Yates v Radtke

• Jurisdiction: Cayman Islands
• Judge: (Smellie, J.)
• Judgment Date: 24 October 1997
• Court: Grand Court (Cayman Islands)
• Date: 24 October 1997

Grand Court

(Smellie, J.)

YATES

and

RADTKE

R. Clement for the plaintiff;

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

Cases cited:

(1) Adamek v. Jurgens, 1992-93 CILR N-19, considered.

(2) Admiralty Commrs. v. S.S. Susquehanna (Owners), [1926] A.C. 655, dicta of Viscount Dunedin applied.

(3) Ashcroft v. Curtin, [1971] 1 W.L.R. 1731; [1971] 3 All E.R. 1208.

(4) British Transp. Commn. v. Gourley, [1956] A.C. 185; [1955] 3 All E.R. 796.

(5) Cook v. Consol. Fisheries Ltd., The Times, January 18th, 1977, unreported.

(6) Cunningham v. Harrison, [1973] Q.B. 942; [1973] 3 All E.R. 463, considered.

(7) Donnelly v. Joyce, [1974] Q.B. 454; [1973] 3 All E.R. 475, followed.

(8) Ebanks v. Callender, 1992-93 CILR N-19, considered.

(9) Hammer v. Martin, 1992-93 CILR N-20, considered.

(10) Housecroft v. Burnett, [1986] 1 All E.R. 332; (1985), 135 New. L.J. 728.

(11) Mitchell v. Mulholland (No. 2), [1972] 1 Q.B. 65; [1971] 2 All E.R. 1205.

(12) Moeliker v. A. Reyrolle & Co. Ltd., [1977] 1 All E.R. 9.

(13) O”Brien”s Curator Bonis v. British Steel PLC, 1991 S.L.T. 447; 1991 S.C.L.R. 831.

(14) Phillips v. South W. Ry. Co.ELR(1879), 4 Q.B.D. 406, dictum of Cockburn, C.J. applied.

(15) Smith v. Manchester Corp.UNK (1974), K.I.R. 1, sub nom. Smith v. Manchester City Council, 118 Sol. Jo. 597.

(16) Uctkos v. Mazzetta, [1956] 1 Lloyd”s Rep. 209, distinguished.

(17) Wright v. British Rys. Bd., [1983] 2 A.C. 773; [1983] 2 All E.R. 698.

Tort-personal injuries-damages-loss of earnings-self-employed plaintiff may recover proper and reasonable cost of providing substitute services-may include managerial and manual staff to perform tasks previously performed by plaintiff alone-award reduced if substitute is relation unless has given up full-time employment at comparable rate of pay

Tort-personal injuries-damages-loss of earnings-effect of expansion of business-self-employed plaintiff may recover cost of additional staff to meet increased demand for services plaintiff would have performed personally-expansion of business after plaintiff”s return to work not proof that incapacity caused loss of earlier business opportunity

Tort-damages-property damage-may recover original cost without depreciation of vehicle irreparably damaged in accident if nearly new collector”s item and cost of replacement exceeds original cost

Tort-personal injuries-damages-hospital visiting expenses-may recover cost of relative accompanying plaintiff to hospital if reasonably necessary to assist recovery-no award for cost of plaintiff”s mother and children in addition to spouse-child-care expenses may be claimed for spouse”s absence

The plaintiff brought an action against the defendant to recover damages in respect of personal injuries and losses sustained as a result of a road accident caused by the defendant”s negligence.

The plaintiff, a 35-year-old service station manager, was injured when the defendant”s car swerved in front of his motor cycle. He sustained fractures to the left side of his body, including his pubic bone, hip-joint, femur, tibia, fibula and ankle-joint. He was hospitalized in Miami for a month, during which he underwent a series of operations to fix the fractures with steel plates and pins and for debridement of his ankle-joint. He returned to Miami four times for further surgery to remove the plates and graft bone.

He had been a fit and active person, a keen jogger and motorcyclist, and was trained as a builder. His injuries left him with 25% permanent physical disability and progressive deterioration of his ankle-joint through post-traumatic arthritis. He was no longer able to jog or run and could not carry out manual activities at the service station for prolonged

periods though he could still ride his motor cycle. He would require further operations to replace his hip-bone and cosmetic surgery on his ankle, with a risk of attendant complications.

The service station was owned by the plaintiff”s father-in-law and leased to an oil company, which in turn sub-leased it to the plaintiff, with a dealership agreement for three years and an option to renew. The station had been closed for seven months for rebuilding, and had reopened two months before the hearing, since when business had increased by 60%.

