[2015]JMSGCiv

IN THESUPREME
COURTOF JUDICATURE
OF JAMAICA
cLAfM NO 2010HCV03779
BETWEEN JANETSTEWART.EARLE

CLAIMANT

AN D

DEFENDANT

JAMAICAURBANTRANSITCOMPANYLTD

Mr. DavidHenryinstructedby Ms. winsome Marshfor the claimant

Mr. Andre Wedderburninstructed by Dorothy Lightbourneand Hamiltonfor the
defendant
HEARD:1Oth
February,
2005and

Dunbar-Green
J (Ag)
The Claim
!

The claimant,
JanetStewart-Earle,
claimsagainstthe defendant,
I1l
JamaicaUrban
TransitCompanyLtd (JUTC),in negligenceand/orbreachof statutoryduty to recover
damagesfor injuriesallegedly
causedto her on Sunday16thDecember,2007
as she
travelledon a JUTCbusfromHalfWayTreeto Havendale
in St. Andrew.
of negligence
are as follows:
121 The particulars
(a)drivingat an excessive
and/or improper
speed;
(b)failingto keepanyor anyproperlookout;
(c) failingto take any or any reasonableor propercare to ensurethat the
Claimant
wouldbe safewhilstbeinga passenger
in thesaidmotorbus;

(d) drivingwithoutdue care and attentionand withoutany or any adequate

regardfor the passengers
includingthe Claimant;
(e) failingto heedandlorobservethe presenceor disembark
the motorbus;
(f) drivingin an unsafemannerancjfailingto exerciseandlormaintainany or any \
propereffectivecontroloverthe motorbus;
(g) executingor attemptingto executea manoeuvreat a timewhen,at a place
where and in a mannerin which it was.manifestlyunsafeso to do thereby
causingthe Claimant
to fallandsustaininjuries;
(h) in the circumstances,
failingto dischargethe commonduty of care of the
Claimantin breachof the saidAct;
(i) failingto stop, slow down and/orothdrwisemanageand/orcontrolthe said
';
motorvehicleso as to avoidthe saidfall.
t

I3l

The Claimantalsorelieson res ipsaloquitur;

l4l

Particulars
of injuriesare set out below:
(a) blunttraumato leftbuttockand leftthigh;

(b) bruisingon the lateralaspectof the leftthigh;

(c) difficultyweightbearingand sittingdown;
(d) tenderness
on palpationoverthe coccyx;
(e) fractureof the,coccyx;
(f) lowerbackstrain;
(g) lowerbackpainradiating
to the leftleg;
(h) posteriordisplacement
by the terminalsegmentof the coccyx;
(i) posttraumaticosteoarthritis;

(d) drivingwithoutdue care and attentionand withoutany or any adequate

regardfor the passengers
including
the Claimant;
(e) failingto heedand/orobservethe presenceor disembark
the motorbus;
(f) drivingin an unsafemannerand failingto exerciseand/ormaintainany or any \
propereffectivecontroloverthe motorbus;
(g) executingor attemptingto executea manoeuvreat a time when,at a place
where and in a mannerin which it was manifestlyunsafeso to do thereby
causingtheClaimant
to fallandsustaininjuries;
(h) in the circumstances,
failingto dischargethe commonduty of care of the
Claimantin breachof the saidAct;
(i) failingto stop,slow down and/orotherwisemanageand/orcontrolthe said
motorvehicleso as to avoidthe saidfall.
t3l

The Claimantalsorelieson res ipsaloquitur.

t4l

Particulars
of injuriesare set out below:
(a) blunttraumato leftbuttockand leftthigh;

(b) bruisingon the lateralaspectof the leftthigh;

(c) difficulty
weightbearingand sittingdown;
(d)tenderness
on palpationoverthe coccyx;
(e) fractureof tho,coccyx;
(f) lowerbackstrain;
(g) lowerbackpainradiating
to the leftleg;
(h) posteriordisplacement
by the terminalsegmentof the coccyx;
(i) posttraumaticosteoarthritis;

and
fi) futurehip replacement;
(k) 8/' wholepersondisability
and 15%wholepersondisability
if hip replacement
is required.
l5l

The specialdamagesagreedare as follows:

(a) medicalexpensesof 9248,769.53;
.:
(b) transportation
of 985,000;

(a)lossof incomeof g787,000.00

andcontinuing;
(b) futuremedicalcare
(c) handicapon the labourmarket

The AmendedDefence
16l The court allowedthe amendeddefenceto stand althoughit breachedthe
Statuteof Limitationson the basisthatit disclosedno newcauseof actionor any new
matter.
The defendantadmitsthat the dlaimantwas a passengeron the bus and thatan
t7l
incidentoccurredinvolvingthe defendant'smotorbuson the 16thDecember,2007.
However,the defendantdeniesthatits driver/servant
and/oragentis liableas allegedor
in negligence.The defendantstates that the incidentwas causedsolelyor in the
alternative
contributed
to by the negligence
of theclaimant.
t8l

By consent,the followingdocuments
wereadmittedintoevidence:
Exhibit| - Medicalreportof Dr. RoryDixondatedMarch3. 200g.
Exhibitll - Medicalreportof Dr.JamesPeart- datedFebruary14,200g.

!
j

Exhibitlll * Medicalreportof Dr. RoryDixondatedMay 1

, za1|.
ExhibitlV - Medicarreportof Dr.crarkeLofterdatedseptembe
r T, 2011.
ExhibitV - Medicalreportof Dr. MarkMinottdated22nd
November2014,
ExhibitVl - Medicalreportof Dr. RoryDixondatedFebruary
s, 201s.
ExhibitVlf - Receiptsfor medicalexpenses(gS).
ExhibitVlll - Receiptsfor transportation
(g2).
ExhibitfX - Letterof employment
fromAutumaGold,Adult
care dated
November
7.

