Forbes v Forbes

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Hewlett, J.
• Judgment Date: 11 October 1976
• Neutral Citation: VG 1976 HC 4
• Docket Number: Civil Motion No. 1 of 1974
• Date: 11 October 1976

High Court

Hewlett, J

Civil Motion No. 1 of 1974

Forbes

and

Forbes

Appearances:

Mc W. Todman for plaintiff.

J.S. Archibald for the defendant

Constitutional law - Legislation — Validity.

Facts: A motion was filed by the applicants who claimed to be entitled to certain lands which were the subject matter of court proceedings but were stayed by virtue of the Land Adjudication Ordinance, 1970. It was alleged by the applicant that the ordinance was repugnant to the Constitution.

Held: S.7 provided for stay of action relating to land in an adjudication area which had not been completed before the adjudication procedure began. This was in effect a perpetual stay. Section 23 of the Ordinance denied a right to appeal on a question of fact and vested the appellate jurisdiction in the High Court of Appeal. That this was a factual ousting by the legislature of the jurisdiction of the High Court. It was repugnant to s.7(3) and s.23 of the Constitution null and void.

Hewlett, J.

1 The plaintiff's claim against the defendant is for damages in negligence for personal injury and loss suffered as a result of an accident on the 24 ^th July, 1973 on the public road at Sea Cow Bay, Tortola, British Virgin Islands, when the defendant's truck VI 1623 struck and knocked down the plaintiff while riding his donkey along the said road.

2 The defendant entered appearance to the suit by solicitor but failed thereafter to file and deliver any defence, and the plaintiff accordingly entered interlocutory judgment in default. The question of the defendant's liability therefore does not arise.

3 Upon a summons for directions, it was ordered that the only issues for determination at the trial would be the quantum of general damages and the loss of earnings. The admitted items of special damages were:-

Hospital fees	$540.00
Transportation expenses
to and from hospital	$80.00
Medical fees	$15.00
	$635.00

4 As a result of the accident, the plaintiff was hospitalised from the 24 ^th July, 1973 to the 31 ^st October, 1973. His injuries included:-

• (a) a deep laceration of the scalp approximately 4 inches in length;

• (b) concussion as a result of the head injury;

• (c) several minor grazes of the limbs;

• (d) a severe comminuted fracture of the right femur in the supra-condylar region extending to the knee joint;

• (e) a stellate fracture of the patella; and

• (f) a gross hemarthrosis in the knee joint.

5 The medical evidence which was in no way challenged by the defence (and which therefore I accept) indicated that the injuries to the femur and knee were of the most serious nature and necessitated the use of skeletal traction for two months followed by intensive physiotherapy.

6 The plaintiff is an agricultural labourer. He works for small farmers principally and earns an average daily wage of $10.00. He himself admits however that he only works five days a week, from Monday to Friday. The details of the days lost are set out in his particulars and are as follows:-

In hospital	100 days
walking with aid of crutches	92 days
unable to work	150 days
	342 days

7 but these days included Saturdays and Sundays and public holidays which are admittedly not working days. When this fact was brought to the attention of counsel for the plaintiff he readily conceded to a reduction of the figure from 342 to 242. The loss of earnings is accordingly assessed at $2420.00 and the special damages at $3055.00.

8 I turn now to the assessment of the general damages. Here I am required on the authority of Cornilliac v. St. Louis (1965) 7 W.I.R. 491 to give consideration to:-

• (a) the nature and extent of the injuries suffered;

• (b) the nature and gravity of the resulting physical disability;

• (c) the pain and suffering which had to be endured;

• (d) the loss of amenities suffered; and

• (e) the extent to which, consequentially, the plaintiff's pecuniary prospects have been affected.

9 I am however not required to quantify the damages separately under each head and then add them up to arrive at the final figure, although as Wooding C.J. puts it a p. 494:-

“It is important for making a right assessment that the several heads damage should be kept firmly in mind and that there should be a conscious, even if undisclosed, quantification under each of them as thereby to arrive at an appropriate final figures”

10 I am also expected to have regard to...