Ann Robertson v Attorney General

• Jurisdiction: Grenada
• Judge: MATHURIN, M,CHERYL MATHURIN,MASTER
• Judgment Date: 11 November 2010
• Judgment citation (vLex): [2010] ECSC J1111-1
• Court: High Court (Grenada)
• Docket Number: CLAIM NO.GDAHCV2009/0338
• Date: 11 November 2010

[2010] ECSC J1111-1

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

IN THE HIGH COURT OF JUSTICE

Before:

Master Cheryl Mathurin

CLAIM NO.GDAHCV2009/0338

Between:

Ann Robertson

Claimant

and

The Attorney General

Defendant

Appearances:

Ms Shireen Wilkinson for the Claimant

Ms Karen Samuel for the Defendant

ASSESSMENT OF DAMAGES

On written representations

MATHURIN, M

1 By consent on the 1^st March 2010, judgment was entered for the Claimant (Ms Robertson) against the Defendant (Attorney General) for damages to be assessed. The parties filed written representations to assist the Court with its determination and on the 13^th July 2010, the decision was reserved.

2 The basis of this matter is a very unfortunate incident in which Ms Robertson suffered severe injuries when Mr. James Walter, who was an employee of the Government at the time, caused Ms Robertson to be struck on the leg with the Heavy Duty Roller he was driving at the time. At thetime of the incident Ms Robertson was 70 years old. On examination, it was revealed that she had a deep extensive wound with irregular edges on the medial aspect of her left leg with exposure of bone. X-Rays subsequently revealed that she had an open fracture of the left fibula and tibia as well as abrasion on the same leg.

Special Damages

4 On the authority ofHayward and another v Pullinger & Partners Ltd (1950) 1 KBD 581 and Ilkiw v Samuels (1963) 1 WLR 991 it is established that special damages which are generally capable of exact calculation have to be specifically pleaded and proven. A quotation of Diplock J in Ilkew v Samuels (supra) is ample support for this proposition.

"Special damage in the sense of a monetary loss which the plaintiff has sustained up to the date of trial must be pleaded and particularized…it is plain law…that one can recover in an action only special damage which has been pleaded, and, of course, proved."

Further,McGregor on Damages 16^th edition (2003) paragraph 43–006 states as follows;

"Where the precise amount of a particular item of damage has become clear before the trial, either because it has already occurred and so becomes crystallized or because it can become measured with complete accuracy, this exact loss must be pleaded as special damage"

5 Ms Robertson in her statement of claim has sought special damages in the sum of $789.00 as the cost of medication, x-rays, the medical report and transportation. Counsel for the Defendant challenges this amount on the basis that she has provided no evidence of these expenses other than allegations in the Statement of Claim and her subsequent affidavits dated the 18^th and 20^th June 2010 which were filed in support of this assessment. However based on the medical report which establishes that she was medicated, that x-rays were done and that she had to visit the hospital on more than one occasion, I am able to find that the probability existed that some loss resulted and on this basis and not finding the amounts claim unreasonable, I award the Ms. Robertson the sum of $789.00 accordingly. This method was found acceptable by Bernard CJ in the case of GRANT v MOTILAL LOONAN LIMITED (1988) 43 W.I.R. 372.

6 In the affidavits in support of this assessment, Ms Robertson has also alleged further expenses to the tune of $30,646.42. These expenses she states were incurred subsequent to the filing of the Claim in August 2009. She alleges that because of the injury, she went to Canada for further treatment and was hospitalized in September 2009 for another operation on her leg. This is unsubstantiated by any medical evidence or proof that she was hospitalized for the injury established. This claim was filed on the 4^th August 2009 and that it could have been amended to reflect further special damages incurred in September and October 2009 is evident from the fact that the Parties only entered a consent judgment on liability on the 1^st March 2010. It is clear that expenses incurred after filing of a claim will not be considered as special damages unless the pleadings are amended accordingly. In the circumstances, I am unable to make any further award under the head of special damages and this amount is accordingly refused.

General Damages

7 As far as General Damages are concerned Counsel have both set out the factors to be considered by the Court on assessment based on the decisionCornillac v St. Louis (1965) 7 WIR 491. These factors are the nature and extent of the injuries sustained the nature and gravity of the resulting physical disability, the pain and suffering which had to be endured, the loss of amenities suffered, and the extent to which...