Thompson v Coe et Al

JurisdictionCayman Islands
JudgeSummerfield, J.
Judgment Date06 February 1979
CourtGrand Court (Cayman Islands)
Docket NumberCause No. 395 of 1977
Date06 February 1979
Thompson
and
Coe et al

Sir John Summerfield, C.J.

Cause No. 395 of 1977

Grand Court

Tort - Damages — Personal injury

Held: Judgment for plaintiff in sum of $17,765.50 including $4,245.50 special damages.

Facts: Accident involving the plaintiff, a pedestrian, and a motor vehicle driven by E.E., since deceased — First defendant was the representative of E.E.'s estate — Estate named as second defendant — Liability not in issue — Plaintiff twenty—three years old at time of accident — Plaintiff claimed to have suffered brain damage and mental impairment as a result of the accident — Two psychiatrists called by the parties, one by each side — Both doctors eminent in their field, different conclusions reached — Plaintiff's social and sporting life slightly impaired because of permanent disability suffered in his right leg — 15% loss of function of right lower limb — Limb one—quarter inch shorter than the left —

Appearances:

Mr. John Harding for the plaintiff

Mr. Lennox Sanguinett for the defendant.

Summerfield, J.
1

This action arises out of an accident on the West Bay Road on the 11 th August 1974 when the plaintiff, a pedestrian, was injured by a motor vehicle driven by one Eddington Ebanks, since deceased. The action is brought against the representative of Eddington Ebanks' estate (named as second defendant) who was also the owner of the vehicle involved in the accident and, as such, is named as the first defendant.

2

Liability is not in issue. The only issue is the quantum of damages.

3

As to special damages in the statement of claim are not in issue. These amount to $4,245.50. the remaining item in dispute relates to the claim for loss of earnings.

Loss of Earnings
4

The plaintiff, who at the time of the accident was 23 years of age, was trained in Jamaica for the hotel catering industry. He is Jamaican and gained his initial experience in the hotel catering industry in Jamaica. In August 1971 he came to these Islands and became an assistant maitre d'hôte at the Holiday Inn. He claims to have been promoted to the rank of maitre d'hôte shortly after joining Holiday Inn but there is some confusion about this. In cross-examination he said he reached the rank of captain. At all events he said that he was earning about $600 a month plus about $150 – 200 a month in gratuities in his senior rank. This would appear to be somewhat inflated when compared with earnings of the witness Peter Harriman in the more senior position of acting maitre d'hôte at a much later date when inevitably inflation would have raised the level of wages.

5

The plaintiff was working under a work permit as he did not have, and still does not have, Cayman statue. He was apparently a very industrious, efficient and cheerful worker.

6

He voluntarily relinquished his post at the Holiday Inn in December 1973 and turned in his work permit. He then went to Costa Rica where he began studying Spanish in night classes to improve his standing in the local hotel industry. He was there living with his “adopted” uncle, the witness John McGregor. During the day he earned about 200 colones a day hauling coffee to a mill with a truck he had acquired. That would amount to about U.S. $23.60 or about C.I. $20 a day – in a six day working week $120.

7

During that time he also did a great deal of travelling and it is not apparent from the record how much that travelling would have reduced his earnings while he was away.

8

It was in the course of his travels, while visiting these Islands that the accident occurred which incapacitated him. At that time his earnings, on his own admissions were no more than 200 colones a day or $120 a week, at the highest, when not travelling.

9

That was his chosen occupation at the time and, under the heading of special damages, only the earnings in that capacity can be taken into account and only for the period of his actual incapacity from carrying on that occupation. One cannot conjecture about his possible earnings in another capacity in another country or take account of any possible changes of mind as to how or where he may have chosen to earn his living. Any diminution in earning capacity can, of course, find a proper place in the assessment of general damages.

10

It is important to make this point because evidence was led to the plaintiff's unsuccessful attempt to obtain employment in hotels in those Islands. The period over which he thus sought work is not very clear. What is plain, however, is that this was long after the accident and after he had recovered sufficiently to seek work. It was not established in evidence why he was able to find work in hotels in these Islands — whether it was because he had no work permit or because no vacancy existed when he applied or otherwise. In either of those specified events the defendant cannot be held responsible for this failure to obtain work. The plaintiff had not lost any job here because of the accident. He had no vested right to work here – a work permit was a pre-requisite. It follows that loss of earnings during the period of incapacity should not be gauged by reference to the level of wages in these Islands in any event. His earning capacity must be related, in the circumstances of his case to what he could earn in Jamaica (where he had a right to work) or Costa Rica where he was permitted to work.

11

When not seeking work in these Islands the plaintiff spent time in Jamaica where, he admits, he made no attempt to engage in gainful occupation. He stated that he could more efficiently employ his efforts in assisting his father on his father's farm. His parents were keeping him at the time, when he was not living with his wife whom he married in 1976. His wife also supported him and gave him financial assistance before and after their marriage. He received further financial from his sister through his mother — to the tune of U.S. $50 a week. His “adopted” uncle also gave financial support over the period in the sum of 49,000. In my view the defendant is in no way accountable for the plaintiff's failure to engage in any gainful occupation while in Jamaica or while being supported by his wife in these Islands.

12

There was no evidence as to why the plaintiff, after substantially recovering, did not continue with the venture in Costa Rica, which was earning him about $120 a week. There was no evidence to the effect that he was precluded from continuing this venture or was, because of some disability associated with the accident, unable to continue with it. Hauling coffee to a mill would not appear to call for any special skills. Nothing in the agreed reports of the doctors associated with him at the relevant time, Dr. Soto, Dr. McNeil-Smith and Dr. McHardy, suggest any disability precluding him from this activity.

13

His injured leg had the final cast removed on 15 th December 1974. In all the circumstances, allowing a reasonable period for convalescence and rehabilitation I assess the period of incapacity for undertaking the gainful occupation he was following immediately before the accident at 21 weeks at $120 incidentally falls within the period he intended to be in Costa Rica studying languages, living with his “adopted” uncle and, presumably, following the occupation he was following at the time of the accident.

14

Any diminution in earnings capacity over any subsequent period falls for consideration under the assessment of general damages.

General Damages
15

It should be noted that the agreed reports of the plaintiff's medical advisors were based in part on information supplied to them by the plaintiff himself. In some instances that information is demonstrably incorrect. For example, he appears to have told Dr. V. O. Williams (report of 7 th November 1977) that his unfortunate marriage was right after the accident (demonstrating impaired judgment). In fact it was contracted some twenty months after the accident. Further, he appears to have told Dr. Williams (report on July 1977) and Dr. McHardy (report on 17 th March 1975) that he lost consciousness as a result of the accident. However, if one examines his statement to the police on the day following the accident (Ex. B) it is obvious from his memory of events following the accident that he had not lost consciousness. There is no suggestion in that statement that he struck his head on anything at the time – an embellishment that has crept into later reports. The report of Dr. F. J. Williams, who was medical officer at Georgetown Hospital...

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