Allen v Ebanks

• Jurisdiction: Cayman Islands
• Judge: (Harre, C.J.)
• Judgment Date: 01 January 1998
• Court: Grand Court (Cayman Islands)
• Date: 01 January 1998

Grand Court

(Harre, C.J.)

ALLEN

and

EBANKS

N.S. Garnham and J.R. McDonough for the plaintiff;

P. Lamontagne, Q.C. and W.L. DaCosta for the defendant.

Cases cited:

(1) -Coles, Re, Criminal Injuries Compensation Bd., December 7th, 1995, Kemp & Kemp, Release 62, March 1997, para. C2–003/4, at 53064, unreported.

(2) -Finch v. Hewitt, January 23rd, 1985, Kemp & Kemp, Release 56, August 1995, para. I2–102, at 59102, unreported.

(3) -Hodgson v. Trapp, [1988] 3 All E.R. 870; (1987), 132 Sol. Jo. 1672, dicta of Lord Oliver of Aylmerton applied.

(4) -Hunt v. Severs, [1994] 2 A.C. 350; [1994] 2 All E.R. 385, applied.

(5) -Jenkinson v. Lumbis, June 8th, 1986, Kemp & Kemp, Release 62, March 1997, para. A4–016, at 51544, unreported.

(6) -Mallett v. McMonagle, [1970] A.C. 166; [1969] 2 All E.R. 178, not followed.

(7) -Mills v. British Rail Engr. Ltd., [1992] P.I.Q.R. Q130, dicta of Dillon, L.J. applied.

(8) -O”Keefe v. Webb, English High Ct., March 14th, 1995, Kemp & Kemp, Release 62, March 1997, para. A4–017/2, at 51551, unreported.

(9) -Page v. Sheerness Steel Co. PLCUNK, [1996] P.I.Q.R. Q26; on appeal, sub nom. Wells v. Wells, [1997] 1 W.L.R. 652; [1997] 1 All E.R. 673; [1997] P.I.Q.R. Q1; on further appeal, [1998] 3 W.L.R. 329; [1998] 3 All E.R. 481.

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

(11) -Thomas v. Warburtons Ltd., English Court of Appeal, March 26th, 1985, Kemp & Kemp, Release 56, August 1995, para. I2–101, at 59101, unreported.

(12) -Williams, Re, Criminal Injuries Compensation Bd., August 15th, 1996, Kemp & Kemp, Release 62, March 1997, para. B2–003/2, at 52055, unreported.

(13) -Woods v. Francis, 1986–87 CILR 207, considered.

Tort-personal injuries-damages-leg-amputation and extensive lower-body scarring-quantum

Tort-personal injuries-damages-medical expenses-may recover cost of medical advice and treatment from different sources-even if second opinion subsequently preferred, chain of causation unbroken by inappropriate initial advice given by reputable practitioner

Tort-personal injuries-damages-future loss-multiplier may be calcu-lated according to actuarial tables, e.g. Ogden Tables, but taking into account effect of plaintiff”s circumstances and applying discount for life”s contingencies

Tort-personal injuries-damages-medical expenses-award for replacement equipment may include reasonable cost of future price increases due to foreseeable technological development

Tort-personal injuries-damages-financial advice-may recover cost of engaging financial adviser and manager for damages fund-desirable if plaintiff young and financially inexperienced

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

The plaintiff, an American citizen aged 19 at the time of his accident, suffered extensive fractures of his left leg, necessitating an amputation above the knee. He also sustained severe scarring to his lower body, resulting in continuing physical discomfort and psychological distress. He underwent skin-grafting to repair tissue damage around his stump and was likely to require future surgery to treat or prevent further damage to it.

The plaintiff had previously held two jobs, working long hours, and had also attended a vocational training course. Now reliant on an artificial limb for mobility, he had been forced to cut his working hours by 40%, and was unable to participate in the many sports in which he had previously indulged. He had already replaced the prosthesis with which he had first been provided on the advice of a physical therapist, preferring the advice of a consultant at a specialist clinic. He was likely, due to the wear and tear on this device from his still active lifestyle and in order to

take advantage of future developments in technology, to need a number of replacement prostheses in his lifetime.

He claimed general damages for pain, suffering and loss of amenity, special damages for lost earnings and expenses incurred to date, and damages for future loss of earnings, medical expenses and the cost of employing a financial adviser to manage the fund of damages awarded.

