E v H

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 05 September 2000
• Date: 05 September 2000
• Court: Grand Court (Cayman Islands)

Grand Court

(Smellie, C.J.)

E

and

H

W.A. Sykes for the plaintiff;

H.D. Murray for the defendant.

Cases cited:

(1) Allen v. Ebanks, 1998 CILR 190, applied.

(2) Camus v. Williams, July 18th, 1997, Kemp & Kemp, Release 75, June 2000, para. E2–016, at 55068, unreported, considered.

(3) Froom v. Butcher, [1976] Q.B. 286; [1975] 3 All E.R. 520, applied.

(4) Smith v. Leech Brain & Co. Ltd., [1962] 2 Q.B. 405; [1961] 3 All E.R. 1159, applied.

(5) Smith v. Manchester Corp.UNK (1974), 17 K.I.R. 1; sub nom. Smith v. Manchester City Council, 118 Sol. Jo. 597, applied.

(6) Wright v. British Rys. Bd., [1983] 2 A.C. 773; [1983] 2 All E.R. 698, applied.

(7) Yates v. Radtke, 1997 CILR 448, applied.

Tort-personal injuries-damages-medical expenses-costs of diagnostic procedures recoverable if undertaken on advice of reputable practitioner, even if no diagnosis reached and with hindsight considered unnecessary

Tort-personal injuries-damages-hospital visiting expenses-costs of partner accompanying patient to hospital overseas recoverable if patient unfit to travel alone-reasonably necessary to promote rehabilitation

Tort-personal injuries-damages-future loss-may provide for future wage increases even if none received in past-award to take into account employer”s statutory pension contributions to age 60

Tort-negligence-contributory negligence-conventional reduction for plaintiff”s failure to wear seat-belt 15–25%-lesser reduction if preventative effect debatable because of severity of accident

The plaintiff brought an action to recover damages for personal injury sustained in a road accident caused by the defendant”s negligence.

The plaintiff”s car was twice struck from behind by the defendant”s car whilst waiting to turn right. The force of the collision was sufficient to sever the bolts securing the driver”s seat to the chassis of the car. The plaintiff sustained severe ‘whiplash’ injuries to her neck. She was not wearing her seat-belt at the time.

The plaintiff suffered immediate pain in the muscles of her left shoulder and upper arm and parathesias in her left hand. Hospital examinations revealed that the spaces between the cervical vertebrae had narrowed due to the strain placed on the neck ligaments and joints by the injuries and the effect of that strain on a pre-existing degenerative condition of the cervical discs, commonly occurring in middle-age. As a result, the nerve roots in her neck were under pressure. The condition was more likely to become chronic and painful because of the accident. The mid-cervical spine was likely to become fused in time, either naturally or through necessary surgical intervention, with a resulting decrease in mobility and increased pressure on the vertebrae above and below. Further degenerative changes could lead to increased pain in the neck and shoulder and possible nerve damage. Had the accident not occurred, the plaintiff would probably have remained asymptomatic.

Immediately after the accident and for some months, the plaintiff also suffered uncontrollable physiological tremors, which were exacerbated by anxiety. Neurologists and other experts could find no cause for them, despite extensive examinations ‘to rule out sinister pathology’ (including an examination of the plaintiff”s brain by an M.R.I. scan). The plaintiff”s expert attributed them to the stress of the accident. The condition responded to medication and was under control at the time of hearing. It did not affect the plaintiff”s functional capacity.

The plaintiff had complied strictly with the rehabilitative regime prescribed by her doctors in the two years since the accident, involving physiotherapy, medication, reduced working hours, maintaining a suitable ergonomic environment at work, and abstaining from various activities which she had previously enjoyed, such as fishing, snorkelling and dancing. At the time of the hearing she experienced constant dull pain in the affected area, and risked a recurrence of chronic referred pain if she departed from the regime. She had difficulty in sleeping and her sexual relationship with her partner had been affected.

The plaintiff claimed general damages for pain, suffering and loss of amenity, special damages including, inter alia, medical expenses and loss of earnings, damages for future loss of income and loss of prospects in employment.

The defendant alleged that the plaintiff had been contributorily negligent in failing to wear her seat-belt and denied liability for the tremors experienced by her in the aftermath of the accident and for the costs, inter alia, of the medical investigations of them.

