Claudette Francis Appellant v Cecilia Martin Respondent

• Jurisdiction: British Virgin Islands
• Judge: BANNISTER, J.A. [AG.]
• Judgment Date: 20 September 2010
• Neutral Citation: VG 2010 CA 8
• Judgment citation (vLex): [2010] ECSC J0920-1
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: HCVAP 2009/007
• Date: 20 September 2010

[2010] ECSC J0920-1

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mr. Davidson Baptiste Justice of Appeal

The Hon. Mr. Edward Bannister Justice of Appeal [Ag.]

HCVAP 2009/007

Between:

Claudette Francis

Appellant

and

Cecilia Martin

Respondent

Appearances:

Mr. Gerard St. C. Farara, QC for the appellant

Mr. Sydney Bennett, QC for the respondent

Civil Appeal – personal injuries – quantum – damages – whether a particular head of damages claimed constitutes special or general damage – whether particulars of general damage need to be given before more than purely nominal sum recoverable – whether evidence needs to be led in support of claim for general damages before more than purely nominal sum recoverable – causation

The appellant appealed to the Court of Appeal against certain elements of the damages awarded to the respondent for injuries and other loss caused in a road accident for which the appellant had been found to have been wholly liable. The respondent's claim at trial for future medical expenses had not been specially pleaded and no evidence was led as to the quantum of that part of the respondent's claim.

Held: allowing the appeal in part.

• 1. That other than in relation to future medical expenses the judge's award contained no error either of principle or of assessment;

• 2. That the judge had based her award for future medical expenses upon the estimated cost (25,000.00 Euros (US$32,160.50)) of a remedial surgical procedure which the evidence showed would have only a 50% prospect of success and where there was no suggestion that the respondent intended to undergo the procedure; that in those circumstances the judge had taken into account an irrelevant factor which had no bearing upon the respondent's claim for future medical costs;

• 3. The respondent's claim, accepted by the judge, to be compensated for future medical expenses was a claim for general damages which did not require to be specially pleaded.

  Shearman v Folland [1950] 2 KB 43 and British Transport Commission v Gourley [1956] AC 185 applied;

• 4. That despite the absence of evidence bearing upon the quantum of the respondent's claim for future medical expenses the court had a duty to recognize it by an award that was not out of scale; that the respondent's original submission at trial that an award of US$20,000.00 in respect of future medical expenses would be a sufficient recognition of her loss was clearly not out of scale, given the respondent's age and the deteriorating state of her health as a result of the accident; and that accordingly the sum of US$20,000.00 would be substituted for the sum of 25,000.00 Euros in respect of the respondent's claim for future medical expenses.

  Greer v Alstons Engineering Sales and Services Ltd [2003] UKPC 46 and Morillo v Forbes BVI Civil Appeal No 8 of 2008 applied.

BANNISTER, J.A. [AG.]

1 This is an appeal from parts of an order made by Joseph-Olivetti J at the trial of this action. The claim is for loss and damage arising out of personal injuries suffered by the respondent in May 2005, when she was struck by a motor vehicle driven by the appellant as she was crossing the street in Road Town, Tortola, with her husband. At the trial on liability the Appellant was found to have been 100% responsible.

2 There is no need for the purposes of this appeal to describe the respondent's injuries in great detail: the most significant feature of them is that as a result of the fact that the brunt of the impact was received by the respondent in her lower back area, she suffered a disruption of the sacroiliac joint, which is developing into post-traumatic osteoarthritic lumbar spine. This means that she cannot sit or stand for any period longer than about half an hour without experiencing pain. She has to lie down to relieve the pain. She cannot walk for a distance greater than some 500 yards or so. There is no challenge to these findings. They mean that the respondent is not only in constant pain or under the constant threat of pain, but that she is also seriously disabled, nonetheless so because the symptoms of her disability are invisible.

3 At the time of the accident the respondent was employed by the Government of the Territory of the Virgin Islands on contract as Chief Training Officer. She is highly qualified. She has a BSc from the University of London, a Post Graduate Certificate in Education from the University of Reading, a Certificate in Social Security Management from Glasgow Polytechnic and a Masters Degree (with distinction) in Business Administration from the University of the West Indies.

