Craig Hartwell v Kelvin Laurent Attorney General

• Jurisdiction: British Virgin Islands
• Judge: HARIPRASHAD-CHARLES J,Indra Hariprashad-Charles
• Judgment Date: 10 February 2006
• Docket Number: Claim No. 152 OF 1994
• Court: High Court (British Virgin Islands)
• Date: 10 February 2006

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CIVIL)

Before: The Honourable Madame Justice Indra Hariprashad-Charles

Claim No. 152 OF 1994

Craig Hartwell

Claimant

and

Kelvin Laurent The Attorney General

Defendants

Appearances:

Dr. Joseph S. Archibald QC with him Ms. Michelle Worrell and Mr. Thomas Theobalds for the Claimant

Mr. Baba Aziz, Senior Crown Counsel for the Defendants

Cases judicially considered and referred to in the judgment of the Court:

(1) Alphonso & Others v. Deodat Ramnath (1997) 56 WIR 183.

(2) Attorney General v. Hartwell (2004) 64 WIR 103.

(3) Auguste v. Neptune (1997) 56 WIR 229.

(4) Bird v. Cocking & Sons Ltd (1951) 2 TLR 1260.

(5) Bonnington Castings Ltd v. Wardlaw (1956) AC 613.

(6) Browne v. Corus (UK) (2004) PIQR 30.

(7) Cedric Dawson v Cyrus Claxton (Civil Appeal No. 23 of 2004 BVI unrep.).

(8) Cletus Dolor v Alcide Antoine et al (Claim No SLUHCV 2001/0555 unrep. St Lucia).

(9) Cook v JL Kier & Co Ltd. (1970) 1 WLR 774

(10) Cookson v Knowles (1979) AC 556.

(11) Cornilliac v St. Louis (1965) 7 WIR 491.

(12) Eagle v Chambers (2005) 1 All E R 136

(13) Grant v Motilal Moonan (1946) 43 WIIR 372.

(14) Fletcher v Autocar and Transporters Limited (1968) 2 QB 363.

(15) Francis and Leslie v. Maynes & Maynes (Civil Suit No. 14 of 1992) Antigua & Barbuda.

(16) Gailius Mathurin et al v Andrew Paul (Claim No SLUHCV 2002/0867 unrep. St Lucia).

(17) Gray v. Mid Herts Group Hospital Management Committee The times March 30 1974.

(18) Heaps v Perrite Ltd. (1937) All E R 60.

(19) Housecroft v. Burnett (1986) 1 All E R 332.

(20) Hutson v East Berkshire Health Authority (1987) AC 750, HL.

(21) Jobling v Associate Dairies Ltd (1982) AC 784.

(22) Leanna Forbes v. Ulbana Morillio (BVIHCV 2003/005).

(23) Lim Pooh Choo v Camden and Islington Area Health Authority (1980) AC 173.

(24) McGee v National Coal Board (1972) 3 All E R 1008.

(25) Miller v Ministry of Pensions (1949) 2 All E R 372.

(26) Moriarty v. McCarthy (1978) 1 WLR 155 Page v Smith No.2 (1996) 3 All E R 272.

(27) Rosetta Mayers v Deep Bay Development Company Ltd (Civil Suit No. 241 of 1993 Antigua & Barbuda).

(28) Senior v Barker and Allen Ltd. (1965) 1 WLR 429;

(29) Wells v Wells [1998] 3 All E R 481.

(30) Wilshire v Essex Health Area Authority (1988) 1 AC 1074

CATCHWORDS:

Personal Injury — Assessment of Damages — Negligence — Causation — Gun Shot Injury — Ulcerative Colitis — Medical Evidence — Limits of scientific proof — Proof of Special Damages — General Damages — Pain and Suffering — Loss of Amenities — Loss of Future Earnings — Multiplier — Multiplicand — Pensionable age of 65 — Sporadic Work — UK New Earnings Survey — Life expectancy — Ogden Tables — UK National Health Service (NHS)contributions.

HEADNOTE:

The Claimant, Craig Hartwell is an Englishman who at the time of the accident was 24 years old. He is now 36 years old. The first defendant is a rogue Police Constable of the Royal Virgin Islands Police Force. On 2 February 1994,he accidentally shot Mr. Hartwell at the popular Bath and Turtle Pub on the island of Virgin Gorda. Mr. Hartwell was visiting the British Virgin Islands as a tourist.

As a result of the shooting, Mr. Hartwell sustained a gun shot injury to his chest where the bullet entered from the back to the right of the third thorax vertebrae and exited to the front between the second and third ribs just right of the sternum. He was treated in the British Virgin Islands and St. Thomas, 900 cc of fluid was drained from his chest and he was treated with Ciprofloxacin antibiotics. By 4 February 1994 1200cc of blood was removed from his body and by 2 March 1994 1500 cc of fluid was aspirated from the right side of his chest; he suffered chest pains, nausea and shortness of breath.

