Charles Brent Yates Plaintiff v Brenda Kathleen Chin (as Personal Representative of the Estate of Ysatis Nathine Chin, deceased) Defendant
| Jurisdiction | Cayman Islands |
| Judgment Date | 15 May 2014 |
| Date | 15 May 2014 |
| Docket Number | CAUSE No. G 180 OF 2010 |
| Court | Grand Court (Cayman Islands) |
A fracture of the medial malleolus of the left ankle;
Fractures of the next of the right talus and the next of second metatarsal on the right foot;
Multiple chest abrasions and contusions secondary to the Plaintiff's seat belts;
Post-traumatic osteoarthritis of the right tibial talar joint.
In his testimony before the court, the Plaintiff supplemented the foregoing and testified about his continuing pain and suffering.
The following evidence was not disputed.
Following the accident on May 4, 2007, the Plaintiff was taken to the hospital as an emergency case and underwent surgery resulting in the insertion of pins into both of his ankles. Initially he remained at hospitalfor fifteen days. For the next two months after his release from hospital the Plaintiff was incapacitated and bedridden. He was unable to place any weight on his ankles and his elderly parents cared for him. After two months his left ankle healed sufficiently to bear some weight but he remained unable to bear full weight on his right ankle. The Plaintiff still experiences pain whenever he is on his feet especially if he does not use a cane or his custom fitted brace.
Since his initial release from hospital the Plaintiff has received treatment in both the Cayman Islands and the United States of America. Future surgery is anticipated.
The Plaintiff also gave evidence about issues which he currently faces and their effect on his lifestyle, Some of this evidence was challenged.
In April 2009, the Plaintiff had a custom brace for his right foot fitted in Miami. According to the Plaintiff, this takes a lot of pressure off his ankle and transfers it to the knee. The benefits of the brace are that it has provided the Plaintiff with more mobility and freedom with less pain and he does not have to use a walking stick while wearing at and further; it allows him to move and walk more naturally,
The Plaintiff testified however that there are problems connected to the wearing of the brace. It is heavy and cumbersome and after a period of use it causes the Plaintiff pain and discomfort in his hip and lower back area. Prolonged use also causes bruising and abrasions. The brace restricts the full movement of the Plaintiff's right knee and makes bending his leg difficult. In order to accommodate the brace the Plaintiff has to wear a size 12 or 13 shoe on his right foot and this creates awkwardness in driving or in getting in and out of the back of small cars. However, without the brace, if the Plaintiff uses a walking stick for a prolonged period of time, he develops pain in his upper arm and shoulder.
The Plaintiff claimed that he can stand unassisted for short periods of time and take small steps which do not involve the rotation of his ankle. Standing for extended periods hurts his ankle and causes pain when walking. This pain sometimes persists into the night and the next day.
According to his testimony, currently, the Plaintiff suffers pain in his right ankle accompanied by chronic swelling and stiffness. This pain is minimized if he sits or is lying down. Walking on uneven ground or at an incline worsens the pain. He wears his ankle brace approximately five days per week at all times when outside of his house. He is conscious that the brace causes his calf muscle to diminish. He cannot drive his work vehicle while wearing the ankle brace. He also experiences occasional pain in his left ankle and forearms.
The Plaintiff is strongly contemplating surgery on his right ankle to fuse the joint. He describes this as a highly complex operation which could either be his last chance at improving his condition or could worsen his condition.
Having held various jobs after graduating from High School; in June 2004, the Plaintiff commenced employment for Cayman Turtle Farm (1983) Ltd as a part of the construction management team that built the Boatswain's Beach Adventure Park (the Turtle Farm). At the time of the accident, the Plaintiff had been employed as Manager of Buildings and Grounds at Boatswain's Beach. His salary was $7,500.00 per month. He also received a pension contribution of $450.00 per month, health insurance coverage, a company car and a company cellular telephone.
His injuries kept him out of work for approximately three months; during two of which he received sickness pay. When he returned to work in August 2007, he was on crutches and was assigned desk duties. This involved organizing some of the accounts from the construction of Boatswain's Beach and continuing to act as Buildings and Grounds Manager but only in an office role.
