Warren v Harvey

• Jurisdiction: Bermuda
• Judgment Date: 09 January 2015
• Neutral Citation: [2015] SC Bda 1 Civ
• Date: 09 January 2015
• Docket Number: CIVIL JURISDICTION 2008: No. 311
• Court: Supreme Court (Bermuda)

[2015] SC (Bda) 1 Civ

In the Supreme Court of Bermuda

CIVIL JURISDICTION 2008: No. 311

Between:

Dennika Warren

Plaintiff

and

Tinee Harvey

Defendants

Mr. Jai Pachai, Wakefield Quin Limited, for the Plaintiff

Mr. Craig Rothwell, Cox Hallett Wilkinson Limited, for the Defendant

JUDGMENT (ASSESSMENT OF DAMAGES)

(In Court)

Introductory

1 The Plaintiff was injured in a road accident in which she was a pillion passenger on a motor cycle which was driven into by the Defendant on August 19, 2007. She primarily suffered what was described as a ‘degloving’ injury to the left heel and foot. Liability was admitted on February 11, 2008. The Plaintiff's Generally Endorsed Writ was issued on December 12, 2008.

2 Although the Plaintiff issued a Summons for Directions on December 21, 2009, voluntary discovery appears to have taken place before trial directions were ordered by consent on March 31, 2014 for a three day trial on quantum. The principal issues in controversy were:

• (1) the Plaintiff's claim for some $1.6 million by way of future loss of earning which the Defendant contended was wholly speculative;

• (2) whether or not the Plaintiff had failed to mitigate her loss by ignoring medical instructions;

• (3) the appropriate award for past loss of earnings;

• (4) what the appropriate award should be for pain and suffering;

• (5) for what period it was appropriate for interest on medical expenses to run.

The Evidence: an overview

3 The Plaintiff herself, the Plaintiff's mother Mrs. Debra Swan, Mr. Matthew Crumley of Argus Insurance Company Limited (‘Argus’), the Plaintiff's medical insurers and orthopaedic surgeon Dr. Joseph Froncioni gave evidence for the Plaintiff.

4 The Defendant's case was advanced by way of cross-examination of these witnesses and counsel's submissions. The Plaintiff's three witnesses all gave their evidence in a straightforward manner and I found them to be entirely credible.

5 The only witness whose evidence was vigorously challenged, albeit in an impressively sensitive manner, was the Plaintiff herself. She was in general terms a credible witness. However, she appeared to have difficulties in admitting certain weaknesses however, and Mr. Pachai effectively conceded that she had exaggerated her academic achievements at school. She was somewhat vague in describing a significant period of time when she was seemingly travelling without being gainfully employed, between High School and College, and in describing efforts to obtain employment after she gave birth to her daughter. This raised questions about the extent to which her claim for loss of earnings as a fitness instructor were entirely realistic, in the short term at least, having regard to the Plaintiff's relative youth the level of consistent application and self-discipline that self-employment requires.

6 It was obvious, however, that the Plaintiff's injuries had a significant impact on her because she placed considerable importance on her physical appearance, having been genuinely interested in acting in and after school. It was accepted that she will never be able to run again and will always have difficulty in standing for long periods. She also gave the distinct impression of being used to having her own way and appeared to me to be a person that would not easily adapt to a change of life options. She casually mentioned in cross-examination having had to get rid of around 200 pairs of shoes, which she described as her ‘best friend’, which her injuries made it impossible to wear (unless she has further highly risky surgery which no one positively recommends). However, her own misfortune seems to have generated an interest in the Plaintiff in helping others and she has worked with a brother on community projects and has done other voluntary work. The Plaintiff, a self-proclaimed ‘people person’ seemed clearly capable, when motivated, of being quite productive, and reflected an engaging blend of toughness and sensitivity.

7 It is common ground that the Plaintiff was only 21 at the time of the accident. She obtained a Diploma in Fitness and Lifestyle Management from CompuCollege in Halifax, Canada. I accept her evidence that she obtained some work experience there before returning to Bermuda in March, 2007. Back in Bermuda, she decided to start her business servicing ‘Plus size’ women. She produced documentation from some 9 clients most of whom she started working with in July 2007. That is evidence of an impressive capacity on the part of a 21 year old woman to “make things happen” at a stage of life when her peers were probably mostly either employed on a salaried basis or still in full-time education.

