Goring v Feijo 1989 Civil Jur. No. 219

• Jurisdiction: Bermuda
• Judgment Date: 30 June 1992
• Date: 30 June 1992
• Docket Number: Civil Jurisdiction 1989 No. 219
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Brown, Acting J.

Civil Jurisdiction 1989 No. 219

Jane Goring

Plaintiff

and

Marie Feijo

Defendant

Mr. Arthur Hodgson for the Plaintiff

Mr. John Cooper for the Defendant

Schneider v EisovitchUNK [1960] 1 All ER 169

Housecroft v Burnett [1986] 1 All ER

Ilkiw v SamuelsUNK [1963] 2 All ER 879

Kelland v Lamer 1987 Civil Jur. No. 262

Daly v General Steam Navigation Co. Ltd.UNK [1980] 3 All ER 696

Harding v Watts Tyre & Rubber Co. Ltd (unreported)

Personal injury — Damages — 74 year old woman struck by car — Dislocated left hip, compound dislocation of left knee, broken ankle, broken pelvis, broken ribs, lacerations, skin grafting — Over 5 years after accident, still in constant pain — Previously independent, now dependent on others for assistance in dressing, feeding, etc. — Special damages included travel expenses for relatives to be at injured person's bedside and their subsequent loss of earnings — Interest rate on special damages

The Plaintiff Jane Goring will soon be 80. On the 1st February 1987 when she was 74 she suffered serious multiple injuries when she was the victim of a bizarre accident when she was struck several times by a vehicle driven by the defendant.

In the view of the nature of the accident liability not surprisingly, was admitted and the Court is simply asked to assess her damages. I shall detail her actual injuries later; suffice it to say that they were very severe and according to her surgeon Dr. Stubbs she was in danger of dying shortly after the accident.

I propose firstly to deal with the special damages claimed by her. A substantial portion of these have been agreed and the agreed amounts can be summarized as follows:-

Statement of Claim Page 2
1) Medical Expenses	$ 8,736.98
2) Medical Equipment	$ 188.35

Statement of Claim Pages 3 and 4
1) Travel claims	$ 3,606.68
2) Visitors permits	$ 210.00
3) Medication	$ 130.00

Statement of Claim Page 5
1) Long distance telephone calls	$ 528.25
2) Work permit	$ 175.00
	$13,575.26

The disputed items of special damage I will consider and deal with one by one as they appear in the statement of claim. The relevant statement of claim is the further re-amended statement of claim as further re-amended pursuant to a Court order of the 5th of September 1991 and also further amended at the commencement of the trial. One matter I can dispose of shortly is the charge of $101.00 for a dental examination. Counsel for the defendant rightly I think agreed to this on the basis that a dental examination was reasonable and I allow this figure. The prospective future dental charges I will consider later.

When considering disputed travel claims I shall also deal with the claims for the plaintiff's daughter's loss of wages, as these claims stand or fall together. Beginning shortly after the accident these claims are:-

1) Travel Costs—Gwendolyn and Frederick Goring February 1987

This first disputed special damage claim relates to travel costs for Gwendolyn Goring and Frederick Goring the plaintiff's daughter and son respectively in February 1987. Both the plaintiff's children reside in Canada and both naturally flew down shortly after the accident to be with their mother.

Since there are 2 Frederick Goring's, one the plaintiff's son and one her nephew, I shall respectively refer to them as big Freddie and little Freddie as they have always been so called by the plaintiff and were referred to throughout the trial as such.

I heard detailed evidence from Gwendolyn on why she felt it necessary for her and her brother to incur these expenses. Gwendolyn is a nurse who has specialised in and now teaches emergency care and she kept in close touch with the hospital in Bermuda after she was told of the accident. She was she says told of her mother's condition and that she was in intensive care and she was also told about 2 days after the accident that the next 48 hours would be a crucial time for her mother as the medical staff had done all they could and that much now depended on the plaintiff's own will to live. Gwendolyn stated that in her experience a person in her mother's position needs encouragement in their fight for survival and that this encouragement obviously best comes from persons close to the injured person. Consequently she and her brother both decided to fly down to Bermuda to be with their mother. big Freddie arriving on the 4th of February 1987 and Gwendolyn on the 5th.

I have considered Gwendolyn's evidence on this issue and note also that Dr. Stubbs both in his evidence and in his agreed report dated the 26th June 1987 stated that it was essential that the Plaintiff be visited by her children.

