Hydes v Ebanks

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Rowe and Taylor, JJ.A.)
• Judgment Date: 12 April 2002
• Court: Court of Appeal (Cayman Islands)
• Date: 12 April 2002

Court of Appeal

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

HYDES

and

EBANKS

N.W. Hill, Q.C. and H.D. Murray for the appellant;

W.A. Sykes for the respondent.

Cases cited:

(1) Camus v. Williams, July 18th, 1996, Kemp & Kemp, Release 75, June 2000, para. E2–016, at 55068, unreported, considered.

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

(3) Moeliker v. A. Reyrolle & Co. Ltd., [1977] 1 W.L.R. 132; [1977] 1 All E.R. 9, dicta of Brown, L.J. applied.

(4) Page v. Enfield & Haringey Area Health Auth., English Court of Appeal, The Times, November 7th, 1986, unreported, dicta of Woolf, L.J. 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) Wells v. Wells, [1999] A.C. 345; [1998] 3 All E.R. 481, referred to.

(7) Wren v. North E. Elec. Bd., [1979] C.L.Y. 65, unreported, referred to.

Tort-personal injuries-damages-whiplash-injury aggravating pre-existing degenerative condition of cervical vertebrae-quantum

Tort-personal injuries-damages-future loss-award calculated assuming damages to be invested-to take into account nature of employment-provision for notional future wage increases unjustified if none received in past

Tort-personal injuries-damages-loss of earning capacity-award if, due to injuries, real or substantial risk that plaintiff will lose job in future and less likely to find comparable employment-value of weakened position in labour market to be assessed globally, not by multiplier and multiplicand, and confined to modest sum

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

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

The respondent, aged 55 at the time of the trial, sustained severe ‘whiplash’ injuries to her neck when her car was struck twice from behind by the appellant”s car whilst waiting at a road junction. She was not wearing her seat-belt at the time.

The strain on the respondent”s neck ligaments and joints from her injuries exacerbated a pre-existing degenerative condition of the cervical discs, commonly occurring in middle-age. As a result of the accident, the condition was more likely to become chronic and painful with a potential decrease in mobility, increased neck and shoulder pain and possible nerve damage. Had the accident not occurred, she would probably have remained asymptomatic.

Since the accident, the respondent had followed a rehabilitative regime, involving physiotherapy, medication, reduced working hours, maintain-ing a suitable ergonomic environment at work, and abstaining from

various leisure activities which she had previously enjoyed. She still 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 sleeping and her relationship with her partner had been affected.

The respondent was awarded, inter alia (a) CI$30,000 as general damages for pain, suffering and loss of amenity; (b) CI$203,401 for future loss of income, based on a 10 year multiplier for lost earnings due to her reduced working hours and 5 years for employer”s pension contributions (on the assumption that she would work until the age of 65 but that pension contributions would cease at age 60) and with provision for a notional 10% increase in wages during that time; (c) CI$11,500 for the future cost of household help; and (d) CI$15,000 for loss of earning capacity. The respondent was found to have been 10% contributorily negligent in failing to wear her seat-belt. The conventional reduction in damages was 15–25%, but since the force of the collision had severed the driver”s seat from the car chassis, the court found that the degree to which the wearing of the seat-belt would have lessened the respondent”s injuries was debatable. The proceedings in the Grand Court are reported at 2000 CILR 347.

The appellant appealed against the quantum of damages awarded. She submitted that (a) the general damages award was approximately 50% too high, since the respondent”s injuries could be classified as moderate rather than severe, and were comparable with those sustained in a previous English case; (b) in assessing future loss of income, the court should have applied multipliers of 5 for lost earnings and 3 for lost pension contributions, and there was no basis for the 10% wage increase that had been factored into the calculation of this head of damages; (c) the award of CI$11,500 for the future cost of household help was excessive; and (d) the further award of CI$15,000 under the ‘lost earning capacity’ head was inappropriate, since the respondent had been already been fully compensated for her potential loss of earnings resulting from the accident and was unlikely to lose her job.

The respondent cross-appealed. She submitted that (a) the court should have applied a multiplier of at least 17.55 to calculate her future loss of earnings from the age of 55, since actuarial tables showed that she had a life expectancy of 72½ years and in practice she would probably continue to work until the age of 75; and (b) since the force of the collision had been so great, the wearing of a seat-belt would not have lessened the extent of her injuries and the damages should not have been reduced for contributory negligence.

Held, allowing the appeal in part and dismissing the cross-appeal:

(1) The court was satisfied that the Grand Court”s assessment of the severity of the respondent”s injuries and their effect on her quality of life was accurate. She would suffer permanent pain and limitation of move-ment with the possibility of a sleep disorder and consequent depression.

She would have to forego activities which she had previously enjoyed that might aggravate her condition. Her injuries were at the severe end of the scale of whiplash injuries and the award of CI$30,000 was appropriate (paras. 9–12).

(2) There was no reason to vary the multipliers adopted by the trial court to calculate future loss of income. The award had been made on the assumption that the respondent would invest her damages and bearing in mind that she was employed in a business (tourism) which was subject to...