Leanne Forbes Appellant v Ulbana Morillo Respondent
| Jurisdiction | British Virgin Islands |
| Judge | ALLEYNE, C.J. [Ag.] |
| Judgment Date | 20 February 2006 |
| Neutral Citation | VG 2006 CA 4,[2006] ECSC J0220-5 |
| Court | Court of Appeal (British Virgin Islands) |
| Docket Number | CIVIL APPEAL NO. 8 OF 2005 |
| Date | 20 February 2006 |
IN THE COURT OF APPEAL
The Hon. Brian Alleyne S.C. Chief Justice [Ag.]
The Hon. Hugh Rawlins Justice of Appeal
The Hon. Indra Hariprashad-Charles Justice of Appeal [Ag.]
CIVIL APPEAL NO. 8 OF 2005
Mrs. Lorna Shelly-Williams for the Appellant
Mr. John Carrington for the Respondent
On the 3 rd December 2001 the respondent Ulbana Morillo was a passenger riding in the back seat of a car, number PV0330, on the Francis Drake Highway, Tortola. That car came to a stop in a line of traffic, when car number PV7777, driven by Leanne Forbes, the appellant, collided with the back of car number PV0330, causing the said car to collide with a third car stopped in the line of stationary traffic ahead of it.
Ms. Morillo was not wearing a seat belt. She lost consciousness as a result of the collision, and suffered injuries described as contusions to the head, neck, upper back, right knee, and ankle. There was tenderness in the right knee and ankle and in the costo-chondral joint of the chest, inflammation in the left shoulder, biceps, tendon and rotator cuff. She had muscle spasms in her cervical, thoracic and lumbo-sacral spine, numbness in the upper left extremity, par aesthesia and pain. She was suffering from a posterior subligamentous disc protrusion at the L5S1 level associated with radial annulus tear posteriorly and adhesive capuliitis of her left shoulder, and she complained of hearing loss in her left ear. She will require intermittent oral, intra-muscular and intra-articular medications and continuous physical therapy. Her prognosis was fair to poor, and her overall impairment as a result of her injuries was assessed at 19% whole body impairment.
The doctor's opinion was that Ms. Morillo would have suffered progressive dull aching pain that would increase in intensity to be stabbing, excruciating and incapacitating. She was of the opinion that as a result of the injuries Ms. Morillo would have difficulty in doing overhead activities and reaching outwards with her left shoulder joint. Her ability to do homemaking activities, dressing, grooming, prolonged sitting and standing, ambulation and job-related chores would all be affected.
Ms. Morillo complained that she suffered severe pain for about two months, and after some months of therapy she was able to move her neck again, but with pain. She had to wear a cervical collar for 5 months. She experienced occasional dizziness and imbalance, and tingling of her tongue. She takes medication every day to manage the pain in her neck, left shoulder and upper back, and her right knee and ankle hurt occasionally.
She says she has severe pain in her left shoulder, upper back and neck every day. She has lost hearing in the left ear, in which she also suffers periodic pain.
Ms. Murillo is employed as a caregiver to a blind, diabetic person. As a result of her injuries she is unable to perform many of the activities involved in her employment. She cannot raise or extend her left arm, lift moderately heavy objects, or do certain types of housework, such as mopping, and can only do others, such as dishwashing, with difficulty. She cannot sit or stand for long periods, and her employer, with whom she has been employed for about four years, has kept her on as a supervisor, employing another person to perform some of the functions formerly performed by her.
The appellant admitted liability at the commencement of the trial, and the issue at trial was limited to quantum. After considering the evidence and the authorities relied upon by both sides, the learned trial judge awarded damages for injuries, pain and suffering and loss of amenities in the sum of $40,000.00. He awarded the respondent the sum of $30,000.00 in respect of loss of earning capacity, and $66,250.50 for cost of future medical care including medication and procedures. He awarded as special damages the sum of $9,344.79 for loss of income and medical expenses, interest on the award for pain and suffering and loss of amenities at the rate of 5% per annum for 2 years, and interest on the award in respect of loss of income and medical expenses at the rate of 2.5% per annum for 2 years. The learned trial judge declined to reduce the award of damages for contributory negligence arising from the admitted failure of the respondent to be wearing seat belts on the occasion of the collision.