,:

ExhibitX - Letterof emproyment

datedNovember.
19,2014
ExhibitXl - LetterfromDr.sandrachambersdatedFebruaryg,
201s

Statementof lssues
This courtwill haveto determinewhetherthe defendant
l9l
oweda duty of care to
the claimantas a passenger;and if so, whetherthere
was breachof that duty and
whether.harm
wasforeseeable.
t10l whetherthe doctrineof,res ipsaloquitorappries.
t11l whethertheclaimant
wasthe authorof herowninjuries
or contributed
to them.
112) The natureand extentof the craimant's
injuries.
t13l The quantumof damages,if any,to be awardedto the ctaimants.
Statementof Facts
t14l The claimant'switnessstatementfiled 26thseptember,2014
was orderedto
standas evidencein chief.

[15] Her statementrevealsthat at the time of the incident,she workedas a practical

nurse in Jamaicaat AutumnGold Adult Care NursingHome
at 32 park Avenue,
Havendale,
St. Andrew.lt was whileon her way to workon the 16thDecember,2oOT,
thatthisunfortunate
set of circumstances.unfolded.
116l Accordingto the ctaimantshe boardeda number44 bus in Half Way Tree
sometimeafter 5 pm. Whilst on Swallowfield
Avenue,in Havendale,she rang the
passengerbell and stood in preparationto alight.
She held on to the overhead
passengerrailwithher righthandandwiththe leftheld
on to the backof the seat,which
was directlyin frontof her.In her lefthand,she carrieda smallgift
bagwhichcontained
herdinner.she alsocarrieda bagwhichwas hungoverthe rifnt
snoutder.
t17l At the intersection
of Parkand Swallowfield
Avenues,therewas a hugepothole.
The bus swungaroundthe potholecausingher to fall between
the seats,hittingvarious
partsof the bodyas she fellto the floor.
the mannerof driving,
[18] In describing
shesaid:

The swerueof the busaround thepothole was so violent

that my hand
twisted around over the head rail white I lost my grip
and t fett to the
ground'with my left shoutder'hittingthe side of the
bus and my hip, tail
bone'my wholebottompart hitting theiron bar that holdstheseat.
t19l Aciordingto the claimant,when she exitedthe bus she couldhardly
moveso
she crossedthe roadand waitedfor the returnof the bus.
The bus returnedin ten (10)
l
minutesand she re-boarded
it.
t20l she spoketo the conductress
and thenmadea complaintto the bus inspectorin
HalfWayTree,in the presenceof the driver"
t21l Shewas examinedandtreatedat the MedicalAssociates
Hospital.
l22l Two days later she was seen by consultantorthopaedicsurgeon,
Dr. Rory
Dixon'she was also examinedby him on 21't December,200g,
Januaryand March

2008and February2A15.She was examinedand treatedas well by Doctorspalmer,

Minott,Peart,Cheeks,Goldingand Lofter.
numeroussessionsof physiotherapy
t23l She has undergone
and claimsto havehad
overseastreatment,
for whichno supporting
evidencewas provided.
t24l As a resultof her injuryand associatedlevelof pain,Dr. Dixonprescribed
future
carewhichmayincludearthroscopy
or hip replacement.
l25l She said the pain was so debilitating
that !t was difficultfor her to carry out
normaldutiesandto walk,sit or stand.As a consequence,
she did not returnto workas
a practicalnurseat AutumnGold NursingHomebecauseshe was unableto standfor
longor to liftpatients.
t26l She earnedfofi threethousanddollars:l(g+8,000.00)
monthlybut was paid for
only two monthsafter the incident.Betweenthen,,and October200b she had no
earnings.she starteda bag juice businessin october2009 from whichshe earned
aboutthirtytwo thousanddollars($32,000.00)
monthly.Thisbusinessclosedin January
2012.BetweenJanuary2012and October Z}fi shewas unableto workbecauseof the
incidentand also becauseof anotherillness.Since2013she has beenworkingas a
part time nursingadministrator
at a nursinghome in St."Ann at a salaryof forty
($40,000.00)
thousand
per month.
t27l The Claimantwas allowedto amplifyher witnessstatement
to correctthe datein
paragraphseventeen(17) to 21't December,2007.She also expandedparagraph
twenty(20)to includethe dates- 13thNovember,2Ol4and
lgthNovember,2014.To
paragraphtwentyeight(28),she includedthe cost of the injectionas one hundred
and
eightyUnitedStatesdoilars(US$180).
t28l Duringcross-examination,
the claimantsaidthatpriorto this incidentshe had no
physicalproblems.She agreedtherewerehandrailsand overheadrailsfor passengers.
She did not agreethat she fell becauseher handswereoccupiedand/orthat she had
failedto holdon to the railsand had beenwalkingin the bus whileit was stillmoving.

$he deniedthat she fell when the bus was negotiatinga cornerfrom SwalloMield
AvenueontoHavendaleDrive.

he Defence
l29l Evidencefor the defencewas givenby Mr. RichardReid.His witnessstatement
wasorderedto standas his evidencein chief.
l30l

Hiswasa terseaccountof the incident.In hiswitnessstatementhe said:

. l

"3. While proceedingto Havendalethe,.passengerbelt rang for a stop.

There was abouf /ess than ten (10) passengersin the,,bus.I was on
SwallowfieldAvenuenegotiatinga righf hand corneronto HavendaleDrive
whena femalepassengerchooseto get up:outof her seat henceshe was
pitched back on a seatand accordingto heif|she hither side. However,i
did stopped(sic) at the next availabtestopwhic;hwas on HavendaleDrive
wherethe lady exitedthe bus.
4. Whileheadingback to Hatf Way Tree t obseruedthe tadystopped(sic)
and took the bus in the said vicinity.
?

