Henderson J
IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN IN GEORGE TOWN, GRAND CAYMAN CAUSE NO. 768 OF 1999 BETWEEN WILLIAM LORENZO CARTER Plaintiff - and - SCOTT'S INDUSTRIES LIMITED Defendant ORAL REASONS FOR JUDGMENT of THE HONOURABLE MR. JUSTICE HENDERSON on the 2nd day of October 2002, George Town, Grand Cayman. APPEARANCES: For the PLAINTIFF: MR. H. ROBINSON For the DEFENDANT: MR. J. TARBOTON WEDNESDAY, OCTOBER 2, 2002 UPON COMMENCING ORAL REASONS FOR JUDGMENT HENDERSON, J. (Orally): The plaintiff, William Lorenzo Carter, was born in Cuba on February 12th, 1935. After a long and industrious career as a seaman, as a labourer at various odd jobs (to which I will refer later) and as a contractor in the painting business, Mr. Carter, in October of 1998, suffered a severe knee injury. The injury has been described as "an evulsion of the posterior tibial spine with a segment of the posterior plateau of the tibia." The questions of liability and damages have been severed. My brother Kellock has now found the defendant liable for 50 percent of the damage suffered by the plaintiff. I have conducted the assessment of damage. Mr. Carter is now a naturalized Caymanian. He attended primary school and secondary school in Cuba but has no technical or vocational training. He came here at the age of 20 in (HENDERSON, J. -- Oral Reasons for Judgment)
After working at a variety of labouring jobs, he took up a career on the sea working as a mess man, then as an ordinary seaman, then as an able seaman, and finally as a junior third mate. In 1978 he retired from the sea and began working for a variety of contractors on Grand Cayman Island. He was paid an hourly wage. Eventually, Mr. Carter's industriousness and quality of work enabled him to start his own business, which he called Carter's Painting. He received contract work regularly from both government sources and private individuals and corporations. He has painted schools, police stations, this court building and other government offices, including the Governor's residence on several occasions. He has also been successful in securing contracts for the painting of private residences and other buildings such as restaurants and office buildings. Mr. Carter, whom I found to be a credible witness in most respects, explained that he has painted both single-story and multi-story buildings, including many of the latter. This (HENDERSON, J. -- Oral Reasons for Judgment) work requires him to climb ladders and scaffolding. The contracts were done on a labour-only basis, meaning that the building owner would provide all of the paint and other materials and Mr. Carter would be paid for his labour. He usually worked alone, to the extent that other painters took to referring to him as the "one man force". I accept his evidence that he obtained this work because of his personal reputation for good work and also because of his reputation for honesty. Often he would be required to work alone inside a residence while the owners were absent. He has said that he was paid roughly $15 per hour. Mr. Carter kept no records of any consequence. There is other evidence that his rate of pay was approximately 10 to $15 per hour. I estimate his hourly rate at $12.50 an hour, although the way in which I have approached this damage assessment does not make that a material point. As I have said, he kept no accounts; there was no need for it. He has no liability to pay income tax in the Cayman Islands and no legal (HENDERSON, J. -- Oral Reasons for Judgment) obligation to keep books of account at all. In preparation of his damage claim, Mr. Carter compiled from memory and from the odd scrap of paper in his possession a list of the jobs he has worked upon since 1994. He was cross-examined extensively on this list. I accept Mr. Carter's evidence unequivocally of his earnings prior to the date of the accident. In particular, I was impressed with his assertion that many of the jobs were performed for prominent members of the community, that the defendant had the applicable lists in its possession for some time, and that the defendant could have called evidence to counter the credibility of these lists if such evidence were available. I also note that, in those cases where Mr. Carter's lists compiled from memory can be compared directly to government records, he has on some, although not all, occasions understated the value of the income derived from that source. Combined with his demeanour, these factors convince me that he is telling the truth with respect to his earnings prior to the accident. (HENDERSON, J. -- Oral Reasons for Judgment) 1998 was a special year for Mr. Carter. He visited the land of his birth for the first time in 43 years. He spent two months there. He was then ill for approximately two months with kidney stones. He continued working after recovery from the illness until, on October 8th, 1998, he suffered the accident which is the subject of this proceeding. On that day he went to the premises of the defendant on North Sound Road. After driving his vehicle on to the inspection platform, under the direction of an employee of Scott's Industries, Mr. Carter alighted from the driver's door on the left-hand side. There was no platform upon which he could stand, and he fell into the inspection pit - a drop of almost six feet from the bottom of the car. In doing so, he hit his right knee on the concrete floor. I find that it was a severe injury. He immediately felt severe pain and weakness in the right leg and found himself unable to stand, at least without considerable assistance. After a visit to the hospital, his right (HENDERSON, J. -- Oral Reasons for Judgment) leg was placed in a half cast to keep the knee