Held, awarding damages on the following bases:

(1) The plaintiff would be awarded US$110,000 general damages for pain, suffering and loss of amenity. This was based on an estimate of the award which an English court would probably have made in these circumstances, but taking into account the additional effect on the plaintiff of being injured abroad and having to travel by air back to the United States for further treatment and recuperation following treatment in the Cayman Islands. The court would take no account of the purchasing power of Cayman currency in relation to sterling, since the plaintiff would benefit from any award in his native country (page 193, line 41 – page 194, line 14).

(2) The plaintiff was entitled to both the costs of obtaining his first prosthesis and its replacement, since there was no intervening act to break the chain of causation between the defendant”s negligence and the expenses incurred. The decision to obtain a second opinion and prefer a different device to that first recommended was justified in this case, and there was no reason to penalize the plaintiff merely because the initial advice of a reputable physical therapist had proved inappropriate for him (page 194, lines 20–41).

(3) The court would follow the English practice in assessing the annual sum required from the purchase of an annuity to compensate the plaintiff for future financial loss, by assuming a constant value of currency and an interest rate of 4.5%. The multiplier to be applied to this sum was calculated by reference to the average life expectancy of a man of the plaintiff”s age as taken from the Ogden Tables, but taking into account the effect, if any, of the plaintiff”s particular medical condition and making a discount for the manifold contingencies of his life. Assuming that he would live to the age of 75 and work until 65 and that his life expectancy would be unaffected by his injuries, multipliers of 19 (lifetime) and 18 (working years) would be applied to provide for future lost earnings and expenses (page 194, line 44 – page 195, line 20; page 197, lines 1–7; lines 27–41).

(4) The court”s award in respect of replacement prostheses would take into account the potential increase in cost of such devices resulting from future developments in technology. However, since market forces were likely to restrict the availability of advanced equipment to what was affordable by consumers, the court”s allowance for price increments

would extend only to the first three replacements, which would take place within an era of recognizable development (page 201, line 33 – page 202, line 14).

(5) The plaintiff would also be awarded the cost (calculated at 1% of the total award, multiplied by the lifetime multiplier of 19) of engaging a financial adviser and fund manager. The plaintiff”s youth and inexperience in handling large sums of money warranted this step in the interests of ensuring his future financial security (page 202, lines 29–37).

HARRE, C.J.: On April 13th, 1995 the plaintiff, who was 19 years old
at the time, was seriously injured in a road accident caused by the
45	admitted negligence of the defendant. Judgment was entered against the

defendant on October 28th, 1996 and I am concerned now with the
assessment of damages. The figures which relate to the various
conclusions at which I have arrived are shown as a table at the end of this
judgment.
5	The plaintiff now claims:
(1) General damages for pain, suffering and loss of amenity, together
with interest.
(2) Special damages for losses to the date of trial, including medical
expenses and loss of earnings, together with interest.
10	(3) Damages for future loss including-
(a) loss of future earnings;
(b) future costs of medical treatment and evaluation;
(c) future costs of therapy;
(d) future costs of equipment including prostheses; and
15	(e) costs of employing fund managers.
By the end of a trial of several days there was much common ground
between the parties. The matters which remained in dispute were general
damages and interest, one item of expense already incurred, various
issues of future loss and the cost of the provision of a fund manager.
20
General damages
As a result of the accident the plaintiff suffered left femur and
acetabular fractures and his left leg was so severely crushed that it had to
be amputated above the knee. He still has severe scarring to his groin
25	area, hip, buttocks and thigh. He gave his evidence in an outwardly
matter-of-fact way but the evidence of Dr. Wilhelm, an impressively
qualified specialist in the rehabilitation of victims of this kind of
traumatic injury, under whose direct care the plaintiff has been, was that
he needed support in dealing with the psychological effects of his injury.
30	She testified as to the anxiety, social discomfort and loss of self-esteem
which he, as a young man in early adulthood, was undergoing as a result
of the amputation and extensive scarring on the lower part of his body. I
refer to her evidence now in relation to general damages only, though I
shall need to do so again when assessing the various technical and other
35	long-term aids about which there was a deep conflict of expert evidence.
The plaintiff was in the Cayman Islands for a diving holiday and he
described his other tastes in sport as including cycling, fishing, friendly
football, climbing, baseball, bowling and water-skiing. These pastimes
typical of a healthy young adult will no longer be

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