The plaintiff claimed damages for, inter alia, pain, suffering and loss of amenity, medical expenses, damage to property, past and future loss of earnings and loss of earning capacity.

Held, assessing damages as follows:

(1) In respect of his pain, suffering and loss of amenity, the plaintiff would be awarded $60,000 damages. The court had taken into account the pain and discomfort of the original accident, the surgical procedures which had already been necessary and which would be required in future and the continuing pain from the plaintiff”s post-traumatic arthritis. The award also reflected his 25% long-term functional disability and consequential curtailment of activities and general enjoyment of life (page 462, line 6 – page 463, line 3).

(2) Since the plaintiff was entitled to engage a substitute during the period of his incapacity, an award would be made to cover the cost of employing his father-in-law to run the service station during his convalescence, as well as an additional employee to carry out the manual work which his father-in-law could not perform due to his age. However, since his father-in-law was a relative and had not given up full-time employment at a comparable rate to work for the plaintiff, the proper and reasonable cost of his services would be reduced by 25% to avoid over-inflation of their value. Whilst the necessity of increasing the salary of an existing employee to undertake managerial duties for that period was not proved because of the father-in-law”s presence, that expense, and the cost of continuing to employ the additional manual worker from the plaintiff”s return to work until the closure of the station for rebuilding were justified given the plaintiff”s continued incapacity and an award would be made in respect of that loss. There was no proof, however, that further profit had been lost because the plaintiff had missed the opportunity to expand his business at an earlier date (page 458, lines 2–10; page 458, line 21 – page 459, line 4; page 459, lines 11–28; page 461, lines 12–37).

(3) The court rejected the defendant”s argument that the expansion of the business constituted a novus actus interveniens precluding her liability for any expenses arising from it. The plaintiff was not required to accept the impact of his injuries on his business profitability and career prospects. In respect of future loss of profit, the court would award a sum

representing four years” salary for the extra manual worker, reflecting its expectation that the plaintiff”s managerial responsibilities would by that time have increased to a point when it would be counter-productive for him to engage in manual tasks and, even if he were not incapacitated, he would in any event have employed an additional worker. Since it was likely that the existing employee, whose salary had been increased to reflect his managerial functions, would have been promoted in future, no award would be made to cover his future salary (page 459, line 40 – page 460, line 28; page 460, line 44 – page 461, line 11).

(4) Although the plaintiff”s injuries had no immediate impact on his earning capacity, and the risk of there being such impact in the near future was small, it was possible that by the expiry of his tenure of the service station and dealership agreement he could become unacceptable to the oil company as a dealer, despite the continued goodwill of his father-in-law. Since he would no longer be able to find work as a builder (the only other trade for which he was trained) he would be awarded $45,000, based on six years” income for a construction worker, with deductions to reflect the degree of risk and the possibility of his finding alternative sedentary employment (page 464, line 16 – page 465, line 14).

(5) The plaintiff would be awarded the estimated cost of his future medical expenses, including the cost of hip-replacements, cosmetic surgery and other procedures (based on the statistical probability of each procedure being required and the median estimated risk of complications arising, according to the expert medical witnesses) and also annual examinations, x-rays, medication and travelling expenses, with a multiplier of 12 to reflect the plaintiff”s life-expectancy (page 463, lines 4–9; lines 20–26; page 464, lines 4–15).

(6) Special damages would include an award of $13,776 for the cost price without depreciation of the plaintiff”s Harley Davidson motor cycle which had been irreparably damaged in the accident. Since the motor cycle had been virtually new and of a specialist nature, and would cost more to replace that the value of the original, restitutio in integrum would be more onerous to the defendant than compensating the plaintiff for the cost price, and the latter”s request was not unreasonable (page 456, lines 6–14).

(7) The plaintiff would also receive the travelling and accommodation expenses incurred by his wife when she accompanied him to Miami for treatment for two week-long stays. However, since these visits were of limited duration and since the presence of the plaintiff”s mother and children in addition to his wife was not reasonably necessary to promote his recovery, their expenses would not be covered. An award would be made in respect of child-care expenses for the children in their mother”s absence (page 456, lines 30–41; page 457, lines 1–36).

SMELLIE, J.: The plaintiff applies for the quantification of damages

arising from injuries and losses sustained as the result of a collision due to

the negligent driving of the defendant. The liability of the defendant is

admitted. So also, to a large extent, is the quantum of the

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