stable. He was sent home on two crutches with instructions to put no weight on the injured leg. On October 15th, 1998, an operation was performed on Mr. Carter's right knee. I make no finding as to how or to what degree of competence that operation was performed, as it may be the subject of a subsequent claim for contribution and indemnity by this defendant. Mr. Carter was discharged from the hospital that afternoon, again on two crutches, and was given a prescription for painkillers to reduce the severe pain. I note that no prescriptions of any type have been entered in evidence. Notwithstanding that, I am satisfied from my assessment of his credibility that he was using prescription painkillers on a regular basis. He remained on two crutches for almost a year. During that time he commenced physiotherapy. In all, he attended about 78 physiotherapy sessions during the first year after the accident. By the end of the first year, he was able (HENDERSON, J. -- Oral Reasons for Judgment) to walk without crutches but using a cane. He still requires the cane to walk. He still experiences severe pain in his right leg, particularly when the weather is wet and cloudy (a not infrequent occurrence in these islands). He continues to exercise with a view to making his leg stronger and continues to use the cane. I accept his evidence that when Mr. Carter climbs stairs, or for that matter a ladder, he places the weight on his left leg then lifts the right leg up and places it beside the left. He repeats that process one step at a time. He finds himself unable to this day to bend the right leg at the knee. He agrees that he can sometimes climb two or three rungs on a step ladder and has done so to clean out gutters, for example, at his home. He has to do this slowly and cautiously and, significantly, he has to rest after a short period of exertion. This contrasts with how he used to work before the accident. As a painter, he would be required to climb on to and off scaffolding and up very tall ladders on a regular basis. He was required to climb on to roofs and to (HENDERSON, J. -- Oral Reasons for Judgment) maneuver uneven surfaces, some of them at relatively steep angles and great height. This, of course, is a dangerous task which would be much more dangerous for Mr. Carter in his present condition. The pain, which is still with him, he treats with a variety of prescription and non prescription medications, including: Oyster shell calcium; Bayer aspirin, of which he takes from six to ten a day; Tylenol arthritis pain tablets; sports cream; Arctic Ice Pain Free cream; and Advil. I viewed a surveillance video of Mr. Carter which consisted of extracts taken from observations by a private investigator hired by the defendant. That investigator conducted personal surveillance on Mr. Carter, mostly at his residence, for a period of approximately 95 hours. The video showed that Mr. Carter was able to work, at least for relatively brief periods of time, at garden tasks. He was seen (using the cane) hauling a wheelbarrow with some trash in it. He was seen filling buckets with trash and carrying them. He was seen walking (with the aid of the cane) (HENDERSON, J. -- Oral Reasons for Judgment) on a road. I also accept the evidence of Mr. Lewis that he saw Mr. Carter on a ladder cleaning out the gutters; the plaintiff admits that. The dispute between them, which is of some significance, is as to how high on the ladder Mr. Carter mounted. Mr. Carter says he only went up two or three steps, which is all he could manage. The investigator has sworn that he saw Mr. Carter at the top of the ladder. In cross-examination, he estimated that as being eight or nine steps. On this point, I prefer the evidence of Mr. Carter to that of the investigator. There is no videotape evidence of Mr. Carter on the ladder. There were some aspects of the investigator's evidence that caused me some concern. I accept that Mr. Carter did not mount that step ladder more than three rungs. I was not impressed with the evidence of Lee McLaughlin. His demeanour, and his apparent bias stemming from an earlier dispute over money with Mr. Carter and/or a dispute with Mr. Carter over an injury McLaughlin (HENDERSON, J. -- Oral Reasons for Judgment) suffered while working for him, convinces me that the evidence of Mr. McLaughlin is unreliable where it conflicts with that of the plaintiff. I turn briefly to the medical evidence. None of the doctors were cross-examined. All of this evidence has been given in the form of written medical reports (which is provided for by the Rules of Court in this jurisdiction). On April 13th, 1999, that is to say some seven months after the accident, Dr. S. Richie, an orthopedic surgeon, reported upon the findings of his examination of the plaintiff. He concluded that Mr. Carter had sustained a major injury of the right knee. He found that the range of motion in the knee seven months after the accident was between 10 and 50 degrees. At physiotherapy he observed that Mr. Carter was able to increase that range of motion to approximately 65 degrees with a lot of pushing and pulling. He commented: In the long run, I do not expect this man to regain full motion. He still has discomfort and aching in (HENDERSON, J. -- Oral Reasons for Judgment) the knees which requires Motrin and Advil, but he does not have any night pain. I would not expect him to return to his previous occupation as a house and building painter. I would not expect that he would be able to climb ladders or scaffolding because of his stiff knee. This knee will improve for another six months to a year before he reaches maximum rehabilitation. In a report dated July 7th, 2000, Dr. R. Gordon, an orthopedic