Troy Barthelmy Claimant v John Neptune Defendant [ECSC]
| Jurisdiction | St Lucia |
| Judge | Taylor-Alexander, M |
| Judgment Date | 20 March 2014 |
| Judgment citation (vLex) | [2014] ECSC J0320-1 |
| Court | High Court (Saint Lucia) |
| Docket Number | CLAIM NO. SLUHCV2009/01 |
| Date | 20 March 2014 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. SLUHCV2009/01
Troy Barthelmy a watersports manager, scuba diver, instructor and trainer had his ambitions to excel in his field of endeavor, thwarted, when at 8:15 am on friday the 25th of January 2008, his motor vehicle was struck in a head on collision by a vehicle being driven by John Neptune. Judgment having been summarily entered for the claimant it is now beyond dispute that the accident was caused by the negligence of John Neptune.
The claimant lost consciousness for a few minutes as a result of the impact and when he came to, he realized that he could not move and that his right leg was badly damaged from the hip down and it had unnaturally twisted from left to right. He was in excruciating pain and was incapable of freeing himself from the damaged vehicle. Eventually the paramedics removed him from the vehicle all thewhile he drifted into and out of consciousness as his body tried coping with the intensity of the pain. The claimant states that even the drive to the hospital was traumatic for him as due to the extent of the damage and the intensity of the pain he felt, any sudden movements of the vehicle increased the intensity of the pain he felt.
He was attended to by Dr. Horatius Jeffers orthopedic surgeon whose report of the management of the claimant states that the claimant sustained a fracture of the posterior wall of the right acetabular (hip socket). He required open reduction and internal fixation of the right acetabular fracture with plate and screws. At the time of his report weeks after the accident Dr. Jeffers found the hip fracture to be healing satisfactorily although full and unrestricted employment activity was not recommended for a period of 8 months post injury.
The claimant was forced to undertake rehabilitative physiotherapy and required clinical evaluation to assess for residual impairment and to determine the degree of impairment on work and leisure activities. Dr. Jeffers found that while most persons are able to return to their pre injury employment, about 42% of persons involved in leisure activities, usually require leisure activity modification.
The claimant avers that the injury has had a severe impact on his recreational activities. He is an avid diver and has received frequent training to improve his skills in that regard. He is a certified diver and had become and instructor an trainer. Since the accident he is incapable of diving as he develops severe cramping in the hip area. He was constrained in his ability to play with his young son and twins for some time after they were born. He was unable to assist his wife who at the time was pregnant and who had gone into premature labour shortly after the accident. His sex life has been affected by the hip injury which has restricted his range of movements and he is constantly cramping which prevents him from reaching a climax. He avers that he was also an a keen sports person who jogged, played lawn tennis, table tennis, football, beach volleyball andbasketball. He is no longer able to carry on any sporting activity that involves running, jumping, kicking or bending. He claims to have suffered depression as a result of all that happened.
The claimant is entitled to be compensated for the injuries he sustained and the loss and damage occasioned him. The following are the awards made following the assessment of this court of the claimant's injury loss and damage, recoverable under heads of general and special damages.
Despite the proficiency with which the affidavit evidence and submissions on assessment were presented by the claimant's current counsel who was not the original counsel on record, this could not overcome the deficiencies of the manner in which the claim was initially pleaded with deficiencies in pleading and particularizing of the claimant's loss up to the date of the filing of the claim. In fact the claimant had only pleaded pecuniary loss of $4530.00 of which the sum of $1600.00 represented follow up medicals and $1050.00 was for other transportation expenses. In preparation for the hearing of the assessment of damages the claimant filed a number of affidavits, which in meticulous detail set out the pecuniary losses he in fact incurred together with loss of income each with supporting exhibits detailing his invoices and or receipts.
Unfortunately, unlike general damages where the law presumes the loss suffered to be the natural or probable consequence of the defendant's act, special damages are of a different species and those damages cannot be presumed to be the consequence of the defendant's act. It must therefore always be explicitly claimed on the pleadings and subsequently proven to be as a result of the defendant's conduct.1
The directions for the hearing of the assessment was given by this court on the 26th November 2012, directing the defendant to be served and inviting his response by affidavit and submissions in one month on the 24th December 2013. This was before SRO No. 3 of 2013. The date for the hearing of the assessment was fixed for the 16th January 2013 but was subsequently heard on the 6th March 2013. The defendant was in attendance he then having just under four months' notice of the hearing and the documents filed in support of assessment. The defendant was unrepresented at the hearing but was himself in attendance at the proceedings and was invited by the court to cross examine the claimant and to ask any questions or to seek clarification of the proceedings. The affidavits of the claimant filed, detailed an augmented claim for damages, to which no objection was taken.
In(1) Stephen Davis Whalley (2) Paul Whalley (3) Mary Elizabeth Ann Bingham v (1) PF Developments Ltd (2) Christine Thomason (2013) CA Civ (Unrep) Lewison L.J. in his dicta stated that where no prejudice had been caused to the defendants as they were on notice of the exact nature of the claim and knew the remedies sought, the statement ought to stand as a statement of loss without the need for any further amendments to the pleadings.
Judgment having been entered with damages to be determined and the defendant having had notice of the assessment and having had possession of the evidence and submissions in support of the assessment for well over four months he had been put on notice of the damages sought and the award he was to have contended with.
The claimant averred to have suffered the following losses proven by evidence on affidavit and verified by receipts. Otherwise, in relation to claims unaided by receipts I have concluded that these services were necessary and related to the injury suffered and for which a reasonable expense can be inferred.
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(a) Rental of bed and commode —$1,054.00
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(b) Costs of Surgery and treatment in January 2008 —$25,936.85. Costs of surgery in March 2012 —$7532.20
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(c) Costs of second medical report — $500.00
The claimant's evidence is that these particular expenses were met by his employer, and in reliance on the principle espoused inHunt v Severs [1994] 2 A.C. 350, the court is not entitled to discount the sums as these are adventitious benefits, which for policy reasons are not to be regarded as diminishing the claimant's loss. Although the principle is often relied on in cases regarding the provision of voluntary care services, it can similarly be extended to a case such as this as an exception to the principle of double recovery. I therefore allow these...
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