The foregoing evidence about the Plaintiff's employment history was accepted by the Court as being factual.
It was the Plaintiff's assertion that his injuries did not heal sufficiently to allow him to return to his pre-accident duties. He stated that on or about January 1, 2008 his employer gave him the option of accepting the position of Freedom of Information Manager at a reduced salary of $5,224.00 per month; being made redundant or being demoted to a lower position with a salary of less than $5,000.00 per month. According to the Plaintiff, since he had no idea if he would ever make a full recovery from his injuries he accepted the first option. He held the position of Freedom of Information Manager at a salary of $5,224.00 per month from January 1, 2008 until May 12, 2010 when the position was made redundant.
According to the Plaintiff, on June 26, 2010 he commenced temporary employment with Charterland Limited which involves performing appraisals of buildings. He did this on a commission only basis. The Plaintiff claimed that due to his injuries he was restricted to performing appraisals which did not involve heavy construction, walking on uneven ground, ladder climbing, scaffold climbing, walking on sloped roofs, going in and out of holes or heavy lifting. In July 2010 the same company offered him a salaried position doing the same work but subsequently determined that his injuries meant that he was unable to perform a sufficient number of appraisals each month to justify a salary. He continued to be paid on commission. According to the Plaintiff, he workedfor this company for slightly over a year completing his last inspection on July 11, 2011. During his period of employment he received a total salary of $5,736.67 in commissions.
The Plaintiff testified that he also tried to supplement his income by purchasing a business involving the sale of ice creams on April 1, 2010. This was prior to being made redundant and the shop was a retail unit at the Turtle Farm. He claimed that he was unable to turn it into a profitable enterprise and business closed on June 23, 2011. It was his estimate that he lost approximately $13,500.00 on that business.
The Plaintiff testified that he subsequently re-opened the ice cream store, employing two women who work approximately 40 hours a week. The Plaintiff works in the store for several hours per day, and this involves some physical labour such as lifting stock. He can drive to his suppliers but he has to walk around their shops in order to purchase items. He stated that he is unable to hold or carry heavy items for a long period of time.
The Plaintiff testified that in March 2013 he returned to Charterland Ltd. to sell properties at a new residential development called Satinwood Gate in George Town. He currently works as an on-site sales agent and is located at the show home. He provides a physical presence at the site and deals with any person who either drops in for a viewing or attends by previous arrangement. He works from 10:00 a.m. to 3:00 p.m. and these hours coordinate well with his hours at the ice cream shop. The job is sedentary in nature and he works on commission without any base salary. At the time of trial the Plaintiff reported having made two sales in August 2013 and September 2013, earning a commission of $8000,00 for which he had received one payment of $4000.00.
The Plaintiff stated that in mid-July 2011 he travelled to Peru, both to visit a friend and to seek employment there. He was unsuccessful in relation to the latter and returned to the Cayman Islands one month later.
It was the Plaintiff's further testimony that whilst attending school, he enjoyed an active life; playing football, tennis and badminton. He also took part in cycling, scuba diving and hiking and camping trips. When he completed his education he enjoyed many of the same activities as well as playing beach volleyball, mountain biking and boating. The Plaintiff claimed that he also socialized with friends, attended nightclubs and concerts and performed all his own housekeeping and home maintenance work. The Plaintiff claimed that he is no longer able to participate in such recreational activities. Further he avoids events which draw large crowds because due to his imperfect balance he is afraid of being pushed in a crowd and falling to the ground.
According to the Plaintiff, although he had always been overweight; the change in his lifestyle has brought about an increase in weight to about 330 pounds. The Plaintiff has been classified as being morbidly obese.
The Plaintiff gave evidence that after the accident he had to move into his parents' home because he relied on their assistance with household chores and any task which involved walking. He also hired someone to provide assistance with landscaping and general building maintenance at his parents' home.
Subsequently, in June 2013, the Plaintiff moved to a property adjacent to his parents' home but which is located on the same parcel of land. It is his evidence that...
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