surgeon, reported on his own examination of the plaintiff. He termed the result of the knee surgery as "very poor". He said: On physical exam one can see that he has marked restricted range of motion, has poor patellar motion and has a poorly functioning right knee. This gentleman will be permanently partially disabled. He will be unable to climb ladders, crouch, run, climb or do the (HENDERSON, J. -- Oral Reasons for Judgment) majority of the job that he was doing prior to his injury. He will also have pain and will need pain medication in the future. This gentleman will also develop post traumatic osteoarthritis in his knee which at one point will prompt him to potentially have further surgery. In a report date February 11th, 2002, three-and-a-half years after the accident, Dr. David Olysav, an orthopedic surgeon, reported on his examination of Mr. Carter. He said that: With age, Mr. Carter will develop traumatic arthritis and possibly lose motion in the knee. Dr. Olysav suggested that Mr. Carter could seek relief through a total knee replacement though, in the doctor's experience, this does not work well where the soft tissues around the knee are not in good condition. (HENDERSON, J. -- Oral Reasons for Judgment) He went on to say that joint replacement for traumatic arthritis traditionally has a poor outcome. The doctor did add that he would expect Mr. Carter to obtain significant pain relief through this process. He also expected that the pain would become progressively less over time. As at the date of the report, it was Dr. Olysav's opinion that Mr. Carter continued to need a daily anti-inflammatory. The doctors have not been cross-examined and their credibility has not been questioned. I accept those passages I have quoted as reliable. In the result, I find that Mr. Carter is now permanently disabled from pursuing the occupation, that is to say, painting, which he pursued as at the date of the injury. I will address the question of mitigation later on. I turn to the issue of pain and suffering and loss of amenities - in other words, general damages. The parties are agreed that the Judicial Studies Board Guidelines provide at this point in their development a useful guide to an (HENDERSON, J. -- Oral Reasons for Judgment) assessment of general damages in a case such as this. For the plaintiff, Mr. Robinson argued that this case falls in category B (a)(i) of the Knee Injuries section of the guidelines. While Mr. Tarboton (for the defendant) argued that it falls either in the (ii) description or the (iii) description under the same subheading. Having regard to the wording of the three descriptions, I am satisfied that this injury should be placed in category B(a)(ii). That category has the following description attached to it: Leg fracture extending into the knee joint causing pain which is constant, permanent, limiting movement or impairing agility and rendering the injured person prone to osteoarthritis and the risk of arthrodesis. I am further satisfied from the evidence and arguments that this injury should be placed in the mid range of that category. The mid range specifies a suggested award in English (HENDERSON, J. -- Oral Reasons for Judgment) pounds of £31,500. That is the half-way point between the top and the bottom of the updated figures. I award to Mr. Carter as damages for pain and suffering and loss of his amenities, the sum of £31,500 converted to CI dollars at a conversion rate of 1.28. I leave it to counsel to do the mathematical figuring which results from this oral judgment. In addition, I award interest on general damages at 2% from 27th January 2000 to 26 September 2002. There was no dispute between the parties about that latter element of the award. Mr. Carter has claimed some $1,300 CI as the cost of past medical care. His evidence demonstrates only that he has spent $456 CI on such items. There was a concession by the defendant, which I considered to be more than reasonable, that the plaintiff should be awarded about half of what he claims, that is to say $650 CI. I award that to him now. Much of the argument had to do with my award for past and future loss of earnings. The defendant accepted that there should be (HENDERSON, J. -- Oral Reasons for Judgment) some award for past loss of earnings although it took issue with the plaintiff as to how that should be calculated and what deductions should be made. The defendant resisted any award at all for future loss of earnings, particularly in light of Mr. Carter's age, which was 63 at the time of the accident and 67 at the time of trial. I have already indicated that I find his reconstructed list of earnings for the years prior to the accident, although wholly unsupported by documentary evidence, to be credible. These demonstrate that his average earnings between 1994 and 1998 amounted to $3,348 per month, CI. From that, something must be deducted to account for general overhead. Such things as gas and insurance on the vehicle that Mr. Carter must have been driving would need to be taken into account in order to arrive at his net income loss. Again, there is a complete absence of records and a complete absence of evidence which would allow me to do anything other than form the most general of estimates. (HENDERSON, J. -- Oral Reasons for Judgment) For the most part, the owners of the buildings provided to Mr. Carter the paint and other materials he needed to perform his work. It seems to me that it would be reasonable to deduct the sum of $348 per month to represent general overhead. That results in my conclusion that the net earnings of Mr. Carter in the years before the accident averaged $3,000 per month. He was off work for 48 months prior to the accident. The