Held, awarding damages as follows:

(1) The appropriate award for pain, suffering and loss of amenity was CI$30,000 in this case. The plaintiff”s injuries were amongst the most severe of their nature. Liability was admitted on the basis that an injury of that type was a reasonably foreseeable consequence of the accident, and it was unnecessary that the defendant should have anticipated the extent of the injury or its attendant complications. Although the plaintiff”s existing

degenerative condition had not resulted from the collision, the accident had predisposed her to a pattern of chronic non-restorative pain for which the defendant was liable. The plaintiff had previously been active socially and pursued a number of active hobbies from which her condition now excluded her. The substantial award of general damages recognized the discomfort which she experienced daily and the life-long restrictions imposed by the rehabilitative regime which was essential to prevent further deterioration in her health (page 353, line 1 – page 354, line 20).

(2) The plaintiff would be awarded her medical expenses to the date of trial, including the costs of investigating the cause of the tremors immediately following the accident. The tremors had never occurred before the accident and it was reasonable to take steps to rule out neurological or metabolic causes. In particular, the cost of the M.R.I. scan by which the plaintiff”s brain was examined was recoverable even though the plaintiff”s own medical expert stated that this procedure had been unnecessary, since she had acted on the advice of reputable practitioners who had decided to order the scan and what use to make of it. These damages also included the cost of the plaintiff”s partner accompanying her to the United States for her first M.R.I. scan shortly after the accident (when she had been unfit to travel alone) but not for a subsequent visit when she was able to travel independently but was accompanied because she felt unsafe. Such expenses were recoverable only if reasonably necessary to promote recovery (page 354, line 24–page 355, line 20).

(3) It was accepted that the plaintiff had had to reduce her working hours significantly and alter the basis of her remuneration from a partly commission-based arrangement to one based on salary alone at an increased hourly rate, in order to maintain even half her pre-accident salary. An award in respect of basic lost earnings ($82,000) would be made, plus 5% for her employer”s pension contributions payable since the National Pensions Law had come into effect (a total of $83,350 under this head) (page 355, line 38 – page 356, line 30).

(4) The plaintiff”s future loss of earnings would be calculated by deducting her earnings in the year before trial from her average annual earnings before the accident (when she worked 57 hours per week), but on the basis that she would have continued to work those hours only until the age of 65. This was reasonable, since the English Ogden Tables projected that the plaintiff”s life expectancy was 17½ years, i.e. to the age of 72½. A net increase of 10% over the next 10 years would be factored into the lost earnings calculation in anticipation of future wage increases even though the plaintiff had received no such increments in the past. Since the plaintiff was now aged 55 and her employer”s pension contributions would cease at the ‘normal retirement age’ of 60, a multiplier of 10 would be applied to the basic loss of earnings and 5 to the pension contributions. The total award for future loss of earnings would be

$203,401 (page 356, line 42 – page 357, line 45).

(5) A further award of $15,000 would be made in respect of disadvantage to the plaintiff on the job market. Although the risk that the plaintiff would lose her job was low at present, her deteriorating condition could in future render her unable to continue in her current employment, resulting in substantial loss (page 358, lines 31–45).

(6) The conventional reduction in damages for contributory negligence by a plaintiff failing to wear a seat-belt was 15–25%. However, since in this case the force of the collision had severed the driver”s seat from the car chassis, the degree to which the wearing of the seat-belt would have lessened the plaintiff”s injuries was debatable. In the circumstances, it was just and equitable to reduce the overall award of damages by 10% (page 359, lines 2–27).

SMELLIE, C.J.: The action arises out of a motor vehicle collision in
which a car driven by the defendant was struck from behind by a
Daihatsu ‘jeep’ driven by the plaintiff.
35	The plaintiff”s vehicle was struck while stationary and awaiting a break
in oncoming traffic to make a right-hand turn. The plaintiff testified to
having been struck very forcefully from behind twice by the defendant”s
car, which suggests that the defendant was travelling at some speed. The
first strike was forceful enough to sever the bolts of the driver”s seat from
40	the chassis, pushing the plaintiff with the seat with great force to the left
and forward. She said the second strike was also forceful enough to push
her sideways and forward again. She was not wearing the seat-belt with
which her vehicle was equipped.

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