5. On reachingHalf Way Tree I was informedby the CustomerSeryice

Agent (csA) Mrs: stewart that the rady was going to make a complain
(sic) to the point inspector.I wentover to hear whenshe totd the inspector
that shegot up from her,seatand fetl and hit her side and that shewant to
go the doctor.
6. The inspectorin a professional
mannerinformed herof the steps she
shouldtakeif she wishedto reportthe matter.lt is (sic) was then I decided
to makemy reporton the matter."

l31l The defendantalsostatesthat its driver/servant

and/oragentwas proceeding
to
Havendalealong SwallowfieldAvenuewhen a passengerbell rang. The claimant

, ***@*@.*\i*;rlr

*;i$*;*t"ra;i;ii*ifii r;iJi.:,..j|

immediately
got up fromher seatand proceeded
to walkintothe busaislewhilethe
bus
was negotiating
a righthandcornerfrom swaffowfierd
Avenueunto HavendareDrive.
The claimantfailedto holdontothe
avaifablebarsin the bus whilethe
bus was turning
the cornerand as a resuftthe cfaimant
fell backintothe seat.At the next
availablebus \
stop,the claimantexited.

l32l In cross-examination,
Mr. Reidtestifiedthat h* *"r'*orking
on the routefor the
first time' He had becomeaware
of the incidentonry',cin
,;;r; ;;;,
Half way Tree
terminus'He deniedthat he had
demonstrated
a poor *unn*, ano attitudewhile
executinghis dutiesat the time
of the incident.He deniedffat tn.r.
was any pothore
whichhad beennegotiated
at the time.Hd'insistedthat he r,ao
negotiated
a corner
'v' "in'
the vicinityof wherethe craimant
saidhe hadmanoeuvreo
,.rro
o;rna,".
"
l33l contraryto his witnessstatement,he
said he had not seenthe ctaimantget
up
fromher se'at'He afsodeniedthat
he had seenher whifethe bus was
turninga corner.
Accordingto him,"l was paying
aftentionto the road,.ne oionlt
ir"* *n.ther she was
standingand if she got up when
he was negotiating
a corner.she was seenfor the first
time' disembarkingthe bus some
ninety (g0) feet or so from the
intersectionof
Swaflowfiefd
and Havendale
Drive.

l34l The claimantrosefromher seatwhite

the buswas in motion.she hefd
a gift bag
with lunchin the lefthandand also
had a bag overthe rightshourder.
I acceptthatshe
heldontothe overheadpassenger
railwith her righthand,and to
the raifin frontof her
withthe refthand,but I findthather
refthandwas somewhatencumbered.
l35l Thereis no evidenceof a rateof speed
at whichthe buswastraveiling.
However,
I findthatthe claimantfeffbecause
of a suddenor sharpswingor
swervingof the bus.
The natureand extentof her injuries
are consistent
witha falrin thosecircumstances.
I

believeher that therewas a "violentswerve"

whichcausedher handto ,,twistaround
overthe handraifuntirshe rosther gripand
feilto the ground,,.
[36] There is a disputewhetherthe bus swerved
to negotiatea pothoreor was
negotiating
a cornerat the timethe claimantrose.In
my view,it is not materiar
whichof r
thosescenariosobtained.crearry,shefeil
dueto the motionof the bus.
t371 | alsofindthat the bus driverdid not witnessthe
incidentand is in no positionto
say'as he alfeged'thatthe ctaimantwas
walkingin the isreat the timeandfailed
to hold
on to the handrails'I makethis findingbecause
in cross.examination
he tordthe court
that he neversaw the claimantwhenshe got
up out of her:'seatand had seenher for
the first time whenshe was disembarking.
He also admittedto not knowingwhether
shewasstandingin the buswhen,accordinE
to him,a cornerwas beingnegotiated.

Analvsis,
l38l Harris'JA in Glenford Anderson v. George
welctr [2012]JMSc civ. 43 at
paragraph
26, enunciated
the rerevant
principlein theseterms:
It is well establishedby the'authorities
that in a claim,groundedin the tort
of negliQence,theremust be evidence
to show that a duty of care is owed
to a claimantby a defendant, that the
defendant
-craimant
actedin breach of that
duty and thatthe damage sustained
by the
was causedby the
breach of thatduty' lt is alsowell settled
that wherea claimanta1eges
that he or she hassuffereddamageresutting
from an objector thingunder
the defendant'scare or control,a burden
of proof is caston him or her to
prove hiscase on the balanceof probabitities.
[39] Lord Griffithsin Ng chung Pui and Ng wang
King v Leechuen and Another
PrivycouncilAppealNo' 1/1988delivered
on 24 May 1ggg,pp.g,4 deartwith
the
burdenof proofand rofeof the court.His
lordshipsaid:

The burden of proving negligence resfs throughout the case on the

plaintiff. Wherethe plaintiff hassufferedinjuriesas a resultof an incident
whichought not to have happenedif the defendanthad takendue care, it
will often be possiblefor the plaintiff to dischargethe burdenaf proof by
inviting the court ta draw the inferencethat on a balanceof probabitities
the defendantmust have failed to exercise due care, even though the
plaintiffdoes not knowin whatparticularrespectsthe faitureoccurred.
... it is the duty af the judge to examineatt theevidenceat theend of the
caseand decide whetheron the factshe finds to nave beenproved and
on the inferenceshe is prepared to draw he is satisfiedthat negtigence
hasbeen established.

t40l The learnedauthorsof Bingham and Berrymans'Motor Claim Cases 11th

Edition,page421,statedthe standardof carewhichis expectedof the driverof a public
';,'
passenger
vehicle:
I

... a person who undertakesto carry anotherperson in a vehicleeither

gratuitouslyor for rewardwill be liable to that otherpdrty if he causeshim
damageby negtigence.Theduty is to use reasonable
care and skill for the
safety of the passengersduring the period of carriage. There is no
absoluteduty.(para12.1).
t41l In Parkinsonv. LiverpoolCorporation[1950] l ALL ER 367, pritchard,J
found the test to be "...Did the driver act reasonabtyor unreasonablyby doing
somethingwhicha reasonablepersonwoulddo?"
t421 ln that case,the defendantbus driverbrakedsuddenlyand stoppedthe bus to
avoidhittinga dog whichhad crossedin frontof it at a distantof some18 feet.A fortyfive year old male passengerwho had risen from his seat to alightand had been
walkingalongthe aislewas thrownto the floorand broketwo ribs.The conductorwas
alsoinjured.The seatedpassengers
wereunaffected.

