and rehabilitation, Mrs. Joseph states that she had to employ persons to assist her around the house and to care for her and her husband as she was incapacitated and unable to perform every day duties for herself including bathing, moving around the house or preparing meals. Mrs. Joseph also states that she is unable to stand for long periods and this has affected her ability to cook, wash clotties, mop or sweep. She says she can not lift heavy objects. She also states she is in constant pain and that the joy and satisfaction of caring for her husband and family have been diminished.

7 Mrs. Joseph states that she will require future assistance for her household chores and yard and gardening works. She states that she now spends $800.00 per month on domestic help and has had to purchase a vehicle which had to be specially adapted to her needs.

8 Counsel sought damages under several headings to which Counsel for the Defendants responded and I will consider them individually. 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

9 Further, applying the principles inHeeralall v Hack Bros. (1977) 15 WIR 117, the law expects an award of fair compensation, fair to Mrs. Joseph for what has happened to her through the negligence of Mr. Morris and Ms Samuel and fair for Mr. Morris and Ms Samuel 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. I must consider therefore, the nature and extent of the injuries that Mrs. Joseph sustained and the effect that this has had on her health. I must also consider her past pain and suffering, any future pain and suffering that she will experience and any curtailment in her living that the injury has produced.

Pain and suffering and loss of amenities

10 Counsel for the Claimant states that the Mrs, Joseph was forced to endure both physical and emotional pain as a result of the initial injuries and subsequent amputation. He submits that she had to endure months of painful rehabilitation in order to learn to function using an artificial limb. Counsel submits an award should be at the top of the range for amputated limbs as he states...