Jennings v Ball and Purvis Ltd 1996 Civil Jur. No. 451

• Jurisdiction: Bermuda
• Judgment Date: 21 February 2002
• Docket Number: Civil Jurisdiction 1996 No. 451
• Date: 21 February 2002
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

In the Supreme Court of Bermuda

Simmons, J

Simmons, J

Civil Jurisdiction 1996 No. 451

Civil Jurisdiction 1996 No. 451

BETWEEN:

Garita Lynn Jennings

Plaintiff

-and-

Eugene Mansfield Ball

First Defendant

Purvis Limited

Second Defendant

BETWEEN:

Garita Lynn Jennings

Plaintiff

-and-

Eugene Mansfield Ball

First Defendant

Purvis Limited

Second Defendant

Mr. J. Pachai for the Plaintiff

Mr. J. Cooper for the Defendants

Mr. J. Pachai for the Plaintiff

Mr. J. Cooper for the Defendants

Schneider v EeisovitchUNK [1960] 1 All ER 169

Goring v Faijo 1989 Civil Jur. No. 219

Smith v Manchester Corp [1974] 17 KLR 1

Robeson v Liverpool City CouncilUNK [1993] PIQR Q78

Moeliker v A. Reyrolle & Co. Ltd.

Foster v Tyne & Wear CC [1986] 1 All ER

Allen v Eubanks [1998] CILR 190

Wells v Wells [1998] 1 AC

Crockwell v Haley 1992 Civil App. No. 23

Cookson v KnowlesELR [1979] AC 556

Personal injury — Road traffic accident — Damages — Broken leg leading to amputation below the knee — Expenses of family members — Loss of future earnings — Cost of prosthetic equipment

JUDGMENT

HISTORY

This personal injury action arises out of a road traffic accident, which occurred on the 6^th November 1991. The plaintiff was riding a motorcycle on Middle Road in Devonshire when she was struck by the second defendant's van, which at the time was being driven by the first defendant. Liability for the accident is not in dispute.

As a result of the collision the plaintiff sustained a compound comminuted fracture of the tibia and fibula of the right leg with vascular compromise, along with gross soft tissue damage. The leg was in fact almost severed. She was transferred to the Duke University Medical Center (Duke) in North Carolina in the United States of America. She hoped her foot could be saved, however, on 9^th November 1991 a below knee amputation was carried out. There is no dispute that the amputation was necessary.

The plaintiff was transferred to Duke's Rehabilitation Center on the 14^th November 1991 by her orthopaedic surgeon. His hope was that she would obtain the latest in prosthetic design. The plan was for her to be fitted with a prosthesis, have gait training and obtain increased functional independence. She was fitted with a hard socket below knee prosthesis. Through out her pre and post- operative ordeal she was observed by her doctors to be a delightful and brave young woman. She exceeded expectation in rehabilitation. She was very motivated and her participation was described as excellent. Having done well through out her stay, the plaintiff was discharged from rehabilitation on the 29^th November 1991. As she was to return to Bermuda, she was not referred to the Duke Amputee Clinic. She was however given instructions to contact the Rehabilitation Center to keep them apprised of her progress and of any problems.

THE CLAIM FOR SPECIAL DAMAGES

The claim for general damages has been agreed in the sum of $95,000 with interest thereon at 3¹/₂ % from the 1^st April 1992. Other matters of special damages have also been agreed. The following are the matters of special damages that are in contention:

• (1) expenses incurred by family members who accompanied the plaintiff on several trips to Duke between February 1992 and October 1998

• (2) handicap in the market resulting in loss of future earnings

• (3) cost of future prosthetic equipment

THE PLAINTIFF

At the time of the accident the plaintiff was 17 years of age having been born on 3^rd September 1974. She had graduated high school and was attending Bermuda High School's preparatory year prior to admission to college. Despite her unfortunate loss of limb, she went on to college in Huntsville, Alabama in the United States of America where she obtained her Bachelor of Science degree in Zoology with a minor in chemistry in 1996. On her return to Bermuda she first worked at the Biological Station. She then taught math at the Sandy's Secondary School.

In the fall of 1997 she then returned to university in Huntsville to pursue a master's degree in education specialising in chemistry. That degree was conferred on her in 1999. She taught in an area high school for approximately 3 months. She then returned to Bermuda where she commenced teaching general science at the Cedarbridge Academy. At the time of trial the plaintiff was 25 years of age and was engaged to be married. She had become the mother of one child, a daughter born on 28^th March 2000. The plaintiff was on maternity leave from February 11^th 2000, and expected to return to teach in the fall. None of these facts were in dispute.