_4*--4.

+!!,4i.q..:.:,*"o;*.

r, r.rr.

.,,.&i;

;iii

[43] The trialjudgefoundthat

the driverhad actedas
a reasonabfe
personwourd,in
an emergency'and there
was no negrigence.
The court of Appeaf,uphefd
the decisron
and said that if therewere
no expfanation
of how
v" the
r''v-incident
I't'ruetlr
occurred'
occurre
d, a primat facie
caseof negfigence
woutdhavebeenfound.
[44] fn wooler v' London Transport
Board [1926] RTR 206
n, cA, cited in
Binghamand Berrymans'
page 442,thecourt
of Appearhefdthat the
liabfeto the passenger
driverwas not
who was not hofdingon
and wasithrownover by
stop of the bus' The incident
the sudden
had occurredat rush hour
n. defendant,s
traveffing
bus was
at 25 mifesper hourbehind
"no
a rorryataboutr.,rril;
i* rJngtnThe pfaintitf
among some standingpassengers
was
in the bus, in
t;;;'io
arignt.suddenfy,a
pedestrian
steppedoff the pavement
in frontthe forry.The forry
puredup suddenfyand
the bus driverbrakedhard
to avoida coffision.
The courtseemsto havepraced
weighton the fact that
great
the driverhad acted in
,,.rpon;. ,;;; rr.rn.n.y
thereforenot negligent.
and was
l
t45l

ln Barry v' Greater

llranchester passenger'::'Tr"r"port
Executive(1g,h

jll'll;#'i":T:l;:,':fi,

rurltranscript)
cn,; ; ;;,s" qqsin
Binsha
"o'
m
was driving

sfowlyas the htrs approached

a stop. He
dogs,one on a reash.Just
as ne wJs uoort to pass
of the dogsdashedout into
them,one
the roadin frontof the bus.
The
driver
brakedsuddenry
the passengers
and
who had risenfromtheir
seatsin preparation
for afighting,
to the floorand injured'The
werethrown
driverwasfoundnot to
bfame
as he hadactedon instinct
preservefife.Thisdecision
to
wasconfirmedon appeal.
saw threegirfswithtwo

146r rn Gardner u ,nited countries

omnibus co.Ltd
tlgg,r cLy 4477,cited at
page 443in Bingham
andrBerrymans,,
a seventy-eight
(7g) yearordpassenger
thrownfrom her seat and
was
sustainedinjuriesas the
bus
negotiated
one of a numberof
corners'The courtfound
that she had not been properry
seated.ft was herdthat ,,it
wouldhavebeenan impossibfe
burdenon the defendant
if its bus driveroweda
ensurethat passengers
duff to
did not sit inappropriatery
and withoutproperrysafeguarding
themselves
priorto the commencement
of the journey.The praintiff
coufdnot recover
becauseshe did not ensure
herownsafety.

:,
11
..'".ii,."r,,i

I47l I havedistilledfromthesecasesthata driverwill not

be liablefor injuriescaused
dy a suddenmovementor braking,wherean
justifieshis actionandthatin a
emergency
casewherethe claimantis provedto be the
authorof his own injury,the bus driverwill
notbe heldliable,withoutmore.
[48] ln the instantcase,the defendantdeniesthe presence
of a potholebut gaveno
explanation
as to whatmighthavecausedthe cfaimantto
fall.lt is commonknowledge
that these buses are designedto carrystanding
passengers.The claimantgave
evidenceof the presenceof overheadrailsand
seatrails.somethingmusthavecaused
the claimantto be thrownoff balance.There
was no emergency.
Thereis no credible
evidencethat the claimantwas standingimproperly.
she spoketo havinga handbag
overher rightshoulderand a smallgift bag
containing
her dinnerin her lefthandand
thatshe heldon to the rails.Thisdoesnot seem
an abnormalsituation,
for the userof a
publicpassenger
vehicle.
l49l The casesestablishthat the law imposesuponthe
driverof a publictransport
vehiclea dutyof caretowardsthe passengers
beingcarried.The testappliedis whether
the driverof the bus actedreasonablv,
as woutdbe requiredof an ordinaryreasonable
and carefuldriver. upon beingfacedwithan
extra-ordinary
or exceptional
situation,
the
driveris requiredto applyhis mindto how he
oughtto act r,rlithout
endangering
any of
his passengers(perkinson v Liverpool).
l50l ln the circumstances
of this case,I find thatthe driveroughtto have
had,in his
contempfation'
that it is normalfor passengers
to risefromtheirseatsin preparation
for
alightingand that theywill not alwaysbe in position
a
to hofdthe railswith bothhands,
firmly'Therefore,the bus shouldbe manoeuvred
suchthat a passengerwoufdnot be
put in a stateof imbalance,
to occasiona fall. The driverin the instant
case did not
manoeuvrethe bus with the "skill and
care of a reasonabledrive/, (Glascow
corporation v sutherrand(1g51)95 s.J. 204
citedin Binghamand Berrymans,,p.
442).
t51l I find that there was no explanationgivento rebut
theprima facie evidenceof
negligence'
The bus was underthe management
of the defendant,s
servant,and in the

ordinarycourseof thingsthe accident

courdnot havehappened
withoutnegfigence
(Jamaicaomnibus servicesLtmited
v Hamitton(1970)
12JLR).

ContributorvNeqliqencg
l52l The principleof contributorynegligence
is that the damagesawardedto
the
claimantshouldbe reducedto the
extentthat her fautt contribr;;;
to the injuryor
damage.The test is whetherthe
claimanthad taken:propercare for
her own safety
'
(Jones v Livox euarries Limitedt19521
,,,,'
2 eB 60S).
,
I53l on the factsof this case,as I haverouho
themto be, the-issueof contributory
negligence
has not beenproved.
l54l For thesereasons,I findthatthe driver
did not aci as a reasonabfe,
prudentand
carefuldriver'I thereforeholdthatthe
defendantis riabreto th;;; in negrigence.
I
wilfnowassessthe damagesto which
she is entited.

