Hermione Rose Williams v Stacy-Ann Wynter
| Jurisdiction | British Virgin Islands |
| Judge | Sandcroft, M. |
| Judgment Date | 30 October 2020 |
| Neutral Citation | VG 2020 HC 84 |
| Court | High Court (British Virgin Islands) |
| Docket Number | CLAIM NO: BVIHCV2019/0038 |
| Date | 30 October 2020 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
CLAIM NO: BVIHCV2019/0038
Mr. Michael Fay Q.C. with Mr. Shane Quinn of Counsel for the Claimant
Mr. Terrance Neale with Ms. Elizabeth Ryan of Counsel for the Defendant
Sandcroft, M. [Ag]: On February 19, 2019, the claimant filed this claim for damages for personal injury. On the 14 th day of September 2019, Judgment in Default of Defence was entered against the defendant and in favour of the claimant for damages to be assessed. The claimant has now brought this application for an assessment of damages. The defendant who did not refute liability, sought, as is her right, to be heard on the quantum to be assessed.
On February 12, 2016 at approximately 8.30am the claimant was jogging in the vicinity of the Port Purcell Roundabout in Road Town, Tortola when a vehicle driven by the defendant collided with the claimant causing her to suffer certain injuries.
The claim is an action in negligence filed by the claimant, Hermione Williams, on February 19, 2019 against the defendant, Stacy — Ann Wynter, because of an accident which occurred on February 12, 2016 while the claimant was jogging in the Port Purcell Roundabout area and collided with the defendant as she was driving by resulting in certain injuries to the claimant. The defendant in her Defence filed in the matter did not dispute liability, however, she sought to be heard on the quantum of damages and the amount that the Court should award to the claimant.
The claimant consulted with Dr. Klaus Buring, an orthopaedic surgeon based at the Bougainvillea Clinic, Road Town, Tortola, who upon examination advised the claimant that she had suffered “a soft tissue injury over the outer right hip area with formation of a large haematoma and abrasions further over her right shoulder and elbow.” A subsequent x-ray taken of the claimant's pelvis and both hips on February 22, 2016 revealed that there was no clinical evidence of any skeletal injury.
The claimant was advised “to rest at home, adhering to the usual recommendation for soft tissue injuries by the acronym RICE (Rest-lce-Compression-Elevation).”
The claimant was also advised that it was necessary to “take time off from work as the haematoma was under tension and rest was required” however, contrary to this medical advice she returned to work the same day.
Over a period of approximately three months the swelling reduced in size and the haematoma underwent resorption. Miss Williams regained full function; however, “an area about the size of her palm over the right outer hip (trochanteric area) has a marked discolouration with a change in pigmentation of the skin was still clearly visible on December 21, 2016. This constituted a cosmetic change and is likely to remain permanent”
The claimant filed the present action on February 19, 2019 seeking special damages in the sum of $1,132.00 and unquantified general damages for pain and suffering which she alleged she suffered because of the defendant's negligence.
Judgment was entered for the claimant on September 14, 2019 with damages to be assessed.
On March 23, 2020, the Court made the Order for the filing of submissions by the parties and the assessment of damages.
The attorney-at-law for the claimant posited that the contents of the expert report and the Reply were repeated and relied upon. Dr Buring confirmed that the claimant sustained the following injuries:
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a. A “massive” haematoma over the right lateral hip (trochanteric) area with reabsorption after three months. 33 months post-accident, some discoloration over lateral hip area;
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b. Scaring over right shoulder — permanent;
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c. Scars over right arm on the elbow area — permanent; and
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d. Psychological impact from accident in the form of nightmares and flashbacks. Unable to resume running until 9 months after accident.
The claimant also submitted that the photographs of the injuries, including the recent ones showed the scars on her arm and shoulder were permanent. Further, the claimant described the emotional impact of the accident as well as the physical impact on her.
The claimant further posited that the expert report of Dr Buring indicated at page 3 that “this area was bruised and the skin very extended and tense”. That at page 5 the expert writes that “there was soft tissue injury over the outer right hip area”.