The appellant has appealed against the award for future medical expenses, in so far as this award relates to the global sum of $20,000.00 for the costs of treatments set out in paragraph 37 of the judgment. In her skeleton arguments learned counsel indicated that the sum of $4,100.00 was accounted for by medical bills, with the result that the sum in issue is actually $15,900.00. She has also appealed against the finding of fact that the respondent may lose her job and the consequential award of $30,000.00 for loss of earning capacity. Further, the appellant has appealed against the award of $40,000.00 for pain and suffering, which she argues is excessive having regard to the nature of the injuries sustained. The appeal also challenges the learned judge's finding against the claim of contributory negligence.
The basis of the appellant's objection to the award for future medical expenses at the trial was that the witness Dr. Alicea was not a specialist in the areas of medicine within which the particular treatments fall. Counsel contended that the referrals to the specialists had not occurred, and there is no evidence otherwise that these treatments are necessary.
Dr Alicea is a Diplomate of the American Board of Physical Medicine and Rehabilitation and a Fellow of the American Academy of Physical Medicine and Rehabilitation. She completed her specialty Board in Physical Medicine and Rehabilitation in 1993, and was re-certified in 2003. She provided a witness statement and was examined and cross-examined at trial. In her examination in chief, the doctor spoke to the respondent's loss of motion in the shoulder joint for all movements, and opined that the manipulation under anesthesia would have to be done by a sub-specialist. She explained in some detail the steps which an orthopedic surgeon would take to remedy the situation, and her estimate of the cost involved. There were a number of elements of cost to which the doctor was unable to put a figure. Indeed she did not venture an opinion on the cost.
Doctor Alicea, in her witness statement at page 26 of the record, states categorically that the respondent will require continuous physical therapy. She recommends this therapy for the rest of her life. She recommends referral to determine whether the respondent is a possible candidate for a neuro-epidermal nerve block, orthopedic consultations to determine whether her left shoulder joint should be manipulated under surgery, and neuro-surgery services to see if she is a candidate for decompression of the L5-S1 disc in the future. Her prognosis was fair to poor. She explained what she meant by a prognosis of fair to poor. In either case, further medical treatment and evaluation would be likely to be necessary.
Clearly her recommendations for referral and further evaluation were not casual and were based on her expert evaluation, well within her field of expertise, but recognising that the further evaluation was beyond her personal expertise. The learned trial judge so found at paragraph 36 of his judgment. He commented on the absence of contrary expert evidence, and concluded that there was reliable expert evidence that led him to conclude that it is distinctly more probable than not that the procedures were necessary. I see no reason to differ.
In the absence of evidence of the costs of the various treatments which the learned trial judge found would be necessary, he relied on the case of Greer v Alstons Engineering Sales and Services Ltd. 1 to make an award of a nominal amount of $20,000.00 including the sum of $4,100.00 to which no objection is taken. In Greer, a Privy Council appeal from the Court of Appeal of Trinidad and Tobago, Sir Andrew Leggatt, who delivered the opinion of the Court, quoted with approval from McGregor on Damages 2:
"Nominal damages may also be awarded where the fact of a loss is shown but the necessary evidence as to its amount is not given. This is only a subsidiary situation, but it is important to distinguish it from the usual case of nominal damages awarded where there is a technical liability but no loss. In the present case the problem is simply one of proof, not of absence of loss, but of absence of evidence of the amount of loss."
At paragraph 9 of their Lordships' opinion, Sir Andrew Leggatt spoke of the duty of the court to 'recognise (the loss) by an award that is not out of scale.' In this case the learned trial judge got a sense of scale from the case of Dawson v Claxton 3, a decision of this court emanating from the British Virgin Islands.
Learned counsel for the appellant submitted that this case is distinguishable from Greer, in that there is no evidence that the respondent will require future medical procedures. I do not agree. In my view, the learned trial judge was entirely justified in accepting Dr. Alicea's prognosis and expert opinion as to the need for future evaluation and medical intervention. This ground of appeal is dismissed.
Learned counsel for the appellant submitted that no award should be made for loss of earning capacity. Counsel submitted that the applicable test is whether there is a risk that the claimant may lose her employment at some time in the future and may then, as a result of her injury, be at a disadvantage in obtaining other or equally well-paid employment. Counsel cited in support the dictum...
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Claudette Francis Appellant v Cecilia Martin Respondent
...yardstick for prospective medical expenses 5. 19 We think that the correct approach is that taken by Barrow J (as he then was) in Ulban Morillo v Leanne Forbes 6. The court must select a figure which falls realistically within the scale of the prospective loss. In her written submissions on......