Assessmentof Damaqes
l55l The claimantwas41 yearsold at the time
of the
and a practicafnursein
Jamaica''Her evidenceof pain and
"r.iornt
sufferingwas supportedby a number
of medical
reports.

156l Dr' Dixonexaminedthe claimanttwo

daysafterthe accidenti.e. l gthDecember
2007' The complaintwas thatshe
was a standingpassengerin a
bus thatwentaround
a corner,and in the process,she fefr
hittingher reftbuttockand reftthigh.
[57] She compfained
of pain in the feft hip and buttock
with difficuftyweightbearing
and arsodifficurty
sittingdown.Thepainpersisted
despitetakinganargesics.
l58l Dr. Dixon,sfindingswereas foilows:

;4j;ndl;:.t;ru:i,r:i$

patn
bruisingon the raterafaspect
of reftthighconsistent
withthe fart
tenderness
on palpationoyerthe coccyx
(tailbone)
- straightregraise
test difficurtto assessbecause
of pain
- x-raysof the pefvis
appearednormal
_ a possiblefracture
of the tail
- lowerbackstrain

bone
,i

- x-raysof fumbar
spineand sacrumordered

'

't..'

t59l Theclaimantwasseenagain
by Dr. Dixonon 2st Decem
ber2!007;He noted:
- compfaint
of painin rowerbackradiating
to the feftreg
_ straightfeg raise
test positive
'
'
- bowstringtest
negative
- x-raysshowed
degenerative
changesin rumbalspine
- sfightposterior
dispfacement
of the tsmuafsegmentof
coccyn
(suggestive
of a fracture)
160l He recommended
physiotherapy
andprescribed
analgesics.
t61l The claimantwas reviewed
on ol'tJanuary 20og and
reportedthat the pain in
the buttockwas ressand that
she haddone5 sessions physiotherapy.
of
Assessment
t621 "'tltl is expectedthat pain
in her buftockshoufd
decreaseas the coccyx
(tailbone)
heals"'nocommentcan be
madeon herextentof impairment
at thistime.

163l The claimantwas examinedagainon 8thMarch200g.She reportedworsening

painin the lefthip (aggravated
by movementof hipjoint).
164l X-raysshoweddecreasein joint spacein the posteriormedialcompartment
of
the lefthip. She was assessedas havingposttraumaticosteoarthritis
of the lefthip,for
whichshe was referredt K.P.Hfor injectionin the left hip underfluoroscopy
and further
physiotherapy
was recommended.
t65l She was nextseenon 27thApril,?Q1',btillcomptaining
of worseningpainin the
hip and was now usingcrutchesto ambulateShewas takingrorphin"
for pain.pain in
the backwas now less and intermittent.
There,,was
restriction
of movementof the left
hip,flexionlimitedto 45" (normal- 90.).
'X-tay
of the hip showedpersistencein decreasein the posteriormedial
166l
compartment
of the letthip

t67l

Dr. Dixonreportedas foltows:

She hasshown significantimprovementwith respectto the lower
back and now
hasonty intermittentlower backpain whichis notdebititating.Sheis
expectedto
have recurrenceof low back pain but thefrequencyand severityis
notexpected
to be severe. A regularhome exerciseprogramto strengthen the
core muscles
will minimisethe recurrenceof low backpain.
She has developedprogressiveworseningpain in the left hip which
hasbeen
shown to be post traumaticosteoarthritis.lt involvesthe posterior
medial aspect
of the left hip ioint which hasseverelyincapacitatedhertil now.
Thisis notthe

maior weight bearingsurface of the joint but becauseof the severityof the fall
therewas damageto the cartitageof thejoint at thetime of the initiatinjury" This
was not seen on the x-ray initiallybut some arthriticchanges(narrowingof the
ioint) werenotedsubsequently. Shecontinuesto havepain due to the narrowing
of the ioint space and she now has to use a crutch to support her watking. lf'
thereis progressionof the arthritis,shewoutdeventualtyneedhip reptacement...
Arlhroscopyof the hip woulddemonstratethe extentof the narrowingof thejoint
...Thepain has limitedher level of activitysuch as watkingand she also has
difficulty bending down. lf she eventuatty requires hip replacement, the
impairmentwould increaseto about t5% whole person. Overatt the level of
impairmentwith respectto the hip pain is aboutg% whole person.
lf she eventuattyrequiresa hip replacernent,
lha,impairmentwould increaseto
about 15%wholeperson.

2014
168l The claimantwas examinedon 6thNovember2013at the defendant,s
request.
Dr. Minotthad the benefitof the reportof the radiographs
of her hip and pelvis,but no
films.He wasalio providedwithDr. Dixon'smedicalreports.
169l Dr Minottfound'asfollows:
- full painlessrangeof motionin the spinein all plains
- rangeof fonryard
flexionwas limitedby tightnessin hamstringtendonsrather
than
difficulties
of the lumbarspine
- the sacro-iliac
jointseemeduncomfortable
withthe

FaberTestandon springing

herpefvis
-therewas tenderness
over
- discomfort
in

the adductorattachment
on the pubis

her backand groil area

withfufrabduction

' internafand
externafrotationof

::i-,ilJ;:T:;[:1:[:,''"'medicar

the hipswerenormaf

rinoinl;
o*endemess
inthecoccyx
witha

cons
iste
ntand
see
med
causal
ulHtrl|TJlffiliJ,,li:;ffi :..;lJff
attributabfe
to thisinjurysettledprogressiv-,;;;..,
*r."

suggestedthat the low

backpain

,onr^,

is likefyOr* ,"'

related
tothe
accident
He
noted;
;ilffidf,il":,ff;jili

nOt SignifiCant anymOfe.

