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IN THE SUPRmCOURT OF JUDICATURE OF JAMAICAIN COMMON LAWSUIT NO. C.L.M.(-)105 of 1997BETWEENORAL MORGANPLAINTIFFAGOODYEAR JAMAICA LIMITEDDEFENDANTNDMr. N.0. Samuels for PlaintiffMr. D. Henry instructed by Messrs. Nunes,hobf field, DeLeon and Company for Defendant.9th, loth, 11th December, 1997June 26th, 1998Heard:MARSH, JASSESSMENT OF DAMAGESThe delay in handing down this judgment is greatly regretted.Assessment of damages is the sole task herein assignedas liability is not an issue.The Plaintiff is currently unemployed but up to May 17,1996 he obtained his livingas a U2 Machine Operator atDefendant's Company at Morant Bay, St. Thomas.He also addedto his income by operating a poultry farm on a fairly limitedscale.He was born on January 30, 1968 and is now married withK-'Ca family.On November 14, 1995 while operating the abovementionedmachine a't defendant's plant, the machine malfunctioned andthis resulted in his receiving serious injury.He was, hetestified, struck to the ground and later found himself inhospital with a doctor standing over him putting stitches intohis left ear and that he could not move.Princess Margaret Hospital, St. Thomas.his neck down to his hands.This was at theThere was pain fromA few hours later, he was takento Medical Associates Hospital in Kingston.He was examined,given medication and referred to Dr. Chutkhan, who was absenthe was seen by a Dr. Vaughan of Dr. Chutkhan office.Dr. Vaughanprescribed medication and a course of physiotherapy.He wasthen taken home and next day he was taken to defendant'sfacilities1 Medical Clinic at Morant Bay.This is when the

t h e r e f e r r a l was made t o D r .Dr.Vaughan.H e a l s o saw D r .Horace H a l l , D r .Chutkhan and P l a i n t i f f s e e n byL y l e H a r p e r , D r . Graham, D r .Hal Shaw and D r .Randolph Cheeks.MEDICAL EVIDENCEHal Shaw and Randolph Cheeks were c a l l e d t o g i v eDrs.e v i d e n c e w h i l e D r . C h u t k h a n ' s R e p o r t and t h a t o f D r .by a g r e e m e n t , t e n d e r e d i n e v i d e n c e .Graham were,E x h i b i t 1 was a r e p o r t fromEureka Medical L i m i t e d c o n c e r n i n g a n MRI(Magnetic Resonance Imaging)o f t h e p l a i n t i f f ' s s p i n e ( c e r v i c a l ) performed by D r .D.Graham.The f i n d i n g s w e r e a s f o l l o w s :"There i s a s l i g h t c e r v i c a l s c o l i o s i s .The o d o n t o i d p r o c e s s a p p e a r s i n a normalr e l a t i o n s h i p with t h e a n t e r i o r arch ofThere i s a s m a l l s u b - l i g a m e n t o u sC1.d i s c b u l g e a t C6-C7 l e v e l .This bulgedoes n o t appear t o cause s i g n i f i c a n teffacement of t h e underlying t h e c a l s a cand t h e c o r d i t s e l f i s n o t deformed.T h e r e i s no e v i d e n c e of abnormalc e r v i c a l cord s i g n a l t o suggest ischemiao r myelomalacia.Impression1.Slight cervical scoliosis.2.Small subligamentous d i s c bulge a t t h eC6-C7 d i s c l e v e l .This bulge doesnot appear t o causesignificant thecals a c o r cord deformity.:'R e f e r r i n g p h y s i c i a n was D r . D. Graham.Exhibit 2Dr.Winston C h u t k h a n ' s m e d i c a l r e p o r t-Dr.Chutkhan sawp l a i n t i f f a s a p a t i e n t on December 7 , 1995 R e p o r t o u t l i n e d t h er e p o r t e d h i s t o r y o f how p l a i n t i f f o b t a i n e d h i s i n j u r y .c l i n i c a l f i n d i n g s were a s f o l l o w s : -His