Both counsel referred me to Schneider v EisovitchUNK(1960) 1 All E.R. p. 169 in support of their respective submissions. Mr. Cooper also referred me to Walker v Mullen(1984) Times L.R. January 19th 1984. This latter case is clearly distinguishable on the facts from the present case where we are dealing with a plaintiff who was so critically ill that as Dr. Stubbs stated in his report, ‘The nature of her multiple injuries made her expectation of life so tenuous in the early post-injury period that it was essential she be visited by her daughter Gwendolyn from Montreal and her son Frederick from Toronto’. No such crisis presented itself in Walker v Mullen where although it was clear that claim for losses arising from the plaintiff father's decision to stay with his son might be reasonable it could not be said to be necessary.

I have considered Schneider v Eisovitch particularly the tests set out on page 174 paragraphs C to E and am satisfied that the expenses were not only reasonably but also necessarily incurred and were a direct consequence of the tort and that they are recoverable as is Gwendolyn's loss of wages for the two week period she stayed in Bermuda. I am satisfied with the explanation she gave as to whey she stayed the extra week. I have allowed the plaintiff's amendment to include the extra week's stay even though it was made at the eleventh hour as I am satisfied that doing so raises no prejudice to the defendant. I shall say more on the plaintiff's last minute amendments in due course.

2) Travel costs—Gwendolyn—March 1987

The next travel item in dispute is a claim for a return air ticket for Gwendolyn from Montreal–Bermuda–Montreal Bermuda in March 1987. I have considered Gwendolyn's evidence on this issue and basically whilst I feel Gwendolyn thought it was reasonable for her to fly to see her mother who was worrying over finances and whether or not she would be able to cope on her own, I am not satisfied that it was reasonably necessary for her to be with her mother at that time. Gwendolyn had been in Bermuda for 2 weeks after the 5th of February 1987 and could at that time have made arrangements to see the plaintiff's landlady and taken steps to deal with payment of her other bills. This claim and the consequent claim for loss of earnings arising from it are disallowed.

3) Travel costs—Gwendolyn—March 1988

A further claim for a return airfare for Gwendolyn Montreal–Bermuda–Montreal is made for a trip taken in March 1988 after the plaintiff had had a total left hip replacement. Gwendolyn gave evidence as to why she considered this trip was necessary. I have also considered the report of Dr. Couper dated the 24th March 1988. Here was an old lady who had undergone serious surgery. It seems that it was essential she spend a period of convalescence and this she was to spend naturally enough with her daughter. I am satisfied that at this time Gwendolyn was correct in thinking her mother could not travel on her own even with airline assistance and the only alternative to Gwendolyn flying down to pick up her mother and take her back to Canada was to hire a private nurse to travel with her and to pay the nurse's airfare. This would have resulted in greater expense. I am satisfied this trip was necessary and in taking the course she adopted the plaintiff mitigated her loss.

I heard Gwendolyn's evidence as to why she stayed for about a week and I am satisfied that her claim for loss of earnings for a week was reasonable and it is allowed along with the sum claimed for the airfares.

4) Travel costs—Big Freddie—October 1988

The next disputed airfare is one for big Freddie in October 1988. By October 1988 Gwendolyn had arranged for Jacqueline John a niece of the plaintiff who lived in Dominica to look after the plaintiff. It was thought by her that big Freddie should travel down to Bermuda with the plaintiff and Jacqueline to help Jacqueline settle in. I can appreciate that this might have seemed sensible but I cannot accept that the expense was reasonably necessary and it is not allowed.

5) Travel costs Gwendolyn—December 1988

I heard the reasons for this trip but am satisfied that any concerns Gwendolyn had could have been addressed by telephone and the claim for reimbursement of travel costs and loss of earnings is disallowed.

6) Travel costs—Gwendolyn October 1989

In October 1989 Jacqueline wished to return to Dominica and also her permit to work in Bermuda had expired. She had to return to Dominica via Canada and she travelled up with the plaintiff so that plaintiff could stay with Gwendolyn until new arrangements could be made for the plaintiff's nephew little Freddie to stay with the plaintiff in Bermuda. Gwendolyn claimed her travel was reasonably necessary to ease Jacqueline's passage through Canadian immigration. She gave no other reason for this trip and I do not accept that it was reasonably necessary as she claimed and accordingly the claim in respect of it and the consequent loss of earnings is denied.

7) Travel costs—Big Freddie March/April 1992

The 'penultimate trip in dispute is one taken by big Freddie in March/April 1992. Big Freddie on this...