Sutherland v Metzgen

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Barrington-Jones, J.
• Judgment Date: 23 April 1980
• Docket Number: Action No. 23 of 1977
• Date: 23 April 1980

Supreme Court

Barrington-Jones, J.

Action No. 23 of 1977

Sutherland

and

Metzgen

Mr. B. A. Pitts for the plaintiff

No appearance by the first defendant

Second defendant in person

Damages - Personal injury — Broken hip, damage to nose — Quantum

Barrington-Jones, J.

1 This is an assessment of damages consequent upon injuries suffered by the plaintiff in a traffic accident on the 6th October, 1975.

2 On the 21st November, 1978 judgment was entered for the plaintiff against the second defendant with damages to be assessed. After a number of adjournments, the assessment finally fell to be heard in this court on the 25th March, 1980.

3 The plaintiff, who is now 65 years old, was admitted to the Be1ize City Hospital for seven days as a result of the injuries sustained in the accident. Whilst detained there he says he was in pain and uncomfortable and a pin was put in his left leg and the leg put on traction and he was thereafter transferred to the University Hospital of the West Indies in Kingston where he was operated on by Professor Golding for a broken hip and damage to the bridge of his nose.

4 Professor Golding, in a report dated 9th April, 1979, confirms that the plaintiff was admitted to the University Hospital on the 13th October, 1975 and at that time found that there was clinical and radiological evidence of a severe fracture dislocation of the left hip. It being noted that part of the head of the femur had been broken off from the main portion which was dislocated out of the joint.

5 On the 15th October, 1975 Professor Golding advises that he performed an open reduction for fracture dislocation of the hip, and said that following surgery the plaintiff had difficulty with respiration, needing oxygen and physical therapy. He went on to say — “This gradually improved and he was able to sit out of bed and start partial weight bearing with a walker by the 11th November.”

6 The plaintiff was finally discharged from hospital on the 24th December, 1975.

7 Professor Golding concluded:–

“Mr. Sutherland made a good recovery from the extremely severe injury of his hip. He was totally disabled from the time of injury until the end of December, 1975. He had a disability amounting to 50% of the function of his left leg for a further three months and a final disability amounting to 20% of the function of his lower limb taking into account the pain, residual stiffness and the probable development of a traumatic arthritis.”

8 The plaintiff says that he was in the University Hospital for seven weeks; and that he was in severe pain for the first two weeks in hospital in Jamaica after he had been operated on and when he was in traction. He said that he developed trouble with his right leg and confirmed that Professor Golding had written about his having difficulty with his respiration which required the use of oxygen. The plaintiff said that he was able to sit up in bed in the 5th week and to stand at the end of his 6th week in hospital in Jamaica, but that he could not stand without assistance; and was unable to walk unaided during the whole time that he was in Jamaica.

9 The plaintiff returned to Belize in late 1975 when he was re-admitted to the Belize City Hospital and where he received physiotherapy before being finally discharged after about 3 ¹/₂ weeks. The plaintiff told the court that he was able to walk on crutches a week before he was discharged and continued to use crutches until March, 1976, and that he continued to have physiotherapy during this period. In March 1976 he commenced to use a cane as an aid in walking and has used one ever since that time. The plaintiff complains of pain in his hip and says that as he grows older this will become worse.

10 Prior to the accident, it was the plaintiff's evidence that he was a keen ballroom dancer with his wife, and that he used to attend football and baseball matches as a spectator but that he cannot now dance nor can he attend sports matches. The plaintiff was a driver at the time of the accident but has not been able to drive a motor vehicle since he was injured. The plaintiff says that he cannot now enjoy coitus with his wife and states that he has been impotent since the accident.

11 In regard to his business interests, the plaintiff says that he has a little business selling and delivering soft drinks, a business which his wife carried on whilst he was incapacitated but said that she was not very successful and that he is now trying to restore it to its former level before the accident.

12 The plaintiff says that he suffered a loss in his business for six months at an average monthly loss of $250. He further states that his motor vehicle was a complete write-off as a result of the accident and that he paid $1,700 for it although he said it was valued at $2,400 at the time of the accident and that he paid $20 for the car to be removed from the accident site and that it was sold after the accident for $250.

13 The plaintiff says that his medical expenses amounted to $650 in Jamaica. He also claims $110 in respect of a consultation with Dr. Perez and prescription for spectacles which became required after the accident. His account with the Belize City Hospital amounted to $320. He further states that airfares between Belize and Jamaica amounted to $1,437.14. He also claims expenses for taxis in the sum of $4,756.25 for the period October, 1976 to 3lst March, 1977. This, the plaintiff claims, is based on a fare of $4 per journey between his home and the hospital on four days a week for 3 ¹/₂ months and 3 days a week for the remaining period of 3 weeks. He also claims for one additional journey to consult Dr. Perez; for taxi fares in respect of six visits to the Insurance Office at $2 per visit. The plaintiff also says that he hired different taxis for 8 to 10 hours per day in order to deliver soft drinks which cost $35 per day, but did not tell the court the period that such deliveries were made.

14 The plaintiff admitted that he received $5,076 from the Belize International Insurance Co., Ltd., and invited the court to discount this amount along with the $250 realised on his car from the assessment to be made.

15 There is a further claim by the plaintiff in respect of a repair to a dental plate by Dr. Heusner in the sum of $25. Finally, the plaintiff gave details of interest he was required to pay on the money he borrowed to purchase his car, but in my view that claim is too remote and I have therefore disregarded it in making this assessment.

16 Dr. G.F. Pott also gave evidence and said that he had read Professor Golding's memorandum and examined the Plaintiff on the 20th March, 1980. On examination, Dr. Pott found that the plaintiff had a marked limp when walking with a cane, and he noted a loss of sensation over areas of the right leg. Dr. Pott examined x-rays of the plaintiff's hip and found that such x-rays supported Professor Golding's findings and noted that arthritic changes had already begun to take place, and he said that these would get worse with age. He confirmed that the plaintiff would be in pain. Dr. Pott gave his opinion that it would be impossible for the plaintiff to be an active partner in sexual intercourse although he considered that impotence would not be a direct consequence of injury. Dr. Pott considered a psychological cause to be more likely and thought it a possibility in this case. Dr. Pott further considered that the plaintiff's range of motion in the use of his hip will inevitably decrease with increasing severity of the arthritis. Dr. Pott said that the plaintiff will have pain for the rest of his life, off and on, and that such pain will be annoying and disabling.

17 In...