There was some decrease in the range of movements inthe cervical spine but no abnormal neurological signs.An X-ray of the neck failed to reveal any bony injury.Plaintiff returned to see Dr. Chutkhan on January 10,1996.On this occasion, examination revealed that plaintiffI"would allow very little movement of his neck and shoulders.Medication was prescribed and physical therapy advised.When again seen by Dr. Chutkhan, on February 7, 1996,plaintiff stated he was still having pain when he turned hisneck and was also having cramps to his right hand.was made to Dr. Chutkhan on 13th March, 1996.plaintiff was advised to return to work.Another visitAt this time,Dr. Chutkhan thendischarged him from his care.c)l.-.,On 3rd October 1996, plaint'iff saw Dr. Chutkhan again,indicated he was feeling much better, but that he had pain inhis left upper limb and numbness in his left hand.There wasslight tenderness over the trapezius, full range of movementof his cervical spine with slight pain at the extremes ofmovement.The same was true of his left shoulder and therewas slight pain in full abduction.1' LIn summary injury was to neck, both muscular andligamentous.A full recovery was expected.Dr. Randolph Cheeks, Consultant Neurosurgeon gave vivavoce evidence and his medical report of August 8, 1996 was alsoavailable to Court as an exhibit, tendered by consent.Dr.Cheeks opined that plaintiff's was "not a serious head injury."Injury to neck was ligamentous and involved the annular ligamentof the C6/7 intervertebral disc.The resultant disability israted at 5% of the whole man for all derarlged cervical disc,plus one percent for the loss of 30' of lateral rotation.Hispermanent partial disability, using the guidelines of theAmerican Medical Association.In short, permanent partialdisability is rated at six percent of the whole man.Dizziness

" B l a c k o u t s " i s a consequence o f t h e d i f f u s e head i n j u r i e s " whichhe s u s t a i n e d .I t would r e s o l v e i t s e l f i n a b o u t n i n e-twelvemonths.Dr.Hal Shaw, a n E.N.T.S p e c i a l i s t f i r s t saw and examinedp l a i n t i f f o n 6 t h , 1 2 t h o f J u l y 1996, and t e s t i f i e d o f h i s f i n d i n g sr e l e v a n t t o such examination.s e v e r e mixed h e a r i n g l o s s .Audiograms showed t h a t t h e r e wasP l a i n t i f f complained o f r i n g i n g i nh i s l e f t e a r , s i n c e J a n u a r y , 1996.was a b o u t 60-P l a i n t i f f ' s hearing loss70% o f l e f t e a r and permanent.be u n h e l p f u l i n t h i s c a s e .H e a r i n g a i d wouldThe r i n g i n g i n t h e e a r , "one o f t h emost d i s a b l i n g c o m p l a i n t s a p a t i e n t may be s u f f e r i n g from" i ssometimes t r e a t a b l e .Dr.Shaw t e s t i f i e d t h a t i n t h e i n s t a n t c a s e , r i n g i n g i nthe ear is not treatable.P l a i n t i f f s hearing l o s s w i l l d e f i n i t e l ylower h i s p e r f o r m a n c e o n a job.Spoken words would have t o b er e p e a t e d t o him and h i s s a f e t y may b e j e o p o r d i z e d , i n c a s e s whreit i s i m p o r t a n t t o know e x a c t l y from where sound i s g e n e r a t e d .Both e a r s a r e needed.R i n g i n g i n t h e e a r o r " T i n n i t u s " .mayd i s t u r b s l e e p o r d i s t u r b p h y s i c a l performances i n t h e daytime.,'1Dr.Shaw s t a t e d t h a t p l a i n t i f f was s u f f e r i n g from as k u l l f r a c t u r e o f t h e l e f t middle c r a n i a l f o s s a .However h ea d m i t t e d t o q u e s t i o n i f he h a d a n y o t h e r o f p l a i n t i f f ' s r e c o r da v a i l a b l e he s a i d ' n o ' .H e has not t h e r e f o r e s a t i s f i e d t h i sc o u r t - a s t o why he c o n c l u d e d t h a t p l a i n t i f f had f r a c t u r e o f t h ecranial fossa.By l e t t e r d a t e d May 8 t h , 1996, d e f e n d a n t t e r m i n a t e d t h eemployment o f p l a i n t i f f a s a r e s u l t o f " y o u r i n a b i l i t y t o p e r f o r my o u r normal d u t i e s s i n c e November 1995."T h i s l e t t e r was t e n d e r e dby c o n s e n t a s E x h i b i t 4 .P l a i n t i f f ' s e v i d e n c e i s t h a t up t o t h e t i m e h e t e s t i f i e di n C o u r t , " t h e r e h a s been no improvement i n my c o n d i t i o n s i n c eaccident."T h i s seems a n e x a g g e r a t i o n o f t h e s i t u a t i o n , b e a r i n gi n mind t h e m e d i c a l e v i d e n c e ,s p e c i a l l y of D r .hutk khan.