-Y'I

"^*,"n

-Y'v' ' t' rc.r rrre lo!

the injury.He

#:nill

t71l Or fvlinottfoundthat the

de

afte
rrheaccide
noted
nt,we
3davs
reno,,n.o,,ni::
iil:"'J::ffi j:ffi H:1, Jine,

[72] He concurredwith Dr'

Dixonthat there was
no perrnanentimpairment
fumbarspine.
of the

[73] Dr"'Minottconcludedthat
the hip pain was the
causeof the cfaimanfls
and opined that the
disabirity
source of the pain
was
fl
recommended
S;fjointinjectiorrst74l

a@

fn retationto whethef'the
arthritiswascausaffyfinked
he said:
My difficuttyis accepting
the mechanismof iniury
and naturat history
arthritis' tf her point of
of the
contact with the buswas
in
her
buttockarea with sufficient
forceto fractureher
coccyxand avoid her
sciatic
receivedanv btow to
the hip whichwoutdresutt';:::;:;"'::r;;:r;{r':f
other words'the tine of
;:;
forceat the time of impact
wasnot directedat the
acetabularioint' If we
femarotherefore acceptthat
she has arthritis of
the hip it is

reasonableto concludethat thisis not

causatty relatedta theaccidentbut merely
part of her own intrinsicnatural
historyas a person.t therefore,will
not evaluate
her impairment of hip'ioint arthritis
as part of her permanent impairment
estimationfrom the accident..,therefore,
impairmentrating is l% as forclass
/ ,
impairmentof the sacro-iliac
Her
other injuries were cansideredbut
ioint.
do not
haveany impairment.

t75l Dr Dixon examinedthe claimanttwicer:after

Dr. Minott,sexamination.
Those
being14thand l gthNovember
2013.Hisfindings
were:
-persistent
painin the hip (agreeingwithor.
Minot thatsomeof the painis due to
strain
, ,,,
in the sacro-iliac
joint)
176l He'stated"l stitlmaintainthat the osteoarthritic
changesin the left hip can be
attributedto the fatl'"However'he found
thatthe x-raysoio n-ot,;";'any worsening
of
the osteoarthritis
and thatshe hadfurrrangeof motion
of the hip.
',:^,l-t

*totmended a steroidinjectionto
the hip joint dt a cost of approximatefy

us$1000.

t78l Mr' wedderburnsubmitted,for the defendant,

that there is conflictingmedical
evidenceas to whether:
'

(a) The incidentwas"the cause

of the claimant'sosteoarthritis
of the hip as
statedby Dr" Diion or whetherthe
claimanthad this pre-existing
condition
priorto the incidentas stated
by Dr. Minott;
(b) The claimantsuffere
d 8% wholepersondisabirity
as statedby Dr. Dixonor
whetherthe claimantsuffered1o/o
wholepersondisabifityas stated
by Dr.
Minott.

to be whetherthe persistentpain in the left hip is a

I79l I find the inconsistency
c6nsequence
of a dysfunction
joint, as foundby Dr, Minott,or as a
of the sacro-iliac
consequence
of posttraumaticosteoarthritis
joint(combined),
and painin the sacro-iliac
as foundby Dr. Dixon.
l80l I recognisethat Dr. Dixonwouldhave seenthe claimantas earlyas two days
afterher injuryand duringthe periodof approximately
sevenyearsafter.He was also
the last one to examineher. ln that examination
he maintained
that the osteoarthritic
changesin the lefthipcouldbe attributed
to the fall.He alsofoundthatthe osteoarthritis
had not progressed.He agreedwith Dr. Minott'sfinding,a yearprior,that therewas
painin the sacro-iliac
jointdueto a strain.
withinwhichthe claimantis observedby respective
lSll The time-frame
practitioners
is
one of the considerationsin resolvinginconsistencies
in the miOical evidence.
However,in this case, it is the qualityof the medicalanatysiswhich makes the
differencer
t82l I shouldsay,at the outset,that althoughDr. Minottoioinothavethe benefitof the
radiographs
of the pelvisor the MRI filmsof the lumbarspine,his analysiswas no less
soundsincehe had utilisedthe reportsof the radiographs
anflthe findingsof Drs.Dixon
and Peartin arivingat his conclusions.
t83l On the important'questionof whetherthe osteoarthritis
or the osteoarthritic
changesin the left hip can be attributed
to the falt,I preferDr. Minott'sevidence.I have
arrivedat this positionbecauseDr. Minottwas comprehensive
in his explanation
that
physiologically
it was "veryunlikely"that the natureof her injuryto the coccyx,that is
fractureof the coccyxwhichavoidedher sciaticnerve,causedosteoarthritis
in the hip.
Dr. Dixon,on the otherhand,seemedto haveconcludedthat the causallink to the
osteoarthritis
in the hipwas established
by evidenceof bruisingto the lefthip.
l84l ln relationto the degenerative
changesin the lumbarspine,as found by Dr.
Dixon,I acceptDr. Minott'sattribution
to normaldegenerative
progression
for someone
of the claimant's
age. In contrast,Dr. Dixoninterpreted
the x-raybut did not providean
explanation
for the degenerative
changes.

[85] ln the circumstances

of such gfaringinconsistencies,
the claimantneeds to
discharge
her burden,on a balanceof probabilities,
thatDr.Dixon,s
findingof B%whole
persondisabirity
is to be preferredto Dr. Minott,s1%.
[86] That burdenhas not beendischargedbecauseI am not satisfied
on the medical
evidencethat the osteoarthritis
in the left hip is causallylinkedto the accident.
on the
converse,I am satisfiedthat painin the sacro-iliac
joint is attributable
to the accident.I
have arrivedat that findingbecauseboth Drs.
Dixon and Minottare agreedon it.
However,whereasDr. Minotthas attributedan impairment
ratingof 1,/otopain in the
sacro'iliacjoint,Dr' Dixonhas not ratedthat injury
separatelyfrom the pain in the hip
whichhe saidwascausedby osteoarthritis.
[87] For thesereasonsI findthatthe claimanthas suffereda lyoclass
1 impairment
of the sacro-iriac
jointin additionto the injuriesouflined
berow:
(a) blunttraumato leftbuttockand leftthigh;
(b) bruisingon the lateralaspectof the left
thigh;
(c) difficutty
weightbearingand sittingdown;
(d) tenderness
on palpation
overthe coccyx;
(e) fractureof the coccyx;
(f) lowerbackstrain;
(g) lowerbackpainradiating
to the leftfeg;and
(h) posteriordispracement
by the terminarsegmentof the coccyx.

