John McDow v Dolphin Discovery (Cayman) Ltd
| Jurisdiction | Cayman Islands |
| Judge | Mr Justice Alistair Walters |
| Judgment Date | 07 July 2022 |
| Year | 2022 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO: 231 OF 2018 |
Hon Mr Justice Alistair Walters, Actg.
CAUSE NO: 231 OF 2018
IN THE GRAND COURT OF THE CAYMAN ISLANDS
Claim for damages for personal injury, application for interim payment pursuant to GCR O. 29, r.9, principles to apply to consideration of interim payment.
Mr Nicholas Dixey of Nelsons for the Plaintiff
Mr Michael Wingrave of Dentons for the Defendant
These proceedings relate to a claim brought by the Plaintiff for damages resulting from personal injuries suffered on the Defendant's premises. The writ was issued on 28 November 2018 and alleges that on 25 March 2017 the Plaintiff, who was born on 28 February 1983, was walking along an external walkway besides the exterior wall of the premises adjoining the sea shore when he stopped and bent down to observe fish in rock pools. As he stood up, he leaned towards the wall to get his balance but before his hand could make contact with the wall an uncut piece of rusty reinforcing bar or rebar jutting out of the wall broke through the right lens of his sunglasses and deeply penetrated into the area of his right eye.
The accident caused the Plaintiff to fall to the ground which caused further injuries to his face and bleeding to his nose and right ear.
The Plaintiff alleges that he suffered the following injuries:
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3.1 immediate excruciating pain;
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3.2 fracture of the orbital floor to the right eye (blow out);
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3.3 contusion of the right eyelid and periocular area;
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3.4 laceration of the skin of the eyelid and periocular area;
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3.5 diminished sensation to the right lower eyelid;
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3.6 double vision (diplopia) when looking up or down or to the sides;
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3.7 soft tissue injuries to the nose and right ear;
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3.8 numbness to the face;
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3.9 nerve damage to the face; and
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3.10 visible scarring.
The Plaintiff was treated at hospital immediately. The treatment included a complex repair of his eyelid sutured in layers and reconstruction of the infra orbital plate.
As a result of the accident, the Plaintiff claims to continue to suffer a defect to the medial aspect of the orbital wall of his right eye. He also suffers from diplopia on a lateral gaze and looking upwards and downwards. The Plaintiff has further suffered from severe occipital headaches and cerebrospinal fluid leakage (“CSF leak”) from the right eye, in respect of which he has been in the care of a neurosurgeon.
The Plaintiff claims that the injuries suffered were caused by the negligence of the Defendant and that he is entitled to general and special damages.
In its defence dated 20 December 2018, the Defendant denied liability and alleged contributory negligence.
By way of a consent order dated 14 April 2020 the parties agreed negligence as to the Plaintiff at 50% and as to the Defendant at 50% leaving damages to be assessed.
By way of a consent order dated 16 of June 2020 various directions were agreed including the reliance on evidence of the jointly instructed expert, Dr Eugene Foley an expert in the field of ophthalmology.
On 13 April 2021 the Defendant made a voluntary interim payment to the Plaintiff of USD350,000.
By way of summons dated 13 May 2022 the Plaintiff now seeks an order for a further interim payment pursuant to GCR O.29 in the sum of USD480,000 (or such other lesser sum as the court considers just).
GCR O.29, r.10 and 11 provides as follows:
“Application for interim payment (O.29, r.10)
10. (1) The plaintiff may, at any time after the writ has been served on a defendant and the time limited for him to acknowledge service has expired, apply to the Court for an order requiring that defendant to make an interim payment.
(2) An application under this rule shall be made by summons but may be included in a summons for summary judgment under Order 14 or Order 86.
(3) An application under this rule shall be supported by an affidavit which shall—
(a) verify the amount of the damages, debt or other sum the application relates to and the grounds of the application; and
(b) exhibit any documentary evidence relied on by the plaintiff in support of the application.
