Ludell Leonard an Infant by Joshua Leonard his father and next friend Plaintiff/Appellant v Winfield Forbes Dennis Forbes Defendants/Respondents
| Jurisdiction | British Virgin Islands |
| Judge | LEWIS, C.J.,(P. Cecil Lewis),GORDON J.A.,(K. L. Gordon) |
| Judgment Date | 26 March 1971 |
| Neutral Citation | VG 1971 CA 3 |
| Judgment citation (vLex) | [1971] ECSC J0326-1 |
| Court | Court of Appeal (British Virgin Islands) |
| Docket Number | Civil Appeal No.2 of 1970 |
| Date | 26 March 1971 |
IN THE COURT OF APPEAL
The Honourable the Chief Justice
The Honourable Mr. Justice Gordon
The Honourable Mr. Justice P. Cecil Lewis
Civil Appeal No.2 of 1970
and
C.E. Hewlett for the Appellant
McW. Todman for the Respondents
In this case the appellant complains of the inadequacy of the amount of damages awarded to him for injuries and loss suffered by him as a result of the negligent driving of the first respondent, an employee of the second respondent. In the accident which occurred on the 31st October, 1966, the appellant's skull and ribs were fractured and his brain and nerve tracts were permanently damages so that he is now a spastic. He also suffered damage to his teeth. He has been a patient in hospital ever since. He was deeply unconscious for about five months. Thereafter he showed continuous Improvement and was eventually sent to a rehabilitation centre in Jamaica where he received extensive physiotherapy and speech therapy. His speech is still difficult and at times incomprehensible. Since his return from Jamaica in April 1969 there has been no further improvement In his condition.
The judge's award of $3,118.32 for special damages took account only of expenses incurred by the appellant in obtaining medical treatment in Tortola and Jamaica. He assessed the general damages at $5,000.
With respect to the assessment of special damages the appellant complains that no award was made in respect of loss of earnings for the period of 4 years between the date of the accident and the date of the trial. With respect to general damages he alleges that the amount awarded is grossly inadequate.
I shall deal first with the special damages. The rule is that a plaintiff is entitled to recover such earnings as he can prove he has lost by being prevented from following his ordinary vocation owing to his injuries. In this case the appellant was a casual employee who had recently left school. He worked "now and then", to use his own words, with one Smith as a loader on a truck, earning $4.00 per day. On the day of the accident he was working as a labourer on the respondents' vehicle doing an odd job for which he would have been paid $2.00. No evidence was given as to his average weekly or fortnightly earnings upon the basis of which the trial judge could make a fair and reasonable assessment of the amount of his loss during the four years between the accident and the trial. Doubtless the appellant, had he not suffered these injuries, would have earned wages which he has lost, but he has not discharged the onus which lay upon him of proving the amount of the loss which he had in fact sustained. In my view this Court cannot interfere with the learned judge's assessment of the special damages and this ground of appeal falls.
With respect to general damages, learned counsel for the appellant contended (1) that the trial judge erred in principle in not taking into account the loss of prospective earnings and (2) that in any event the sum awarded was wholly inadequate. On the first ground he referred to the case of Cornilliac v. St. Louis (1965) 7 W.I.R.491, a decision of the Court of Appeal of Trinidad and Tobago in which Wooding, C.J. stated the various factors which a judge should bear in mind when assessing general damages resulting from personal injuries. Although the trial judge did not specifically mention the various heads as set out in Wooding C.J.'s judgment, his evaluation of the evidence indicates that he took account of them. He particularly states that the appellant was a casual employee with a low income, that there is no chance of his leading a normal life, and that he would need constant care as he could not look after himself. The conclusion to be drawn from these findings must be that for the rest of his life he would be unable to work and that his loss of future earnings must be assessed on the basis of a low income.
I do not think that it has been established that the learned judge overlooked any relevant factor and thus erred in principle, but I agree that his assessment of the general damages is inordinately low and entirely erroneous.