I88l I mustobseruethatthe courtmighthavebeenbetter

aided,hadthe doctorsbeen
calledto clarifytheirfindings.
t8gl Mr' Henry,for the claimant,reliedon the cases of
Marceltaclarke v claude
Dawkins& Lestieparmer,craim No. c.L. 2oo2c
047,reportedin Khan6 at p.54;

The claimantwas assessed

with a 12% whore person
disabifityand totar hip
repfacementwas recommended'
Damageswere assessed
in october 1gg2 (cpf:
17.15)and the claimant
was awardedthe sum
of $400,000.00
for pain and suffering
which

il:Jiil:1H,,'rs

today
would
yieldthesumof $s,201,166.18
usins
rhe\

[92] In Michiko Bahadur & Anor

v Donald Jones&,Anor,the
craimantsuffered
lacerations
to her scalpand ear, a fracture
of her feft.cravicre
and a fractureof her
pefvis'she was hospitafized
for 3 weeks.The fracture
to the ,*u o"",.,e heafed
weeksbut with some misalignment'
atter
7
Dr' Defroy Fray,whoassessed
her on lgth April
2005(11 monthspost'accident),
describedit as ,,anu";r;;;"*,*o
fractureof rhe
leftlateralclavicfewithno
fun*ionardeficit.,,o,rruv
;;;rn;;';,
cfaimant,s
elicitedmifdcrepitusbut had
refthip
fuffpain-freemovement.
He arsoreportedthatshe
antafgic(pain-refieving)
has an
gait due to a 1 /2" shortening
of
the
tett
teg with a g% whofe
persondiqabifity'
Damageswereassessed
in June,*,rtt,,';;.;;
and the cfaimant
was awardedthe sum of
$2,300,000.00
for pain and rrn-r,rn""ro
rossof amenities
whichtodaywoufdyiefdthe
sum of $5,255,661.44
usingthe currentcpf of 223.
sulene campbett v witbert
Diilon,the cfaimant,29
::
:
*. time of the accident
and 31 at the time of'assessment,
",
sufferedabrasionsto face;
swellingover forehead;
severebony tenderness
involvingright hemipefvis;
muftipfefracturesinvofving
hemipelvis;fractureof the
right
ramiof the ischium;fracture
of pubicbonewithoutsignificant
displacement
and fractureof the acetaburum.
she was admittedto the
st. Ann,sBay
Hospitalconscious'but in painfuf
distress.The fracturein
the acetabufar
righthip joint requiredcomplete
cavityof the
bed restand a skin traction
of the rightfowerfimbfor
one month.physiotherapy
was con

she
was
a*envards
allowed,o
*ffi |.ililt#:ffi:f jtr;: ff ffi il:

examined
bvDrEmran
ffil.1*J,Hil|j:"Jff:::H"il;j*"r'J'uu
A,i,
(i) 3.4"scaroverthe right
eyelid
(ii) Healedabrasions
ou"l',ighirygoru

(iii)1 % "shortening
of the rightfimb-causing
a fimp

[i![?jtril:Tl[-r:?;: il'

t* ioint
ivith
'J*,,0shirt
ortfre
hemipervis

(vi)Thatshe experienced
painiver

,Yli lltjh""il'ffin:t#"ic

rightsideon wafking

rins
misht
u#*r,
normar
derivery
(atchirdbirrh)
,

Damageswere assessed
in June 2000 (54.51)
and the praintiffwas awarded
$1'300'000'00in generaldamages
for pain and sutfering
and ross of amenities
whichwhenupdatedequates
to $5,g1g,ZgO.22.

[94] Kimesha Thomasv sytvester

sydney Rose(t/a ctassic
Food whotesare),the
cfaimant
suffered
severeswelfing
anOtenOernes

vertebrae
tothe
coccyx
bone),
ltair
**n,,"0n;;;iiiJfiJ:::?;fi
(buttocks)
l;ilinff::
accompanied
by multiptebruiseson

thJ low., 0".i. lrrtr,., examination

revealed
a healingabrasionof 5 x 4 cmto
the ,o*,, o;J;;;riing
,no tenderness
overthe rishrsideof rhetower
backandit was,n. ;;;l;r;'ransappa
"wouldlikelyexperience
thatshe
occasionaf
episodesof fowerback pain
for the next 0-6
months"'
Theclaimant
wastreatedwithanargesics
andphysiotherapy.
Damages
assessed
were
in'January
2014(cpr: 211.g)ano
unewasawarded
thesumof $1,200,000.00

:ilil1i:,;[:,,,s

which
today;;;;";o;,

sumor$1,26s,4s60e
usins
the

lg5j Mr" Wedderburncited the

cases of Kimesha Thomas(ibid);
David prince v
Jamaica 'rban Transit
company Limited, craim
No. 2011HCv 03579,
JMscv civ 107;Barbara
t2o14l
Brady v Barlig lnvestment
co.
Ltd & vincent Loshusan
sons [f4 suit No' c'L.
&
1990B 081, Khans vot.s
page 2s2;and cottette
Dorothy Henry & Rescue
Brown v
EnterprisesLimited, page
42, Khanvofume5.
l96i fn David Prince v Jamaica
l,rban Transit company
Limited,the craimant
sufferedbackstrainwith
underfying
degenerative
changesin the fumbosacraf
spine.X-