8 The Plaintiff was admitted to Hospital on August 19, 2007 and operated on by Dr. Chelvam. Her left foot was operated on and cream applied to facial injuries. She was discharged on August 27, 2007. An air cast boot was fitted in November, and she attended the fracture clinic over the next three months. In mid-January 2008 she saw a clinical psychologist. In a February 18, 2008 Report, Dr. Chelvam stated as follows:

‘ To conclude, Dennika has survived a life-altering and limb threatening injury to her left heel and sole….she has gone through a lot of psychological trauma and depression as a result of this injury…she is advised to have counselling by a psychologist as necessary…’

9 Although she was still using crutches, light work was recommended from March although the Plaintiff explained under cross-examination that she was still in pain. In November Dr. Chelvam reported significant improvement, save for loss of sensation in the heel which made a normal gait and running and jumping impossible. A foreign body was removed from the knuckle of her left index finger. The Plaintiff was able to wear sneakers and walk without a cane. The doctor recommended a review of her prognosis in two years' time.

10 The Defendant's insurers referred the Plaintiff to Dr. Froncioni in March 2009. He saw her on April 20, 2009 and recommended that she consult a plastic surgeon for her heel to alleviate ‘painful callosity’. He noted that all lacerations to her face and arms had healed well, but opined that she would never likely recover sensation in her heel, and was left with ‘ slightly unsightly’ scars on her left hand and right forearm. He recommended light duties only as she was ‘markedly handicapped’ in her ability to resume work as a fitness instructor. In May 2009, the Plaintiff started work as a bartender with MEF Ltd. at Tucker's Point. In July, she became covered by her employer's health insurance policy with Argus. Thereafter, the following treatment took place:

• (a) in October 2009 and February 2010, she had the callosity removed and related follow-up treatment from Dr. Hodgson in Bermuda. Prior to this surgery, having failed to travel to California to see a specialist in September, she saw a psychologist;

• (b) having returned to work in March 2010, the Plaintiff saw Dr. Hodgson in August. She was still unhappy with her heel and saw Assistant Professor Weg, a New York-based Orthopaedic Surgeon, who advised against further surgery because the ‘ heel area is a notoriously problematic area for plastic surgery’. He opined that she would be permanently partially disabled by the injury;

• (c) on March 10, 2011, the Plaintiff had an MRI which resulted in Drs. Pelham and Fernandez-Madrid carrying out debridement surgery on April 4, 2011, taking cultures and diagnosing the Plaintiff as suffering from a serious bone infection known as osteomyelitis. Dr. Froncioni testified that this infection often lay dormant for many years and was most likely attributable to the injuries sustained in the accident as opposed to any subsequent event;

• (d) on April 11, 2011, the Plaintiff was discharged from the NYU Hospital for Joint Diseases and required to administer intravenous antibiotics and stayed in New York until Dr. Pelham certified her fit to return to Bermuda on May 25, 2011, although she was still required to take antibiotics and warned not to stand for long periods if she returned to work;

• (e) on July 5, 2011, the Plaintiff was admitted to the King Edward VII Memorial Hospital (‘KEMH’) with an inflamed left heel. After verbally abusing KEMH staff, she was admitted to the NYU Medical Center where Drs. Levine and Pelham carried out various procedures, notably a free flap reconstruction using skin from her back, and leeching post-operatively. Medical notes recorded her admitting to anger management problems and being uncooperative and rude. She was discharged on September 2, 2011 but remained in New York for follow-up consultations until released by Dr. Pelham to return to Bermuda on March 6, 2012 under instructions to avoid any extensive physical activity;

• (f) Dr. Froncioni opined on November 30, 2012 that she could return to work as a bartender. Apart from discomfort when wearing closed shoes and an inability to run, her main permanent disability was ‘poor cosmesis’. He warned that further surgery to improve the appearance of the flap could have complications;

• (g) in late October 2013, the Plaintiff returned to NYU for a final assessment from Dr. Levine and also saw a psychotherapist. In his December 17, 2013 Report, Dr. Levine said the Plaintiff was ‘doing well overall’ and, understandably, cautioned her against having further risky surgery done by non-specialist institutions;

11 The Plaintiff gave birth to a daughter on October 28, 2012 and worked at the Cake Shop between December 2012 and August 2013. She has not worked since.

12 The medical expenses incurred by Argus on the Plaintiff's behalf total $679,905. The Defendant's attorneys tendered a cheque payable to Argus in this amount under cover of a September 19, 2014 letter (a) inviting Argus to accept the cheque in full and final settlement ‘ of all claims they may have in this matter’, and (b)...