Plaintiff indicated that he found himself in hospital andgenerally gave the impression that after accident, there wasa period when he was not concious of what was happening, untilhe discovered he was in hospital.Dr. Cheeks was of the opinion in cross-examination thatC!the plaintiff was not rendered unconcious by the blow as theblow was not enough to render him unconcious but enough to'disturb his mental state.'Plaintiff will suffer exacerbationsof painful stiffness in the neck and pain in the right arm andforearms, intermittently and at times of heavy exertions.Thissituation, in years to come will be worsened by normalnormal wear and tear.Because of compression damage to the spinal cord at thenerve to his right arm plaintiff may come to require spinaloperation.This is already being irritated by contact with hisdisc bulging out of its normal anatomical position.There isa 10% chance that the operation may become necessary.He iscertainly going to develop early osteo-arthritis of thevital spine.iDr. Cheeks suggested that the kind of work which plaintiffis advised to do should not involve bending, crouching or liftingmore than 201bs. weight.Mr. Samuels for plaintiff submits that there is a dearthof learning in our jurisdiction re cases involving hearing lossand tinnitus.He referred Court to some English decisions,cited, he said, not for quantum of damages but to assist theCourt by showing how English Courts have approached awards forsuch injuries.Bailey vs. I.C.I.la Vol. 2 Kemp and Kemp on Quantumof Damages at p. 5461 et seq.Robinson vs British Gas P.L.C.Kemp Vol. 2 Damages54432.Albert Bixby's case p. 544278 (supra)

These c a s e s a r e u n h e l p f u l i n t h e i n s t a n t c i r c u m s t a n c e s .T a k i n g a l l t h e i n j u r i e s s u s t a i n e d by P l a i n t i f f i n t oc o n s i d e r a t i o n , what s h o u l d b e a r e a s o n a b l e sum t o compensatehim f o r t h e p a i n , s u f f e r i n g and l o s s o f a m e n i t i e s ?Mr.Samuels s u b m i t t e d t h a t a n award o f 3,000,000 i s as t a r t i n g point i n the i n s t a n t case.He c i t e d f o r s u p p o r t t h efollowing cases.Hinds v Smith et a1 Khan's vol. 4 at p. 4Cologne v Ramcharan Khan's Vol. 4 at p. 152Bell v, Attorney GeneralKhan's Vol. 4 at pL 175Bell v Attorney General (supra) found p a r t i c u l a r f a v o u rwith Mr.Samuels who s u g g e s t e d t h a t t h e award i n B e l l would s e r v eas a s t a r t i n g p o i n t i n t h e Award f o r p a i n , s u f f e r i n g a n d l o s sof amenities i n the i n s t a n t case.On t h e o t h e r hand, M r .Henry f o r t h e D e f e n d a n t c o u n t e r e dby c i t i n g t h e f o l l o w i n g c a s e s a s b e i n g more a p p r o p r i a t e g u i d e s .Anderson v Watson Khan's Vol. 2 p. 188McLennon v. Williams et a1 Khan's Vol. 4 p, 161Brown v. Bryan eta1 Khan's vol. 4 p. 168C o n s e q u e n t l y h e s u g g e s t e d , award f o r P a i n , S u f f e r i n g and l o s so f a m e n i t i e s s h o u l d a t t r a c t a n award no h i g h e r t h a n a f i g u r eo f 650,000- 700,000.00AWARD MADE IN THE INSTANT CASEF o r P a i n and S u f f e r i n g a n d L o s s o f A m e n i t i e s i s 750,000.00.PROSPECTIVE MEDICAL CAREDr.Cheeks had t e s t i f i e d t h a t the a n n u l a r l i g a m e n t i n j u r yt o P l a i n t i f f ' s neck i m m e d i a t e l y i n f r o n t o f t h e s p i n a l c o r d a n dnerves of t h e upper limbs i s going t o cause e x a c e r b a t i o n s o fp a i n f u l s t i f f n e s s i n t h e neck a n d p a i n i n t h e r i g h t arm andf o r e a r m i n t e r m i t t e n t l y and a t t i m e s o f heavy e x e r t i o n s .Normalwear and t e a r i n y e a r s t o come w i l l f u r t h e r worsen t h e s i t u a t i o n .A 10% chance e x i s t s t h a t p l a i n t i f f w i l l r e q u i r e s p i n a l o p e r a t i o nb e c a u s e o f c o m p r e s s i o n damage t o s p i n a l c o r d o r n e r v e t o h i sr i g h t arm which a l r e a d y i s b e i n g i r r i t a t e d by c o n t a c t " w i t h