Mr. Hartwell also received two blood transfusions before returning to his homeland England on 20 March 1994 where he received further treatment. He was admitted to hospital there where he was diagnosed with mediaetinal lymphadenopathy and mild splenomegaly. Culture of fluids aspirated fluids from his chest cavity revealed that he had developed an empyema. He was again treated with antibiotics, Voltarol and Stemetil but the nausea and anorexia continued beyond September 1994.

In October 1994, Mr. Hartwell developed bloody diarrhoea and was diagnosed with ulcerative colitis. By 6 December 1994 he was found to have more extensive colitis and was admitted to hospital.

In February 2003, Mr. Hartwell had another severe attack which did not respond to intravenous steroids and by September 2003, he underwent a colectomy. Between September and December 2003 an ileal-anal pouch was constructed on Mr. Hartwell and he still uses it.

On 29 July 1994 Mr. Hartwell instituted these proceedings against the first named defendant PC Laurent and the Attorney General as legal representative of the Government of the British Virgin Islands. On 15 May 1995, he obtained default judgment for damages to be assessed against PC Laurent. It was not pursued against him because of allegations of impecuniosity. The claim against the Government continued with the Government denying liability.

After trial before Georges J, Mr. Hartwell's action against the Attorney General was dismissed on 21 November 2000. Mr. Hartwell appealed to the Eastern Caribbean Court of Appeal and on 17 September 2001 the appeal was allowed for damages to be assessed. The Government of the British Virgin Islands appealed against that decision to Her Majesty's Privy Council and the Privy Council gave judgment in favour of Mr. Hartwell on 23 February 2004.

Upon Assessment of Damages as ordered by the Court of Appeal and affirmed by Her Majesty's Privy Council:

HELD:

• 1. The burden of proof as a matter of fact to show that on a balance of probabilities the gun shot injury caused or materially contributed to the disease of ulcerative colitis rests on the Claimant.

• 2. That the negligence causing the gun shot injury for which the Government of the BVI is liable, materially increased the risk of Hartwell developing ulcerative colitis hence justifies the imposition of liability for the injury and all the medical consequences flowing therefrom: Jobling v Associate Dairies Ltd (1982) AC 784 distinguished; dicta of Lord Denning in Miller v Ministry of Pensions (1949) 2 All E R 372 applied.

• 3. That the Court in the British Virgin Islands awarding damages to an Englishman injured in the British Virgin Islands should only have regard to awards in the same jurisdiction or in neighbouring localities where the social, economic and industrial conditions are similar.

• 4. Damages for pain and suffering while being incapable of exact estimation, the assessment must be a matter of degree based on the facts of each case and be made on the basis of giving reasonable compensation for the actual and prospective suffering entailed including that derived from the plaintiff's necessary medical care operations and treatment.

• 5. The award of damages for loss of amenities is in respect of the objective loss of amenities; loss of enjoyment of life, the hampering effects of the injuries in the carrying on of the normal social and personal routine of life with the probable effect on health and spirits of the injured party, the inability to engage in indoor and outdoor games, extent of dependence on the assistance of others in daily life, prejudice to the prospects of marriage, sexual impotence, inability to cope by looking after, caring for and rendering services to a dependant and inability to lead the life once led before injuries and age of injured party are all proper considerations to take into account in making such an assessment.

• 6. For injuries of the type classified as serious by the Judicial Studies Board an award of US$45,000 as given in Alphonso & Ors v Deodat Ramnath (1997) 56 WIR 183 is no longer consistent with the more recent awards made in this jurisdiction.

• 7. In making the assessment of general damages in respect of future loss of earnings there are numerous uncertainties to take into account which include the probable length of time of the future incapacity, prospects of obtaining employment and the normal hazards of life; first there must be a calculation as accurately as possible of the net annual loss suffered which is usually based on the average of the claimant's ‘take home’ pay this is to be used as the multiplicand; for the purpose of arriving at the multiplicand the basis should be the least amount the claimant would have been earning if he had continued without being injured.

• 8. That the claimant who was 24 at time of the accident and is now 36 would have had a working life of 65 years old thus 29 more years; accounting for the many contingencies, vicissitudes and imponderable or uncertainties of life and the fact that the award is a lump sum and applying the principles in the cases of Alphonso v Ramnath and Auguste v Neptune the claimant would have had a working life of 65 and hence a multiplier of 14 is appropriate for the award of loss of future earnings.

• 9. In relation to proof of past losses /special damages if in fact the damage is shown and no sufficient evidence is given as to its amounts so that it is virtually impossible to assess damages, only an award of nominal damages might be permitted.

• 10. For past care and assistance a lump sum award of a fair and reasonable sum may be made where there is no evidence adduced in opposition of the figure proposed— Housecroft v Burnett applied.

• 11. The appropriate discount rate in assessing rate in assessing rate in assessing future losses is 2.5% so as to take into account inflation and interest; the discount rate should reflect the likely investment of any lump sum in index-linked government securities which are virtually risk free but bring a lower rate of return than...