Cyrus Claxton v Cedric Dawson

JurisdictionBritish Virgin Islands
JudgeBarrow, J.
Judgment Date01 November 2004
CourtHigh Court (British Virgin Islands)
Docket NumberBVIHCV2002/0180
Date01 November 2004

IN THE HIGH COURT OF JUSTICE

BVIHCV2002/0180

BETWEEN
Cyrus Claxton
Claimant
and
Cedric Dawson
Defendant
Appearances:

Patrice Nisbett for Claimant, with Benedicta Samuels

Terrence Neale and Heather Tull for Defendant

Barrow, J.
1

$450,000.00 is the approximate amount which Mr. Claxton seeks as damages for pain and suffering, loss of amenities, lost and future loss of income, and the cost of past and future medical treatment. $40,000.00 is closer to what the damages should be, the defendant submits.

The claimant's injuries
2

Mr. Claxton was injured on 2 November 2000 when the defendant's car hit from behind the car that the claimant was driving. Judgment on admissions was entered in April 2003. The report 1 by a Neuroradiologist on a MRI examination of the claimant's cervical spine reported ‘Soft tissue signal in the anterior epidural space at C3–C4 and C4–C5 appear to represent disk herniations. A right-sided disk herniation with an extruded fragment is noted at the C3–C4 level with significant compression of the cervical cord on the right side. This

extruded fragment extends across the C3 and C4 vertebra. There is a small disk herniation centrally at C4–C5.’
3

Twelve documents consisting of medical reports from six doctors and a physiotherapist and two estimates of the cost of surgery were among those produced. One doctor testified for each party. There was no conflict in the medical evidence as to the injury to the claimant although views differed on treatment.

4

Dr. Pablo Marrero testified for the claimant. He is an othopaedic surgeon who practices in Puerto Rico. It appears that the defendant's insurers directed the claimant to him. He was the one who sent the claimant to do the MRI to rule out the possibility that it was a case of disc herniation. The doctor had made an initial diagnosis of cervical sprain but this yielded to the indications, principally the pain that the claimant continued to suffer, that it could be a case of chronic cervical pain that “may take any where from months to years to heal”. 2 As the MRI indicated it was, in fact, a case of disc herniation. Dr. Marrero's first report, which he wrote after he had seen the claimant thrice, stated that the claimant has been complaining of cervical pain, stiffness and discomfort since the accident. The report stated that the discomfort and pain continued despite treatment to that point.

5

The last time that Dr. Marrero saw the claimant was on 25 June 2002. The doctor's report of that date stated that despite conservative treatment up to that point the claimant ‘continues with signs and symptoms, secondary to cervical nerve radiculopathy because of his lesions, now to the point that has incapacitated him to perform his regular duties.’ The report went on to recommend decompression surgery and cervical fusion to relieve the symptoms and that this should be done as soon as possible.

6

According to my count the claimant has been examined by some seventeen doctors: two in Puerto Rico, one in St. Thomas, six in Tortola, three in New York and four in St. Kitts. The last reported examinations were done in Tortola by the defendant's medical witness, Dr. Ifeanyi Ojuro, on 15 January 2004 and after 23 March 2004. Dr. Ojuro confirmed, based on his reading of the MRI, that the claimant suffered significant compression to the

cervical cord. None of the doctors whose reports are before the court doubted that the claimant experienced and continues to experience pain as a result of the disc herniation and nerve compression.
Pain and suffering, loss of amenities
7

The claimant described in his witness statement the intense pain that he felt, mainly in his neck and shoulder region, right after the accident. He said there was also a burning in the sole of his feet and tingles and numbness in his hands. He said he has continued to experience these conditions from the date of the injury to this day. Shortly after the date of the accident, he indicated, because of the excruciating pain he went to the defendant's insurers and they recommended that he visit Dr. Marrero in Puerto Rico. The claimant told in his witness statement of the sundry visits to different doctors and the treatment options they recommended to him. The intense pain continued. Massages that he got at a physical therapy centre did not help greatly. He said that sometimes when the pain came over him he ‘would become immobile for up to at least a week’. It was because he was ‘experiencing all this pain’ that he consulted on various occasions with the doctors in St. Kitts (his home land) and in Tortola. It appears they all recommended pain killers 3 to alleviate the pain he was experiencing.

