Elva Lindsay v Goodmans Bay Development Company Ltd

• Jurisdiction: Bahamas
• Judge: Toote
• Judgment Date: 03 May 2022
• Docket Number: 2004/CLE/gen/00492
• Court: Supreme Court (Bahamas)

BETWEEN

Elva Lindsay

Plaintiff

and

Goodmans Bay Development Company Ltd.

Defendant

Before:

Deputy Registrar Mr. Renaldo Toote

2004/CLE/gen/00492

IN THE SUPREME COURT

Common Law and Equity Division

Appearances:

Cyril Ebong with Sidney Campbell for the Plaintiff

Wynsome Carey with Darzhon Rolle for the Defendant

ASSESSMENT OF DAMAGES

Toote, Deputy Registrar

1 . This is an assessment of damages for personal injuries and loss sustained by the Plaintiff as a result of a slip and fall accident which occurred at the Defendant's building complex, known as Goodman's Bay Corporate Center. The issue of liability took place before Winder J (as he then was) on 15 October 2020 and judgment was given in favour of the Plaintiff on 7 December 2020.

2 . At the assessment, the sole witness for the Plaintiff was the Plaintiff herself. Her amended witness statement filed on 25 February 2022 stood as her evidence-in-chief and she was crossexamined and re-examined in accordance with the usual practice. A writ of subpoena ad testificandum dated 6 December 2021 was issued and served to compel the attendance of Dr. Clyde Munnings (“Dr. Munnings”) to give evidence on behalf of the Plaintiff, but Dr. Munnings did not obey the subpoena. The Defendant called no witnesses.

3 . Both parties relied on the contents of an agreed bundle of documents filed on 14 September 2020 (the “Agreed Bundle”) which was prepared in accordance with Practice Direction No. 2 (1974-1978). Prior to the commencement of the assessment, the Defendant served a notice of objection on the Plaintiff filed on 30 November 2021 (the “Notice of Objection”) objecting to the medical reports prepared by Dr. Munnings in the Agreed Bundle being admitted as evidence of their contents and requiring them to be proved.

Background

4 . For the purposes of the summary of the background which follows, I have had regard to the contents of the Agreed Bundle (other than the documents in the Agreed Bundle objected to by the Defendant) and the testimony of the Plaintiff.

5 . The Plaintiff, who was born on 26 January 1951, was employed by Canadian Imperial Bank of Commerce in 2001 as a receptionist. Canadian Imperial Bank of Commerce were then tenants of the Defendant and maintained an office at its premises.

6 . On 29 June 2001, the Plaintiff was accompanying her supervisor, Carolyn Longley, out of the back door of the Defendant's premises when she slipped on the wet tiled floor and fell heavily, twisting her ankle and hitting her head on the tiled floor (the “Index Accident”). She blacked out for a split second and when she got up, she felt a “big lump” on her head. At the time, the Plaintiff was 50 years old and weighed 245 pounds.

7 . Following unsuccessful attempts at settlement, the Plaintiff commenced this action by a generally indorsed writ of summons filed on 20 April 2004. The Plaintiff filed an amended statement of claim on 20 November 2015 formulating a claim in negligence alleging occupier's liability. A defence was filed by the Defendant on 16 November 2017 denying liability for negligence.

8 . On 15 October 2020, the trial on the issue of liability took place before Winder J (as he then was). The Plaintiff was the only witness in her case. At the close of the Plaintiff's case, the Defendant elected not to call any witnesses and to instead make a submission of no case to answer. That submission failed. Resultantly, judgment for damages to be assessed was given in favour of the Plaintiff on 7 December 2020 and the matter proceeded to the assessment of damages herein.

9 . The Plaintiff's amended statement of claim pleaded that the following injuries and loss and damage were sustained and/or are being sustained by her as a result of the Index Accident:

PARTICULARS OF INJURIES

9. As a result of the accident, the Plaintiff sustained the following injuries:

• i. Closed head injury

• ii. Cerebral concussion

• iii. Post concussive syndrome

• iv. A cervical strain/sprain

• v. Cephalgia and cervical radiculopathy

• vi. Lower back pain syndrome

• vii. Herniated disc at C5, C6 and C6 and C7 after MRI scan

• viii. Lumbrosacral degenerative disc disease L5 at S1 with a bulging disc at that level

• ix. Accompanying symptom resulting from fall include relenting headaches, dizziness, spasms, shoulder pain, low back pain, lightheadedness, memory loss, poor concentration and poor attention.

