Aubrey Smith Claimant v Calvert Fleming 1st Defendant Alvin White 2nd Defendant [ECSC]
| Jurisdiction | Anguilla |
| Judge | BLENMAN, J,Louise Esther Blenman |
| Judgment Date | 20 November 2011 |
| Judgment citation (vLex) | [2011] ECSC J0527-1 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
| Docket Number | CLAIM NO.AXAHCV0050/2008 |
| Date | 20 November 2011 |
IN THE HIGH COURT OF JUSTICE
The Hon. Madame Justice Louise Blenman
CLAIM NO.AXAHCV0050/2008
Ms. Paulette Harrigan for the Claimant
Ms. Cora Richardson-Hodge and Ms. Sherma Blaize for the Defendant
This is a claim for the assessment of damages by Mr. Aubrey Smith against Mr. Calvert Fleming in circumstances where Mr. Fleming has accepted liability for the damage and loss that were sustained by Mr. Smith as a result of a vehicular accident.
On 27 th May 2006, Mr. Aubrey Smith sustained injuries in a vehicular accident when he was driving Hyundai Taxi Registration No. A366H along George Hill main road in Anguilla; and motor truck Registration No. A1656 driven by Mr. Alvin White struck Mr. Smith's vehicle. At the time of the accident, Mr. White was the servant or agent of Mr. Fleming.
Mr. Smith was of 57 years old at the time of the accident. He was employed on a contract and was also self-employed, while earning his living as a taxi driver. As a consequence of the accident, Mr. Smith alleges that he suffered personal injuries, damage to his vehicle and loss of earnings; he also incurred medical expenses. Mr. Smith also says that he continues to suffer much pain and can no longer enjoy the amenities of life. He complains that as a result of the injuries, he was first forced to reduce his hours of work and after corrective surgery he is unable to work. He has claimed various sums of monies as compensation for the loss and damages that he has suffered.
Mr. Gill was appointed the court's Expert and provided the court with expert evidence. He subsequently became the attending surgeon who performed the operation on Mr. Smith. This was unbeknownst to the court.
Mr. Fleming having conceded the issue of liability, the sole issue to be resolved is the quantum of damages that should be awarded to Mr. Smith. Mr. Fleming takes issue with the quantum of damages claimed by Mr. Smith; he does not dispute that Mr. Smith is entitled to be compensated for the loss and injuries which he has suffered but is adamant that Mr. Smith's claim is over exaggerated.
Mr. Smith provided the court with a witness statement and he was cross-examined at length by learned Counsel Mrs. Cora Richardson-Hodge. Mr. Fleming did not lead any evidence in the claim for assessment.
Mr. John Gill who is a neurosurgeon provided the court and the parties with his expert reports that were dated 19 th October 2009 and 18 th October 2010, together with an erratum dated 19 th October, 2010. He also provided the court with oral testimony and was cross—examined by both learned Counsel Ms. Paulette Harrigan and learned Counsel Mrs. Cora Richardson-Hodge.
Ms. Kaelen Richardson who is the Dispatching Supervisor of the Taxi Service was summoned by the court and she attended and provided the court with the details of the dispatching records for Blowing Point during the period of January 2006 to the present date, together with the taxi dispatching records for the Airport during the period July 2007 to current.
Addressing the issue of special damages, learned Counsel Mrs. Cora Richardson-Hodge said that the documentary evidence supporting these special damages has been agreed by the parties. Mr. Fleming has not produced any evidence disputing the special damages which has been put forward by Mr. Smith. Both Mr. Gill and Mr. Smith gave oral evidence that Mr. Smith had undergone spinal surgery on 21st June 2010. (In relation to the costs, the court is invited to take judicial notice of the fact that the exchange rate between the Barbadian Dollar and the United States Dollar is 2:1). Mr. Smith provided evidence of the costs he has incurred.
However, in cross-examination, Mr. Smith stated that food costs were not included in the above total, but he estimated that it would be much less than US$3,000.00. Mrs. Richardson-Hodge submitted that an award of US$954.87 for food is reasonable, for a grand total of US$15,000.00 (EC$40,323.00) as compensation for expenses incurred by Mr. Smith in relation to the costs of the spinal operation.
Learned Counsel Mrs. Richardson-Hodge said that the general principle is that damages are assessed as at the date of trial. The factors to be taken into account in assessing damages are set out in Cornilliac v St. Louis (1964) 7 WIR 491: (i) the nature and extent of injuries sustained; (ii) the nature and gravity of the resulting physical disability; (iii) the pain and suffering endured; (iv) the loss of amenities; and (v) the impact on the claimant's pecuniary prospects.