(4) The summons and a copy of the affidavit in support and any documents exhibited thereto shall be served on the defendant against whom the order is sought not less than 10 clear days before the return day.
(5) Notwithstanding the making or refusal of an order for an interim payment, a second or subsequent application may be made upon cause shown.
Order for interim payment in respect of damages (O.29, r.11)
11. (1) If on the hearing of an application under rule 10 in an action for damages, the Court is satisfied
(a) that the defendant against whom the order is sought (in this paragraph referred to as “the respondent”) has admitted liability for the plaintiffs damages; or
(b) that the plaintiff has obtained judgment against the respondent for damages to be assessed; or
(c) that if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the respondent or, where there are two or more defendants, against any of them, the Court may, if it thinks fit and subject to paragraph (2), order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set-off, cross-claim or counterclaim on which the respondent may be entitled to rely.” 1
On behalf of the Defendant, Mr Wingrave referred to the English Court of Appeal case of Eeles v Cobham Hire Sendees Ltd) 2. Eeles sets out useful guidance to judges when examining applications for interim payments:
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13.1 the discretionary power to make interim payment orders is not unfettered;
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13.2 there must be an attempt by the judge deciding an application for interim payments to estimate the likely capital value of the claim;
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13.3 the assessment should be limited to special damages to date, the general damages for pain, suffering and loss of amenity in addition to any capitalized accommodation claim;
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13.4 valuation of the claim should be earned out on a conservative basis and the interim payment will be a reasonable proportion of that assessment. However, a conservative proportion could still be a high proportion if the assessment is a conservative one;
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13.5 occasionally a judge will be entitled to include in the assessment of the likely final award additional elements of future loss, but that is only when, first there is evidence of real need and, second, that it can confidently be predicted that a trial judge will make a larger capital award that one which covers only the heads set out above ( Brathwaite v Homerton University Hospitals NHS Foundation Trust 3;
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13.6 while the court should not always necessarily work on the basis of the defendant's figures concerning assessment of the value of the claim, where there is a wide margin between the parties and the plaintiffs figures are not supported by evidence, the court should base its valuation of the claim, in general terms, upon the defendant's figures; and,
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13.7 there is no requirement to consider the use to which the payment sought would be put unless there is a lack of capacity 4 but the court will need to be satisfied that the proposed expenditure is reasonably necessary now as opposed to after trial.
As outlined by Mr Dixey on behalf of the Plaintiff, both general and special damages for personal injury may be considered in deciding what is a reasonable proportion of the damages, which, in the opinion of the court, is likely to be recovered by the Plaintiff 5.
He reiterated the point that the court is not concerned with the use to which the interim payment will be put. In Stringman v McArdle 6 the plaintiff, who was disabled as a result of an accident, applied for an interim payment to finance building work to her home. The lower court refused payment on the grounds that the house conversion was too expensive and this would amount to an excessive proportion of the total awarded for the plaintiffs care. The plaintiff appealed and the appeal was allowed. The court of appeal held an application under GCR O. 29, r. 11 should be granted if the court thinks the amount is just and does not exceed a reasonable proportion of the total likely damages. The court of appeal went on to say that this provision does not imply that applications should be refused on the grounds that the purpose for which the payment sought it extravagant or not in the plaintiffs best interests. Similarly in Smith v Glennon 7 the court of appeal held that the plaintiffs use of the money in that case was of no concern to the court.
Mr Dixey contends that the important principle is that the payment should not exceed a reasonable proportion of the claim. He says that this principle should not be misinterpreted so as to mean that the interim payment may not be significant or high, rather it is that the court will be mindful of the risk of an interim payment amounting to an overpayment of what is ultimately awarded at a full
There is no real disagreement between counsel as to these principles. Mr Wingrave reminded me that the court should be alive to the risk of overpayment and that the court must adopt a cautious and conservative approach to the valuation of the claim.
The Plaintiff swore an affidavit dated 19 May 2022. He also gave evidence briefly during the course of the hearing in...
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