Eaton v Johnston

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Taylor and Forte, JJ.A.)
• Judgment Date: 25 November 2005
• Court: Court of Appeal (Cayman Islands)
• Date: 25 November 2005

Court of Appeal

(Zacca, P., Taylor and Forte, JJ.A.)

EATON

and

JOHNSTON

N.W. Hill, Q.C. for the appellant;

A. Walters for the respondent.

Cases cited:

(1) Clark v. Metropolitan Police Commr., January 10th, 1997, Kemp & Kemp, The Quantum of Damages, Release 89: December 2003, para. E2–009, at 55063, considered.

(2) Davies v. Powell Duffryn Assoc. Collieries Ltd., [1942] A.C. 601; [1942] 1 All E.R. 657; (1942), 167 L.T. 74; 58 T.L.R. 240, dicta of Lord Wright applied.

(3) Flint v. Lovell, [1935] 1 K.B. 354; [1934] All E.R. Rep 200, dicta of Greer, L.J. applied.

(4) George v. Pinnock, [1973] 1 W.L.R. 118; [1973] 1 All E.R. 926, dicta of Sachs, L.J. considered.

(5) Jefford v. Gee, [1970] 2 Q.B. 130; [1970] 1 All E.R. 1202; [1970] 1 Lloyd”s Rep. 107, dicta of Lord Denning, M.R. applied.

(6) Povey v. W.E. & E. Jackson, [1970] 1 W.L.R. 969; [1970] 2 All E.R. 495, dictum of Edmund Davies, L.J. applied.

(7) United Dairy Farmers Ltd.v. GouldbourneUNK(1984), 21 J.L.R. 10, dicta of Campbell J.A. applied.

(8) Yamoah v. Woolworth Plc, February 12th, 1996, Kemp & Kemp, The Quantum of Damages, Release 95: May 2005, para. G2–010, at G2011, considered.

Tort-damages-appeals-appellate court only to interfere with award of damages if trial judge misapplied legal principles and or misunderstood or misapplied evidence, resulting in extraordinarily high or low global award-individual component of award only to be impeached if global sum awarded ought not to stand

Tort-personal injuries-damages-loss of future earnings-allowance to be made for contingencies, e.g. possibility of early death, recovering full ability in spite of doctors” opinions, or changing occupation with improved earnings-allowance to be made for benefit of immediate payment

Tort-personal injuries-damages-multiple injuries-injuries to separate parts of body not per se heads of damages-combined effect to be compensated for by award of general damages for ‘pain and suffering and loss of amenities’

In an action in which liability was not disputed, the respondent applied to the Grand Court for an assessment of damages for injuries sustained in a motor vehicle collision caused by the respondent”s negligence.

The respondent sustained several injuries, including contusions to the right hand, undisplaced fractured nasal bone and sprain to the right shoulder. The Grand Court (Levers, J.) made separate awards for each of the respondent”s physical injuries, special damages, loss of earnings, general damages for pain and suffering, general damages for loss of amenities, loss of future earnings, and loss of amenities, plus interest.

On appeal, the appellant submitted that (a) the award of damages to the respondent was manifestly excessive and unreasonable and the result of the judge”s misdirecting herself on the evidence; (b) she had erred in law on (i) the effect of breaches of the Immigration Law on the respondent”s entitlement to rely on income earned in the calculation of his loss of earnings, (ii) the separate assessment of general damages for loss of amenities, (iii) the award of general damages for injuries caused by the accident, and (iv) the awards for loss of earnings and loss of future earnings; (c) the respondent had failed to mitigate his damages by failing to see an orthopædic surgeon specializing in hand/shoulder in spite of the

advice of one of the many doctors from whom he had sought treatment; (d) the judge should not have rejected the whole of the appellant”s expert witness”s evidence based on one part of it; (e) the fact that the respondent was able to do work at all contradicted his complaints of pain and suffering caused by his injuries; and (f) in relation to loss of future earnings, the only entitlement of the appellant should be damages to pay for an assistant, as he was otherwise capable of working.