Learned Counsel Mrs. Richardson-Hodge referred the court to a number of authorities in seeking to persuade the court as to the quantum of damages that should be awarded. In Cecilia Hatchet v First Caribbean International Bank et al, the High Court in the British Virgin Islands awarded Ms. Hatchet, who was 40 years old at the time of the accident and 46 years old at the time of the hearing, US$20,000.00 (EC$54,000.00) for pain and suffering and loss of amenities in a case in which she suffered from degenerative disc disease at L5-S1 with herniation.
In Gloria Lake v Antigua Commercial Bank, the High Court in Antigua and Barbuda awarded Ms. Lake, who was 58 years old at the time of trial, EC$100,000.00 for pain and suffering and loss of amenities in a case where she suffered injuries to her back as a result of walking into a puddle of water and falling. She underwent surgery and obtained some relief but still experienced severe pain and her amenities were affected.
In Oscar Frederick v Liat Limited, the High Court in Antigua and Barbuda awarded Mr. Frederick who was 59 years old at the time of filing of the action in 2007, EC$80,000.00 for pain and suffering and loss of amenities in a case where he suffered back injuries as a result of a fall at his work place. He underwent surgery to his back but still suffered as a result of the injuries.
Mrs. Richardson-Hodge urged the court to award Mr. Smith EC$80,000.00 for pain and suffering and loss of amenities, with a forty percent reduction, based on the evidence that he had a prevailing condition at the time of the accident that contributed to the pain and suffering he experienced after the accident.
Mrs. Richardson-Hodge said that this head of damage referred to as future loss of earnings is meant to compensate Mr. Smith for the loss of money which he would have earned as salary during his normal working life had the accident not occurred. The future loss of earnings is in relation to Mr. Smith's job as a taxi driver since there is no evidence before the court that he earned any monies as a result of working as a plumber.
In relation to the appropriate multiplier to be utilized, Mrs. Richardson-Hodge referred the court to Gloria Lake's case. Ms. Lake was 58 years old at the time of the accident, the court, having considered the various authorities and relevant principles, was of the view that a multiplier of 4 was applicable to Ms. Lake given the fact that she was 58 years old and had a working life up to 65, this was in effect seven years which the court reduced to cater for the imponderables and vicissitudes of life.
Mrs. Richardson-Hodge said that in the case at bar, Mr. Smith was 57 years of age at the time of the motor vehicle accident (the accident occurred on 27th May 2006 and Mr. Smith turned 58 years old on 9th October 2006), Mr. Smith in his evidence stated that he always intended to work until the age of 65. Learned Counsel Mrs. Richardson-Hodge submitted that in the present case the court ought to apply a multiplier of 4, as is consistent with the Gloria Lake case.
Mrs. Richardson-Hodge stated that based on the medical evidence, Mr. Smith will not be able to work again as a taxi driver. Mr. Smith does, however, continue to earn monies as a result of his subcontracting work to other taxi drivers in order to fulfill his contract with Classic Customs Vacations. He has put before the ourt evidence of his earnings, in 2006, from Classic Customs Vacations. Mr. Smith acknowledged on cross-examination, however, that there was a world-wide economic downturn and that his income as a taxi driver was directly impacted by the decrease of tourist arrivals to Anguilla. Mrs. Richardson-Hodge presented to him figures for the period 1993 to 2007 and 2009 to 2010 from the Anguilla Statistics Department, which verified that the number of tourist arrivals between 2007 and 2010 dropped to pre-2004 levels. Mr. Smith acknowledged that the number of tourist arrivals through Classic Customs Vacations had decreased, but he did not produce this information to the court.
Mr. Smith further stated on cross-examination that he had continued to work with Classic Customs Vacations since the date of the accident and up to the date of trial. When questioned, Mr. Smith stated that during the times he was unable to work, he would have other taxi drivers collect his passengers for a fee. He stated that he would be reimbursed that fee from Classic Customs Vacations. Mr. Smith further stated that he still maintains the contract with Customs Vacations and there is no evidence on which it can be concluded that he has suffered loss of salary on the contract work.
In his witness statement, Mr. Smith claimed that he earned monies from freelance work in four ways; (i) developing a relationship with passengers at port of entry; (ii) referrals from existing customers and local persons/businesses; (iii) repeat visitors to the island; and (iv) queuing up with other taxi drivers at the ports,...
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