Charles Brent Yates v Brenda Kathleen Chin

• Jurisdiction: Cayman Islands
• Judgment Date: 15 May 2014
• Court: Grand Court (Cayman Islands)
• Docket Number: CAUSE No. G 180 OF 2010

Between

Charles Brent Yates

Plaintiff

and

Brenda Kathleen Chin

(as Personal Representative of the Estate Of Ysatis Nathine Chin, deceased)

Defendant

CAUSE No. G 180 OF 2010

IN THE GRAND COURT OF THE CAYMAN ISLANDS

CIVIL DIVISION

Appearances:

James Kennedy instructed by Samson & McGrath for the Plaintiff

Paul Murphy instructed by Stuarts, Walker, Hersant for the Defendant

1 On or about 4 May 2007, a motor-vehicle accident took place on North West Point Road. The Defendant was sued as the personal representative of the estate of the late Ysatis Nathine Chin, deceased; whose death was occasioned by the said accident. The Plaintiff alleged that the accident was caused by the negligence of the deceased and liability for the accident was not denied. The trial involved the assessment of damages suffered by the Plaintiff.

2 As a result of the accident the Plaintiff suffered fractures to both ankles and soft tissue injuries. In his claim, the Plaintiff sought special and general damages for loss of amenities and other adverse effects.

3 The burden lay with the Plaintiff to prove his case on a balance of probabilities. The Defence put the Plaintiff to strict proof with respect to the physical effects of the accident which the Plaintiff claimed to have suffered as well as his claim for loss and damage.

4 The following is a Summary of the Plaintiff's Schedule of Loss as amended during trial.

HEAD OF LOSS	AMOUNT CLAIMED
1. Past loss of earnings	$353,204.53
2. Loss of Pension	$ 24,663.96
3. Medical Expenses & Other Expenses	$ 14, 354.85
4. Gratuitous Care	$ 3,360.00
5. Interest on Past Loss	$ 30,862.26
6. General Damages for PSLA	$ 90,000.00
7. Interest on General Damages	$ 6,445.47
TOTAL PAST-LOSS	$522,891.07
FUTURE LOSS
8. Loss of earnings	$1,050,700.00
9. Loss of Pension	$ 65,954.34
10. Future Surgery	$ 35,382.16
11. Future one off loss of earnings for surgery	$ 8,749.98
12. Future Household and Gardening Assistance	$ 224,1165,76
TOTAL FUTURE LOSS	$1,405,056.24
TOTAL CLAIM	$1,907,947.31

5 As stated by both Counsel some of the heads of loss had been agreed. These were:

1. Past medical and other expenses	$14,354,85;
2. Past gratuitous care	$3,360,00;
3. Future surgery	$35,382.16.

The Plaintiff's Evidence

Injuries

6 The Plaintiff's injuries as outlined in his Statement of Claim included the following:

• 1. A fracture of the medial malleolus of the left ankle;

• 2. Fractures of the next of the right talus and the next of second metatarsal on the right foot;

• 3. Multiple chest abrasions and contusions secondary to the Plaintiff's seat belts;

• 4. Post-traumatic osteoarthritis of the right tibial talar joint.

7 In his testimony before the court, the Plaintiff supplemented the foregoing and testified about his continuing pain and suffering.

8 The following evidence was not disputed.

9 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 hospital for 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.

10 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.

11 The Plaintiff also gave evidence about issues which he currently faces and their effect on his lifestyle, Some of this evidence was challenged.

12 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.

13 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 Plaintiffs 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.

14 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.

15 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.

16 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.

The Plaintiff's Employment History

17 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.

18 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.

19 The foregoing evidence about the Plaintiff's employment history accepted by the Court as being factual.

20 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.

21 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 worked for 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.

22 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.

23 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.

24 The Plaintiff testified that in March 2013 he returned to Charterland Ltd. to sell properties at a new residential development called...