Cramer v Samuels

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Glasgow, J.,.
• Judgment Date: 14 March 1972
• Neutral Citation: VG 1972 HC 1
• Docket Number: No. 46 of 1970
• Date: 14 March 1972

High Court

Glasgow, J.

No. 46 of 1970

Cramer

and

Samuels

Appearances:

J.S. Archibald for Plaintiff

McW. Todman for first-named Defendant.

Tort - Negligence — Damages — Personal injury.

Facts: Evidence revealed that the plaintiff, a 70 year old medical consultant, was severely injured by the negligent driving of the plaintiff. The injury described by the doctor as the worst he had seen caused gross deformity in both legs and shortened one of the plaintiff's legs at least ¹/₂inches. At the time the plaintiff had a thriving medical practice with a clientele from within and without the country. He was also an opera singer and participated in amateur theatricals.

Held: Special damages awarded $33,828 and general damages $103,828.

Glasgow, J. .

1 The Plaintiff's claim against the Defendants is for damages for personal injuries and loss and damage allegedly (occasioned to the Plaintiff by reason of the negligence of the first Defendants the servant or agent of the second Defendant, in the driving and managing of a Volkswagen motor car No. V.I 1827 owned by the second Defendant, along the public road at Huntum's Ghut in the island of Tortola in the British Virgin Islands on the 4th day of August, 1970.

2 The first Defendant admitted in his Defense that on the date and place mentioned in the Statement of Claim the Plaintiff were involved in a collision with a motor-car driven by the first Defendant and owned by the second Defendant. Save as aforesaid the first Defendant denied paragraph 1 of the Statement of Claim, The first Defendant denied that he was guilty of the alleged or any negligence or that the matters complained of were caused as alleged in the statement of Claims. Further or alternatively the first Defendant alleged that the said matters were caused wholly or in part by the Plaintiff's negligence.

3 The second Defendant did not enter an appearance to the writ, and interlocutory judgment was entered against him for damages to be assessed.

4 Only the Plaintiff and the first Defendant gave evidence as to how and where the accident occurred, and their accounts differ considerably.

5 I do not believe that the accident occurred at the place and in the manner stated by the first Defendant, The evidence of Dr. Tattersall as to the injuries sustained by the Plaintiff, and the evidence of Sergeant Duncan who, with the first Defendant) visited the scene shortly after the accident, seem to support the Plaintiff's version as to how and where the accident occurred. Moreover, I was favourably impressed by the demeanour of the Plaintiff in the witness-box, but not at, all impressed by the demeanour of the first Defendant while he was giving evidence.

6 The facts as I find them are as follows: On the 4th August, 1970 the Plaintiff lived at Huntum's Ghut, near Road Towns Tortola, There is a paved public road which runs from East to West until it reaches opposite the Plaintiffs house when it changes its direction to North to South forming an elbow. There is a tamarind tree on the arm of the elbow. This tamarind tree is not in the road. There is a slight decline in the road leading from Huntum's Ghut to Road Town. Shortly before 8 a.m. the Plaintiff pushed the chassis of a perambulater containing a light 6 foot dinghy on to the unpaved verge of the public road near his house. The chassis of the perambulator was 3 feet in length. Attached to the chassis was a raised handle. The dinghy rested lengthwise on the chassis and under the handle. No part of the dinghy protruded beyond the handle at one end, but about 2 feet of the dinghy protruded beyond the chassis on the other end. The chassis was fitted with brakes and the Plaintiff had applied the brakes as he was waiting for someone from his house to bring him a hat. The dinghy was made fast to the chassis by means of clips and in addition it was tied to the chassis by means of a rope.

7 At about 8 a.m. the Plaintiff was standing looking towards the curve in front of his houses holding with his left hand the end of the dinghy that was nearer to bite, when motor car No.V.I.1827, drives by the first Defendant and owned by the second Defendants approached the curve in front of the Plaintiff's house at about 40 miles per hour and collided violently with the Plaintiff who was then standing on the unpaved verge of the road. At the date of the accident the first Defendant was 17 years of age and was not yet a licensed driver. The accident wasp I finds caused by the sole negligence of the first Defendant is driving at a speed which was toe fast in the circumstances, in failing to slow down the said motor car when approaching the curve is front of the Plaintiff's house, and in failing so to control the said motor car as to avoid colliding with the Plaintiff.

8 I may mention in passing that even if I had rejected the Plaintiff's account of the accident and accepted that of the first Defendant, I would still have found that the accident was caused by the sole negligence of the first Defendant.

9 As a result of the collisions the Plaintiff sustained the following injuries;-

• (1) There were multiple lacerations of the fact and scalp with an underlying non-depressed fracture of the frontal region of the skull. The Plaintiff had been concussed by this injury but was conscious at the time of admission.

• (2) There was a compound comminuted fracture of the left tibia in its lower third with a double fracture of the left fibula.

• (3) There were two compound comminuted fractures of the right tibia, one in its upper third and one in the lower third with an associated double fracture of the right fibula.

• (3) There was a fracture dislocation of the carpometacarpal point of the left thumb.

10 Following the Plaintiff's admission to Peebles Hospital in Road Tawny his fractures were reduced as well as possible, but owing to his poor general condition following the accident a general anaesthetic was contra indicated. After the initial period of resuscitation and after his general, condition had improved satisfactorily, the Plaintiff was transferred on the 13th August, 1970 to the Orthopaedic Unit of the University College Hospital in Jamaica where he remained for three weeks. Whilst he was there the fractures were treated by conservative measures that is, further attempts at accurate reduction followed by immobilisation in plaster of Paris casts. However, at no stage were the reductions satisfactory and there ensued a considerable degree of mal-union with deformities in particular of both tibial fractures. Because of slow union of the fractures, immobilisation in plaster was continued until April 1971 when the casts were discarded and some...