8

Since the collision, the claimant stated, his family life has been tremendously affected since he can no longer help around the house with household chores. His formerly healthy sexual relationship has deteriorated to virtual non-existence. He has lost appetite, although at the trial he said that his appetite has improved. He also said that he had to give up his ‘musical career’ as the drummer in a band popularly known as “Splash”. He has been unable to work as an auto-body repairer. To this last I shall return to examine the challenge to it.

9

The claimant's companion made a witness statement that confirmed him as to the intense pain that he suffers and the debilitation that it causes. She said that the claimant sleeps and lies down most of the time because of the intense pain from which he suffers. On occasions, she stated, it is ‘difficult to communicate with the claimant because he would

become quite agitated easily as a result of the excruciating pain he is experiencing.’ She said that the accident ‘has basically made the claimant to be bed bound which was unlike the claimant before the accident.’
10

Skilful cross-examination of the claimant and his companion made some inroads into their evidence as to pain and suffering and loss of amenities. Mr. Neale established that there were times when the pain was not as bad and that the claimant was, for at least one particular period, not in any ‘acute distress’. The 18 July 2001 report of Dr. Bernard Rawlins was particularly relied on by counsel to establish that the claimant had told the doctor that the pain had gotten better and that, therefore, the claimant's earlier testimony in cross-examination that the pain was constant 4 was untrue. 5

11

In that same report the doctor stated that his examination revealed that the patient was ‘in no acute distress’; that he has a full range of pain free motion; and that he has good cervical range of motion which is pain free. Based upon what the claimant told Drs. Rawlins and Simotas in July 2001 it appears that in that month and for some months before he was not experiencing excruciating or intense pain. From this evidence I accept that there may have been other periods when the pain would have been similarly mild. However, there is no evidence to rebut the evidence of the claimant that at times he experienced intense pain. I note that he did not say to any of the doctors that he was ever free of pain; he said that the pain had improved. Mild pain is still pain.

12

I accept the evidence of Dr. Ojuro as to the symptoms that are normally associated with the claimant's injury. He said ‘There are a variety of symptoms. One of them is pain, chronic pain. Some times you might have some off days, some good days and bad days.’ The amount of medical attention that the claimant sought makes me believe he was often in pain. According to the claimant the pain was so bad at times that he considered suicide.

13

It is clear that the claimant's problem with pain from the injury was sufficiently severe to make it advisable that he undertake surgery. As Dr. Ojuro said, it is only exceptionally that you resort to surgery to relieve pain. ‘Why? Because the surgery itself carries with it significant risks that you do not want to go to surgery unless it is absolutely necessary to do so’. It is in the same report on which counsel for the defendant relies to show that the claimant was not in acute distress that Dr. Rawlins recommends ‘surgery to address the problem and because of the pressure on the cervical cord we feel that he should have an anterior cervical discectomy and fusion to relieve the pressure and decrease the risk of myelomalacia’. This is the same procedure that Dr. Marrero on 25 June 2002 also recommended to relieve the claimant's symptoms.

14

In his testimony Dr. Marrero clarified that the object of the recommended surgery was the relief of the pain symptoms. A number of other doctors recommended surgery. Indeed, it is the defendant's case that the claimant's damages must be reduced because of his failure to mitigate his damage by undergoing surgery.

Mitigation—failure to undergo surgery
15

The defendant contended that the claimant failed to follow the advice of his medical practitioners to undergo as soon as possible decompression surgery to relieve his pain and therefore his disability. The defendant pointed to the evidence that as early as July 2001 the claimant was advised by Dr. Rawlins to have the surgery. Actually, before that, on 12 June 2001 a neurologist, Dr. Arturo Ortiz-Padua, had advised that ‘surgery is the best option for him’. According to the claimant in his witness statement Dr. Jose Montanez-Huertas had refused to perform the epidural injection that Dr. Simotas later did because Dr. Montanez-Huertas considered that the only option for the claimant was surgery. 6 Dr. Jana Downing, in Tortola, on 11 July 2002 agreed with the earlier recommendations that the claimant should undergo surgery. Dr. Marrero had two days earlier recommended that the claimant undergo surgery as soon as possible. In his testimony Dr. Marrero stated that there was an 80% to 85% chance that surgery to remove

the disc that was causing...

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