PARTICULARS OF LOSS AND DAMAGES

10 By reason of the matter aforesaid, the Plaintiff has sustained serious personal injuries, loss and damages,

a. The Plaintiff was fifty (50) years of age at the time of the accident, having been born on January 26, 1951. The Plaintiff was walking on the tiled floor in the premises owned by the Defendant situated at Goodman's Bay Corporate Centre when she slipped and fell heavily on a wet surface therein.

b. Following the accident the Plaintiff received medical attention at Doctors Hospital where she was X-rayed, given MRI treatments, given medication, advised to follow-up on Orthopedic Treatment and was evaluated. The Plaintiff further, underwent medical advice and treatments.

c. As a result of the injuries sustained the Plaintiff was required to undergo treatments which resulted in a substantial amount of time off from work

d. Between the time off from the accident and the forced resignation of the Plaintiff by her employer the Plaintiff had accumulated 233 days off from work as sick days which resulted in her employer asking her to resign otherwise they would have to dismiss her from her job

e. The Plaintiff continues to suffer pain, loss of amenities and loss of earning;

f. Due to the Plaintiff's injuries and her age she is unable to secure new employment to the extent that she was previously employed. Thereby she would not be able to earn a normal salary in the future.

g. The Plaintiff has suffered financial loss as a result of the accident, namely, the cost of medical consultation, treatment, physiotherapy and medication.

h. The Plaintiff claims interest on her special damages from the date of loss of employment to payment or judgment.

i. The Plaintiff intends to rely on the evidence and medical report of Dr. Clyde A. Munnings Consultant Neurologist at Doctor's Hospital and other medical reports.

j. The Plaintiff further claims interest pursuant to the Civil Procedure (Award of Interest) Act, 1992 from the date of judgment until liquidation thereto.

SPECIAL DAMAGES

GENERAL DAMAGES

Pain and Suffering

Loss of Amenities

Future Medical Expense

AND THE PLAINTIFF CLAIMS

Medical Expenses	$4,748.00
Loss of Earning	$105,000.00
Airline Tickets to and from USA	$998.00
Living accommodation while in USA	$858.00

Ongoing Expenses
Medical follow up	$4,800.00
Physical therapy	$24,000.00

Special Damages	$140,404.00
General Damages
Interest Pursuant to the Civil Procedure (Award of interest) Act
1992
Cost
Further or other relief as the Court deems necessary

10 . While it is not pleaded in her amended statement of claim, the Plaintiff claimed that she suffered a cerebral hemorrhage as a consequence of the Index Accident and developed hypertension and diabetes as a result of the Index Accident.

11 . The Plaintiff maintained she was healthy, pain-free and not on medication before the Index Accident and said that she was immediately symptomatic after the Index Accident. There was notable inconsistencies in her evidence as to whether she suffered from diabetes, hypertension, and early onset Alzheimer's prior to the Index Accident. There was also a minor discrepancy between her pleaded case and her evidence as to precisely when she began experiencing symptoms, but this was not material. On her evidence, she began experiencing headaches the following day, and a “terrible burning sensation”, which led her to attend Doctor's Hospital in New Providence on 30 June 2001.

12 . According to the Plaintiff, after “a battery of tests, x-rays and MRIs” at Doctor's Hospital, Dr. Iferenta, her attending emergency physician, determined she had a cerebral hemorrhage, though she (the Plaintiff) declined the recommended surgery, and she was kept at Doctors Hospital “for a very long time” on “large doses of medication” while receiving treatment. Neither Dr. Iferenta's report nor any invoices or receipts regarding her stay at Doctor's Hospital were produced in evidence.

13 . The Plaintiff's evidence was that, following her discharge from Doctors Hospital, she travelled to the United States for medical treatment and, on her return to Nassau, she saw Dr. Munnings, a consultant neurologist at Doctor's Hospital, “for a long time” for headaches. In questioning by the Court, the Plaintiff said that she visited Dr. Munnings because of her cerebral hemorrhage and he agreed with Dr. Iferenta that she did indeed have a cerebral hemorrhage.

14 . The Plaintiff said that she was put on “numerous medications” (to adopt her words) following the Index Accident including medications to prevent seizures. The Plaintiff did not particularize the medications that she was placed on in her own testimony save that in questioning by her own counsel, the Plaintiff said that she was prescribed neurotropic medications including meperidine, gabapentin, butalbital and Skelaxin.

15 . According to the Plaintiff, after the Index Accident, she was “in and out of hospital” and “lost a lot of time from work” engaging in therapy, attending doctors and trying to address memory loss that she suffered as a result of the Index Accident. The Plaintiff provided limited particulars regarding this in her evidence. Notably, she did not verify the pleaded allegation that she accumulated 233 days off from work at Canadian Imperial Bank of Commerce as sick days.

16 . By letter dated 25 November 2003,...