4 The respondent's contract with the Government of the Territory of the Virgin Islands was due to expire on 30 ^th June 2005, but on 5 ^th May 2005, about a week before the accident, the Director of Human Resources had given an indication that the Government wished to extend the respondent's employment for a period of up to six months, commencing on 1 ^st July 2005. There was a meeting to discuss the matter between the respondent and the Head of Human Resources on 9 ^th May 2005, four days before the accident. However, it appears from a letter from the Human Resources Department dated 28 ^th June 2005 that it was agreed at some later date that the respondent should continue to be employed on a temporary basis only for a three month period at a salary of $51,310.00 per annum plus certain allowances. The learned judge found that there was no doubt that this reduction in the length of the respondent's continued employment from six to three months was caused by the respondent's impaired state of health following the accident and we see no reason to interfere with that finding.

5 Although the respondent attempted to continue with her employment by the Government of the Territory of the Virgin Islands she was eventually forced as a result of her condition to resign in July 2005 and to return to her native, the Commonwealth of Dominica, to recuperate. She found employment there with an institution called Ross University and was given an engagement as Director of Human Resources from 1 ^st January 2006 to 31 ^st December 2010 at a salary of EC$96,000.00. The problem was that Ross University is an uncomfortable two hour drive from Roseau, where the respondent resides, and she eventually gave four weeks notice expiring on 15 ^th August 2007. The learned judge accepted that the reason for this was the respondent's health, while noticing that that was not the reason given in her letter of resignation. The respondent found employment nearer home with the Government of the Commonwealth of Dominica as Coordinator of a World Bank project at a salary of some US$33,567.00 per annum (EC$7,600.00 per calendar month). With effect from 21 ^st September 2008 she was compelled to resign from this position also by reason of her disability. The respondent has not worked since.

6 The learned judge awarded the respondent US$45,000.00 for pain and suffering and loss of amenity together with a modest figure to compensate the respondent's husband for time lost in having to absent himself from work to look after the respondent in the early period after the accident. There is no appeal against those parts of the award.

7 In respect of the reduction in the length of the respondent's extended employment by the Government of the Territory of the Virgin Islands from six to three months and the respondent's inability to complete even that much before having to return to the Commonwealth of Dominica, the learned judge awarded the respondent four months loss of earnings. The respondent did not claim compensation in respect of her resignation from Ross University, but she did claim for three months in respect of her resignation from her post with the Government of the Commonwealth of Dominica on the World Bank project, which the judge described as a proper claim.

8 Mr. Gerard Farara, QC, for the appellant, criticizes the causal basis for these awards for loss of past earnings. He says, in short, that the respondent has not proved that the reasons for the terminations in respect of which she claims was the impairment in her ability to continue her employment as a result of her injuries. In fact, the respondent told the court in her witness statement that as a result of her injuries her level of productivity suffered so that she was forced to resign and recuperate. The learned judge plainly accepted this evidence, which was not challenged in cross examination. The respondent's witness statement was made on 18 ^th July 2008, after she had resigned from but before she ceased working at the World Bank project. She indicated that her prognosis at that time was bad and that work requiring continuing periods of being seated was affecting her health. Her resignation letter makes it plain that her inability to continue with her employment was (1) the result of her medical condition and (2) taken in the light of her doctor's advice. She said she would try to look for part time work – assuming that any could be found.

9 It seems to us that this evidence establishes a clear causal connection between the consequences of her injuries and the respondent's inability to continue in the two employments. The learned judge's award in respect of past employment cannot be faulted.

10 As for the loss of future earnings, the learned judge found, first, that had it not been for her medical condition, the respondent would have continued working until the age of 65. She was 57 when the trial took place. The judge treated the respondent as 'wholly unemployable'. Mr. Farara, QC (who did not appear below) criticizes the medical evidence given at trial. He says that some of it was hearsay; that the trial judge was wrong to allow the respondent's principal medical practitioner to give expert evidence; and that there was no real evidence that the respondent...