The claimant also posited that the expert report stated that “the clinical examination revealed the formation of a ‘massive’ haematoma over the right lateral hip (trochanteric) area.” The report continues, “I thus performed an aspiration with an 18 G needle but was only at that time able to get out 20 ml blood, assuming that clotting had occurred. I advised her to rest at home, adhering to the usual recommendation for soft tissue injuries by the acronym RICE (Rest-lce-Compression-Elevation).”
The claimant submitted that she suffered a “massive” haematoma which, though it partially subsided over many months, caused a discoloration which persists. The area covered by the haematoma in the 3 months during which it lasted was the size of a rugby ball (see paragraph 24 of the Claimant's Witness Statement). The area of discoloration which now remains is the size of an adult human hand. The expert has determined that the permanent disability resulting from this haematoma in 3% (see page 5 of the Expert Report). The Claimant submits that this discoloration amounts to a single disfiguring scar as described in the Judicial College Guidelines.
The claimant further submitted that the permanent scar to the arm covered an area of approximately 4cm x 4cm (approximately 1.57in x 1.57in). Accordingly, it fell to be considered as a single noticeable scar under the leg as described in the Judicial College Guidelines.
The claimant also submitted that the permanent scar to the shoulder covered an area of approximately 4cm x 2 cm (approximately 1.57in x 0.79in). Accordingly, it fell to be considered as a single noticeable scar as described in the Judicial College Guidelines.
The claimant posited that the soft tissue injury to her hips/pelvic area and the haematoma occasioned pain and suffering and a limp. Daily activities such as shopping, walking and even lying and sitting became difficult or painful.
The claimant further submitted that the suffering occasioned by the collision included anxiety. This anxiety manifested itself in flashbacks and nightmares which persisted for six (6) months and nervousness about outdoor running which persists even today. This is even more upsetting for the Claimant since running was a particular favourite pastime of hers before the event of February 2016.
The claimant also submitted that her distress shortly after the collision was noted at page 3 of the expert report. Further, at page 5 of the expert report, Dr Buring writes:
“The injury required a rehabilitation period that I estimate to 3–6 months.
My judgment is that there were two components to this: The large haematoma gradually resorbed within 3 months.
At the follow up visits it was obvious, that Ms. Williams suffered from posttraumatic psychological effects such as “flash backs” of the accident and she was not confident to resume her regular running exercises until about 6 months after the accident.”
The claimant posited that no sum of money can truly compensate for personal injury and the sense of humiliation meted out to her by a tortfeasor, but as far as money can compensate for pain and suffering for the physical injuries, in making a suitable award in damages to compensate the Claimant the Court should be guided by the principles laid down by Wooding CJ in Cornilliac v St. Louis (1965) 7 WIR 491 in its assessment of general damages. These are:
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(i) The nature and extent of the injuries suffered.
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(ii) The nature and gravity of the resulting physical injuries.
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(iii) The pain and suffering endured.
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(iv) The loss of amenities, (v) Future pecuniary loss.
The claimant posited that the pain occasioned by the injuries impacted her daily life and was affected by the collision. In summary:
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a. The claimant found daily activities such as walking, lying, and sitting to be difficult and painful. This persisted for 2–3 months;
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b. The claimant had a limp in her walk for 2–3 weeks;
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c. The claimant had to take painkillers every-day for at least 2 months;
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d. The claimant found dressing herself to be difficult;
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e. The claimant was unable to undertake simple duties such as shopping;
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f. The claimant could only sit with any comfort at an angle and for short periods only. This persisted for 2–3 months.
The claimant also posited that in the past the Eastern Caribbean Supreme Court has looked to the Judicial College Guidelines (“ the Guidelines”) used in England & Wales for an indication of what ranges are suitable for certain injuries. 1 The below passages reflect the areas of concern in this matter, namely
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a. injury to the leg;
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b. scarring
The claimant further posited that the Guidelines provide for ranges for injuries to the pelvis and hips at 7 (D). Under the heading “Lesser Injuries”; the Guidelines state, “(ii) Minor soft tissue injuries with complete recovery”. The range is up to £3,370 (up to 3,710 with 10% uplift).
The claimant submitted that the Guidelines give the following guidance for scars:
“10. SCARRING TO OTHER PARTS OF THE BODY
This is an area in which it is not possible to offer much useful guidance. The principles (including the approach to...
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