Held, reducing the awards for general damages and loss of future earnings:

(1) The Court of Appeal would only interfere with an award of damages by a trial judge if he or she had misapplied principles of law and or misunderstood or misapplied the evidence, resulting in a global award which was extraordinarily high or low. An individual item was only to be impeached if the global sum awarded ought not to stand. The judge, being the arbiter of fact, was entitled, having seen the witnesses and examined all the doctors” reports and the circumstances under which they were given, to determine which of their opinions she accepted. She properly justified her preference for, and the respondent was entitled to accept, the recommendation of the many doctors who treated him with medication (conservatively), particularly given the uncertainty as to what advice the hand surgeon would have given in respect of surgery and the inconclusiveness of the opinion of the doctor in question, who did not categorically state that surgery would have resulted in alleviation of the pain caused by the injuries. The judge was also entitled to rely on the evidence of doctors who found the respondent suffered from depression, as the nature of depression was such that it could manifest itself at one time and not at another (para. 7; para. 11; paras. 16–19).

(2) Injuries to particular parts of the body were not per se heads of damage for which damages could be calculated, but were to be compensated for by an award of general damages for the pain and suffering caused by the combined injuries, together with loss of amenities, under the single head of damages for ‘pain and suffering and loss of amenities.’ Whilst the judge was correct to find that the respondent suffered serious pain in his back, shoulder, head and hand as a result of the injuries caused, which left him with a permanent partial disability of 15%, damages had been duplicated by treating ‘pain and suffering’ and ‘loss of amenities’ separately, resulting in an extraordinarily high award. The award of $91,000 as general damages should be reduced to $70,000 (paras. 8–10; paras. 30–35).

(3) The appeal relating to the award for loss of earnings was without merit. The respondent had produced satisfactory evidence of his past and present earnings, including evidence that the pain caused by his injuries meant that he had to employ someone to help him with heavy work, and worked against his doctors” advice only because of his poor economic circumstances. There was no reason to interfere with the judge”s finding

of fact, and actual earnings during that period had been deducted from the award under this head. As the figures in the judge”s final order for special damages, loss of earnings and interest were correct, there was no need to interfere with the award for loss of earnings (para. 21; para. 24).

(4) The method used by the judge to assess the respondent”s loss of future earnings was correct. It was calculated on the basis that the respondent would suffer the disability from his injuries for the rest of his working life; and a multiplier of 5.48 represented the number of years he would be able to work until his retirement at 65. The sum used by the judge as the multiplicand, a net loss of earnings of $62,172 per year, was acceptable, but allowance had to be made for contingencies, e.g. the possibilities of the respondent”s early death, or recovering his full abilities in spite of the doctors” opinions, or changing his occupation with improved earnings. Also taking into consideration the benefit of the immediacy of payment, the sum of $340,702.56 should be reduced by one-third, resulting in an award of $237,135.04. There was no concrete evidence that the respondent was, at the particular time, working in breach of the immigration laws, which would not in any case have prevented the court from taking into account evidence of his earnings (paras. 27–29).

1 FORTE, J.A., delivering the judgment of the court: On January 21st, 2005, the respondent sustained several injuries when the appellant

negligently drove his motor vehicle into the pathway of the respondent”s motor vehicle, along the West Bay Road. There was no dispute as to liability and the matter was heard as an assessment of damages. This is an appeal against the order made by Levers, J. on the assessment.

2 As recorded by the learned judge, the respondent suffered the following injuries: contusions to the right hand, undisplaced fractured nasal bone, sprain to the right shoulder. Having heard the evidence, the learned judge made the following awards:

Neck	$25,000.00
Shoulder	$10,000.00
Face/nose	$2,000.00
Hand	$4,000.00

3 Separate awards were made for loss of earnings...