EXPENSES INCURRED BY FAMILY

As mentioned above the plaintiff was flown to Duke in the hopes of saving her nearly severed foot. The Defendants do not dispute that the attempt was justified. There were 7 trips in all made to Duke. All trips since the first trip were either for fittings for a new prosthesis or for adjustments to a prosthesis. A limited dispute arises in respect of the expenses relating to the first 2 trips made to Duke by the plaintiff and her family. The expenses for food and long distance telephone calls pertaining to the first and second trip are disputed All claims in respect to the father are disputed in so far as the second trip is concerned. The defendants dispute seriatim the following claims made by the plaintiff in respect to the latter 5 of the 7 trips that the plaintiff made to Duke:

(a)	Air fares	$4,342.85
(b)	Accommodation	$1,244.10
(c)	Food	$4,850.00
(d)	Car rental (petrol)	$2,200.06
(e)	Father's lost wages	$15,580.00

The basis of the defendants' dispute over these claims is that they were, depending on their nature:

• (1) not in fact incurred

• (2) unnecessary and/or avoidable

• (3) unreasonable in amount

• (4) too remote in law

• (5) too remote as a consequence of intervening events

The defendants contend that the disputed items arose because members of the plaintiff's family accompanied her to Duke voluntarily and not out of the necessity to assist in the plaintiff's care. They further contend that the plaintiff did not need accompaniment after the second trip to Duke. They further argue that to the extent that assistance was required by the plaintiff for the latter trips, the plaintiff could have incurred less expenses. In so far as the father's loss of income is concerned, the defendants' position is that for trips 2,3,5and 6 it was not necessary for the defendant's father to accompany her at all.

The car rental was in the defendants' estimation an un necessary expense. They contend that the plaintiff could have caught taxis to and from her appointments at Duke, and she could have driven her self to Duke since she had a drivers licence and a car and was in university nearby in a bordering state.

They argue further that the defendant's mother was the appropriate person to accompany her solely on the second trip. Their position is that the father and brother's attendance was not necessary, nor were their room and board expenses. While they accept that expenses for food are allowable, they do not agree that the defendant's father ought to have assigned a per diem food allowance in the sum of $40.00 with no supporting documentation.

Both counsel referred to the case of Schneider -v- EeisovitchUNK[1960] 1 All ER 169 @ 174 as the leading case which lay down the test for the recovery of damages for out of pocket expenses of a third party. That test has since which been considered and applied in Bermuda by Brown A.J. in Jane Goring -v- Marie FaijoCiv. Jur. 1989 No. 219. In the leading case Schneider -v- Eeisovitch at page 174, Paull J. having considered a line of cases on the subject clarified the test in the following way:

‘Before such a sum can be recovered the plaintiff must show first that the services rendered were reasonably necessary as a consequence of the tortfeasor's tort; secondly that the out of pocket expenses of the friend or friends who rendered the services are reasonable bearing in mind all of the circumstances including whether expenses would have been incurred had the friend or friends not assisted, and thirdly that the plaintiff undertakes to pay the sum awarded to the friend or friends.’

I have considered the cases referred to by counsel on this topic. I adopt the above-cited test as the applicable test. I shall apply this test to the items in dispute for each trip, dealing with each in turn.

TRIP # 1 November 8^th–December 1^st 1991

The long distance telephone call costs are disputed in the sum of $403.75. Counsel for the defendants suggest that $100 is a reasonable sum. In his evidence the defendant's father, Garreth Dill said that he made the calls both to inform family of the plaintiff's progress because they were concerned, and to speak to his boss. Mr Dill did not identify which of the calls were to his boss. In applying the test, I must bear in mind that the defendants have admitted that the parents' attendance was necessary. I have to consider whether the calls were reasonable in all of the circumstances. It was reasonable for Mr. Dill to contact his minor son, the plaintiff's brother, and it was reasonable for him to have contacted his employer. Very few of the calls appear to have been unduly long, however it was the frequency of the calls and the different numbers called that resulted in the disputed sum. The number and frequency of the calls was in my view excessive. Doing the best that I can, I find that one third of the costs of the overseas calls is a reasonable sum in all the circumstances.

The defendants dispute food costs in the sum of $40 per day per person for a total of $1,200 for this trip. They contend that $20 per person per day is a reasonable sum. The plaintiff's father was unable to produce receipts for the actual food expenditures. In his evidence...