Daquille Missick v Chi Keung Yuen

• Jurisdiction: Bahamas
• Judge: Turner
• Judgment Date: 22 January 2024
• Docket Number: 2017/CLE/GEN/01486
• Court: Supreme Court (Bahamas)

BETWEEN

Daquille Missick aka Daqquille Hanna aka Bennett Hanna

Claimant

and

Chi Keung Yuen

(Trading as Canton House Chinese Restaurant)

Defendant

Before:

ACTING REGISTRAR Edmund Turner

2017/CLE/GEN/01486

IN THE SUPREME COURT

COMMON LAW & EQUITY DIVISION

Appearances:

Mr. Byron Woodside for the Claimant; and

Mr. Donovan Gibson for the Defendant

JUDGMENT

Turner

Acting Registrar

Background

1. The Claimant in this action commenced proceedings via Specially Indorsed Writ of Summons filed on 18^th December 2017, claiming personal injury, loss and damage. The Defendant entered an appearance to the Claimant's Claim by Notice and Memorandum of Appearance filed 13^th January 2020. The Defendant failed to file a Defense and the Claimant then entered Judgment in Default of Defense on 17^th May 2022. By Notice of Appointment of Assessment of Damages filed 5^th August 2022, the Claimant sought to have its damages assessed.

Evidence

2. The evidence produced on behalf of the Claimant comprised his testimony and the evidence of Dr. Colleen Fitzcharles-Bowe. It is important to note that the aforementioned evidence was not challenged by the Defendant.

The Law

3. It is seen in the case of Livingston v. Reynolds Coal Co. 5 App Case 25, per Lord Blackman defined damages as, i.e.:

‘that sum of money which will put the party who has been injured or who has suffered in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation.’

4. Reference is also made to the case of Nippon Yusen v Acme Shipping Corporation [1972] 1 WLR 74 CA. In this case it is seen that damages were not limited to the physical, they also included financial loss. In addition, an award of damages is not intended to put the Plaintiff in a better position than what he would have been in had the injury, loss, or damage not occurred.

5. The general principle is that he who asserts must prove, and hence the burden of proof is on the Claimant to demonstrate that the damage suffered and the amount he is seeking to recover in due on the balance or probabilities. Reference can be made to the case of Mullings v. Williams and another [2014] 1 BHS J. No. 135. As a result, a failure to prove a claim for any loss would reduce the Claimant's award of compensation.

General Damages

Pain, Suffering, and Loss of Amenities Burns

6. The Claimant suffered burns to his upper body. Reference is made to the Judicial Studies Board Guidelines, 16th Edition, Chapter 11, which refers top scarring of parts of the body. It highlights that burns are not dealt with separately and will be assessed based on inter alia, “degree of severity” disfigurement, pain and any physical or psychological injuries. Chapter 11 makes reference to factors that influence the size of the award in burn cases, and considering burns covering 40% of the body, compensation is likely to exceed £104,830.

7. The Claimant suffered second degree burns to 21-30% of the upper body which required a split-thickness skin graft. Counsel for the Claimant references The Judicial Council, Personal Injuries Guidelines of March 2021 (seen at Para 28 of Claimant's Closing Submissions), where it notes, i.e.:

‘Where significant burns cover 40% or more of the body awards are likely to exceed £200,000.

8. There is evidential fact that the Claimant's upper body remains nearly fully scarred from the burns he received and medical reports show that the burn scarring covers up to 30% of his body. The Court is of the view that, considering the fact that damages from burns received by the Claimant should approximate at last two thirds (2/3) of the £200,000 ($201,590.76), in today's figure. As a result, I agree with Counsel for the Claimant that a reasonable sum, after considering the authority of Weinberger v. Jacobs, where at the time in 1998 some £28,630.00 (£80,482.70 in today's money), is BSD$80,482.70 for general dames re burns received by the Claimant.

Dermatitis

9. The Claimant also submits a claim for Dermatitis, which he will suffer from, for the rest of his life. In the evidence of Dr. Fitzcharles-Bowe, she refers to Dermatitis on the Claimant's...