Geraldine Welsh v Joel Budd

• Jurisdiction: Grenada
• Judge: Actie, M.
• Judgment Date: 30 July 2018
• Judgment citation (vLex): [2018] ECSC J0730-2
• Court: Supreme Court (Grenada)
• Docket Number: CLAIM NO. GDHACV 2017/0235
• Date: 30 July 2018

[2018] ECSC J0730-2

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

IN THE HIGH COURT OF JUSTICE

CLAIM NO. GDHACV 2017/0235

Between:

Geraldine Welsh

Claimant

and

Joel Budd

Defendant

Appearances:

Ms. Sabina Gibbs for the Claimant

Ms. Avril Anande Trotman-Joseph with Ms Jodi-Ann Johnson for the Defendant

RULING ON ASSESSMENT OF DAMAGES

Actie, M.

1 On 20 ^th June 2011, a vehicle owned and driven by the defendant, while reversing, collided with the claimant. Judgment in default was entered against the defendant for special damages in the sum of $3,751.95 with general damages to be assessed. Before the court is the application for the assessment for damages.

General Damages

2 The claimant, a cleaner at the revenue office, seeks general damages in the sum of $150,000.00. General damages are usually determined taking into consideration the principles set out by Wooding CJ in the seminal case of Cornilliac v St Louis1 namely (1) The nature and extent of injuries suffered; (2) Nature and gravity of the resulting physical disability; (3) Pain and suffering endured; (4) Loss of Amenities; (5) Extent to which the claimant's pecuniary prospects have been affected.

3 The claimant, 52 years at the time of the accident, suffered an injury to her right wrist and right side of her hip. She was referred to the hospital where analgesics were prescribed with extended sick leave.

4 The claimant presented several medical reports to prove the nature and extent of her injuries:

• (i) 12 ^th August 2011 — Dr. Kester Dragon diagnosed the claimant as having sustained direct trauma, resulting in contusion of the right hip. The pain in her right wrist had subsided but she complained of pain in the right hip especially when getting up from a sitting position with shocking sensation in the right buttock.

• (ii) 10 ^th October 2012 — Dr. Linward Fleary assessed the claimant with bilateral mild osteoarthritis with small osteophytes posterior acetabular joint space narrowing worse on the right with degenerative changes to the hip.

• (iii) 28 ^th November 2012 — Dr. Kester Dragon reassessed the claimant on 5 ^th September 2012. The report noted that the claimant ambulated with an abnormal gait with tenderness on palpitation on the posterior over the gluteal region. An MRI report indicated degenerative changes in the hip joint which may have been incidental or secondary osteoarthritis as a result of the trauma on the hip.

• (iv) 12 ^th June 2017 — Dr. Kester Dragon opined that the pain experienced in the right hip could be as a result of the injury which she sustained from the accident. The report indicated that the claimant's condition had not worsened since the accident but was expected to improve. The report did

  not foresee future indication for surgery for the contusion of the claimant's right hip but she needed analgesics, especially after repetitive or vigorous physical activities. However, the pre-existing degenerative joint disease of both hips may require future surgical intervention.

5 An award of damages for pain and suffering and loss of amenities is incapable of exact estimation and an assessment must necessarily be a matter of degree based on the facts of each case. The court must strive for consistency by using comparative cases tailored to the specific facts of the individual case. The task of converting the one into the other to arrive at an award of general damages is necessarily artificial, and involves a value judgment. Lord Hope of Craighead in Wells v Wells2 states:

“The amount of the award to be made for pain, suffering and loss of amenity cannot be precisely calculated. All that can be done is to award such sum within the broad criterion of what is reasonable and in line with similar awards in comparable cases as represents the Court's basic estimate of the plaintiff's damage.”

6 The claimant referred the court to several authorities as comparatives to assist in making an appropriate award. The court notes that the injuries in the authorities cited were more severe with the injured, all hospitalized over a period of time, unlike the claimant. The court notes the decision in Mercedes Delplesche v Samuel Emmanual De Roche where the claimant, 54 years, suffered trauma to the head and left knee, abrasion to face, laceration to forehead and nose, bleeding to nostrils with scars to forehead and nose. She was admitted to hospital for four (4) days and upon discharge attended an outpatient clinic for physiotherapy sessions. In 2013 the court awarded the sum of $65,000.00 for pain and suffering and loss of amenities.

7 The defendant suggests an award in the sum of $7,500.00 and relies on the decision in Dexter James v M & A Soufriere Sightseeing Tours Ltd et al.3 In this case the claimant suffered tenderness in the right hip; 2cm superficial laceration in right heel with 1cm superficial laceration to the forehead. The claimant was examined and discharged the same day with sick leave. She was anticipated to regain full recovery within one or two weeks. In 2009, the court awarded the sum of $7,500.00. The defendant is of the view that the claimant in this present case should be awarded a similar award.

8 The claimant claimed an award under each of the heads listed in Cornilliac v St Louis. In an assessment of damages the practice is to grant a global sum taking into consideration the principles espoused by Wooding CJ in the seminal case. In Kathleen McNally v Eric Lotte and CITCO (BVI) Ltd, Rawlins J. stated:

“The practice is to grant a global sum for general damages for pain and suffering and loss of amenities, considering these against the background of the nature and extent of the injuries sustained and the nature and gravity of the resulting impairment and physical disability.”

9 The purpose of an award is to put the claimant in the position that she would have been if the accident had not happened. The court must award a fair and reasonable sum to compensate the claimant for the injuries suffered. It is the evidence that the claimant has...