The learned judge found that "although the plaintiff according to the medical evidence did not suffer pain yet he was very seriously injured and has suffered a loss of all the amenities of life." I have already referred to the appellant's spastic condition. No regeneration of the nerves is expected. The appellant is aware that his prospects for the future are hopeless, for he said in his evidence "I am in the hospital for I was licked out of this world. I thought I was dead." According to the medical evidence he is mentally alert and willing but cannot do what he wants to do because of the brain damage. His frustration must be well nigh intolerable. He has no sense of balance when standing. He was trained by his father, a sea captain, to sail a boat, but will never be able to enjoy the pleasures of sailing. He used to play cricket and drive a car, but now be cannot even walk without assistance.
The medical evidence establishes that the appellant's expectation of life has not been shortened. At the age of 19 he must therefore look forward to a broken barren life beset with frustrations. His utter dependence upon the care of others must add to his distress and anxiety.
A plaintiff in the position of the appellant is entitled to reasonable compensation not only for the severe physical injuries he has sustained but also in respect of "the grave and sombre deprivations" which he will suffer throughout his life. Recent decisions in the United Kingdom and the Caribbean confirm the view that where, as the trial judge found, the plaintiff has suffered a loss of all the amenities of life, substantial compensation should be awarded, and the more so where the plaintiff has a long expectation of life and is able to appreciate his condition. See Wise v Kaye (1962) 1 Q.B.638; H.West and Son Ltd. v Shephard (1964) A.C.326; and Aziz Ahamad v Reghubar (1967) 12 W.I.R. 352.
In this case an award must also be made to meet the special need to provide continuous care for the appellant over a long period.
Finally, the appellant, though a casual worker, has been forever deprived of the opportunity to earn his wages, however small, and to improve his earning capacity in employment on land or at sea. Sparse though the evidence is, the Court must endeavour to assess the value of the earnings he will lose.
Taking all relevant factors info account, and having regard to awards which have been made in cases bearing some similarity to this in the United Kingdom and the Caribbean, I consider that an appropriate figure for general damages is $37,000.
I would therefore allow the appeal, and order that judgment be entered for the appellant for $40,118.32 with costs.
This is an appeal against an order of a judge of the High Court dated October 16th, 1970, awarding the appellant the sum of $5,000 general damages and $3,118.32 special damages and costs in an action brought by the appellant to recover compensation for personal injuries and loss caused by the negligent driving of the first-named respondent who, it is stated, was the servant of the second-named respondent. In his statement of claim the appellant alleged that he was travelling as a passenger in a vehicle on the 31st day of October, 1966, when it got out of control, ran off the road, and overturned causing him to sustain certain injuries.
In the defence, a short document of three paragraphs, it was admitted that the first-named respondent was the driver of the vehicle at the material time and the second-named respondent was its owner. In paragraph 3 it was asserted as follows:
"Save as hereinbefore expressly admitted the defendants(respondents) deny each and every allegation in the statement of claim in like manner as if the same were herein set forth and traversed seriatim."
Despite this denial of liability, when the action came on for hearing it was agreed between the parties that the only issue for the determination of the Court was the quantum of damages. The trial judge awarded the sums which I have mentioned, but the appellant being dissatisfied with these amounts appealed therefrom on the sole ground that "the general damages awarded are grossly inadequate."
At the hearing of the appeal counsel for the appellant sought leave to strike out the word "general" in his ground of appeal so as to enable him to challenge the adequacy of both the general and special damages, but he gave no notice to counsel for the respondents of his intention to make this application. However the respondents' counsel did not object to the application and the Court gave leave for the amendment to be made.
The evidence called in support of the appellant's case was largely unchallenged. His father stated that at the date of the trial he was about 19 years old, and the trial judge found that he was about 15 when he received his injuries. The…….. appellant who gave evidence on his own behalf stated that he worked now and then with Alpheus and Leo Smith and that on such occasions he received a wage of $4.00 per day. He had been employed on the day of the accident by the second-named respondent to assist him in putting a calf on the truck. This respondent said that he knew that the appellant used to be employed by one Antonio Smith as a loader on his truck, but sometimes Antonio did not "have any work to do".
The trial judge found that the appellant was a casual employee with a low income and this finding has not been challenged by the appellant.
The appellant's injuries were of a most serious nature. According to the evidence of Dr....
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