raysalsoshoweda possiblefracturingof transverse

processof the L,3 and scoliosisof
mid thoracicregion.The courtconcludedthatthe claimant'sbackstrainwas
relatedto
the traumabut the degenerative
changeswereunrelatedto the trauma.Damageswere
assessedin July 2014 (CPl: 218.9)and the claimantwas awardedthe
sum of
$700,000.00
for pain and sufferingwhichtodaywouldyietdthe sum of
$716,62g.61
usingthe currentCPIof 224.1.
[97] ln BarbaraBrady v Bartig lnvestmentCo. Ltd & Vincent Loshusan& Sons Ltd,
the claimantsufferedloss of consciousness,
severe lower back pain and marked
tenderness
alongthe lumbo'sacral
spineas well as bothsacro-iliac
joints.x-rayof the
lumbarsacralspinerevealeddegenerative
changesbut no obviousfracturesand she
was treatedby way of physiotherapy
and analgesics.
She continuedto complainof pain
in the lowerbackand thighand was assessedwith 5% disabilityof the

wholeperson.
Dr. Roseattributedthis disabilityto osteoporosis
withfacetof osteoarthritis
and was of
the viewtfratthe degenerative
changeswerenot causedby the accident.However,the
onset of severeintermittentlower back pains which were not presentprior
to the
accidentwere directlyrelatedto the mechanicallower back pains. Damages
were
assessedin November1998and the claimantwas awardedthe sum of
$300,000.00
for
painandsuffering
whichtodaywouldyield$1,977,0gg.ss.r
[98] fn ColletteBrown v Dorothy Henry & RescueEnterprisesLimite4 the claimant
sufferedminorbruisesand lacerationof legsand fractureof the rightand
left superior
and inferior pubic rami without displacement.She was treated
with bed rest,
physiotherapy
and analgesics.
she was assigneda ppD of 5% of the wholeperson.
The sum of $500,000.00was awarded in June, 2000 which
would today yield
$2,055,596.14.
t99l Of the casescitedby both parties,I find KemeshaThomasandBarbaraBailey
to be mosthelpful.Neithercasetakesaccountof the full range
of injuriesenduredby
the claimant.Barbara Baitey comes closestto the instant
case but there was no
fractureto the coccyxand the painin the backdid not radiateto
the legas in the instant

case.Thereis a 5% disabili$of the wholepersonyet it seemsthat the injuriesto the

claimantin the instantcass are moresevere.
[100]Bearingthesefactorsin mindand makingthe necessaryadjustments,
I am of the
view that an awardof two millionfive hundredthousanddollars($2,s00,000.000)
is \
appropriate
for the injuriesin the instantcase.

Damaoesfor futuremedicalcare

,) ,,,,,

ps sustained
Theclaimfor US$19,000
forfuturemedicalcarecannOt
11011
in lightof the
following
i,
findings:
l.

the painassociated
withosteoarthritis
is nolattributable
to the accldent;

ll.

theonlypermanent
joint;and
impairment
is 1%to thesacro-iliac

lll.

the futurerecommended
treatmentis steroidinjectionat an approximate
cost of
UdSf000. Neitherdoctorsaidrhowmanyinjections
wouldbe requiredso lwill
makean awardfor one (1) treatment.

I makean awardof US$1000underthishead,

[102]In the circumstances,
Lossof Farningg.
t1031lt was the claimant'sevidencein cross-examination
that at all times she was
capableof workingand is stillcapableof doingso, despiteher injuries.On the medical
evidence,most of the pain associatedwith the accidentwould have been resolved
withinthefirst6 months.
[104] lt was provedthat,atthe time of injury,her satarywas g43,000monthly.She
gaveevidencethatshe had beenpaidfor two months,post-accident.
lt was alsoproved
thatthe nursinghomeat whichsheworked,ceasedoperatingas of June2008.
| findthatsheis entitledto lossof earnings
11051
up to June2008,the pointat whichher
employment
wouldhaveterminated.
shewillbe awarded$172,000.
[106] Accordingly,

the-labourmarket
Lossof FutureEarninos/Handicagon
t1071To succeedin a claimunderthisheadtheremustbe evidenceof the claimant's
\
earningsat the timeof the trial,evidenceof lossof theseearnings,evidenceof difficulty
would
employment
and evidencethat any subsequent
employment
findingalternative
resultin diminutionof earnings(Dovan Pommells v GeorgeEdwardset al Khans Vol
3, pp.138-144).

:,

was expressedin thesetermsby Rowe,P in Atten and Anor v

110BlThe requirement
Watt,SCCA74188:
...a plaintiff is not entitled to ask the Court for dama'gsfor
Ioss of future earnings without bringingsome evidenceon
'

which that assessmenthoweverspecuilative,can be made.

Secondly,to encouragtetriat iudgesto make awards based
on some principterather than upon plucking figures out of
of counsel.
theair supportedontyby submission

submissionthat the claifiranthas not providedany

t10gl I acceptMr. Wedderburn's
credibleevidenceas to:
(i) the nameof the NursingHomein St. Ann whereshe now worksas a parttimeNursingAdministrator;
(ii)the numberof hoursshe is requiredto workper weekas a parttime Nursing
Administrator;
in the formof a letter
(iii)hermonthlysalaryas a part-timeNursingAdministrator
or paysliP;and
of appointment
is requiredto work
(iv) the numberof hoursa full time NursingAdministrator
per week;or the salarycommanded
by a fulltime NursingAdministrator
at a NursingHome.

"

I acceptthat she is currently

[110] However,
employedand is capableof finding
suitablealternative
employment
shouldthe need arise.The claimanl'sevidence
therefore
fallsshortof theproofthatis required
to succeed
in a claimunderthishead.
SpecialDam?qgg
[111] | makean awardof $338,768.59,
as agreedby theparties.
9r_der-s

.,',',,,.i

[112]According|y,|makethefo||owingorders:.
,

'

1. GeneralDamages
in the sumof $2,80O,OO0
witn:interest
at a rateof 3% per
annumfromthedateof service,,'crijthi
ctaimto thedaieofjudgment,
2. Lossof Earnings
in thesumof $17t,0.0p.
, ,
i,,1
3. Futuremedical
carein,the9umof US${ggg",;t'
4. SpecialDamages
in tne'3umio$,$333,768":$8:with
interestat a rateot B/o per
' annumfromthedateof ths'accident
to thedateofjudgment.
5. Coststo theclaimant
to beagreedor taxed.,

SUBJECT'TO,
SANITISATION,,