question becomes how much he would have earned during those 48 months, given some of the factors which I will now mention. He was 63 at the time of the injury, a point at which some people have retired and many others are making imminent preparation for it. In addition, he suffered some health problems. Kidney stones prevented him from working for approximately two months in 1998. There is some evidence that he suffered from chest pains, albeit of a musculoskeletal nature. He took a two month vacation, atypically, in 1998, for the first time in many many years. I infer from these factors, collectively, (HENDERSON, J. -- Oral Reasons for Judgment) that Mr. Carter was planning to slow down, although not retire abruptly, from the business of painting. He had no pension earnings available to him. He has a very industrious work record and strikes me as a person who probably enjoyed work. In my view, he would have slowed as the years progressed but would not have stopped work entirely for some considerable period of time. Mr. Tarboton also adduced reliable evidence that there has been a considerable decrease in the availability of government contracts in the years 2000, 2001, 2002. I accept that evidence, but I doubt that it would have had any direct effect on Mr. Carter's earnings because, as I have indicated, he would have been slowing down in any event for other reasons. I turn to the question of the duty to mitigate. There is a duty on every plaintiff to take all reasonable steps to mitigate the loss. It is not necessary in this jurisdiction that the duty to mitigate be pleaded expressly. The (HENDERSON, J. -- Oral Reasons for Judgment) burden of proving a failure to mitigate rests with the defendant. The defendant must satisfy me on the balance of probabilities that the plaintiff has not taken some particular reasonable step to mitigate the loss. Here there was credible evidence from Mr. Tatum that it is entirely possible to attain painting contracts and have the work done by employees while the business owner simply supervises. Mr. Tatum has done that with considerable financial success over a period of several years. The question is whether it would be reasonable to expect this particular plaintiff with these injuries, and in these circumstances (given his age), to restructure his business in that fashion. He has almost always worked alone. He has hired assistants on a couple of occasions. He is not a person who has any experience in the running of a business which employs other people. I also accept Mr. Carter's evidence that, although he can get around, perform some work and mount a ladder to a certain extent, he finds these activities so tiring that he must (HENDERSON, J. -- Oral Reasons for Judgment) rest for significant periods of time after performing them. I accept his assertion that his injuries fatigue him sufficiently during the day that it would prevent him from working a full eight-hour day, even in a supervisory capacity. What is the result of that? The defendant says that supervising does not require the supervisor to be present and active eight hours a day, five days a week - that it can be done more flexibly and less intensely than that. The suggestion here is that Mr. Carter, having obtained a contract for the painting of a building, should hire assistants who may never have worked for him before and who may be unknown to him. Their abilities may or may not be high. He would not know that unless he keeps a close eye on them. In effect, it is said that Mr. Carter is now capable, or was capable at the age of 64, of starting up a new business, embarking upon a new venture, and employing people who would require significant amounts of supervision. I am not satisfied on the balance of probabilities that this amounts to a reasonable (HENDERSON, J. -- Oral Reasons for Judgment) step in the duty to mitigate. The defendant has failed to convince me that it would be reasonable to expect this plaintiff to pursue painting contracts in that manner. The result is that I make no deduction from my award for failure to mitigate. I have already indicated that I think Mr. Carter's income would have declined naturally from year to year. In my view, had he not been injured, Mr. Carter would have earned $36,000 CI the first year after the accident; $33,000 the second year; $30,000 the third; and $27,000 the fourth. That results in a multiplicand of $31,500. The multiplier for the award of past loss of earnings is four. As Chief Justice Smellie did in Yates and Radtke, I would award interest on the award for medical costs and on the award for past loss of income at one-half the court rate. I turn to the question of future loss of earnings. Again, I would note that Mr. Carter is a proud man with a strong work record and a good work ethic. He had no pension to look forward to. There are also, however, indications of (HENDERSON, J. -- Oral Reasons for Judgment) failing health and of a natural desire on his part to decrease the intensity of his work schedule. In my view, he would have continued to work at a declining rate past age 67 up until the age of 70. I have referred, at the urging of counsel, to the Ogden Tables to obtain a multiplier which takes into account the contingencies of mortality, inflation, and a discount rate which reflects that the Court is awarding to Mr. Carter, now, the present value of his notional future income stream. It is true that these tables were designed for a very different society on the other side of the Atlantic Ocean, but in my view they are useful nonetheless. There is nothing more specific to which I can refer to take into account such things as the contingency of mortality. There is no developed body local case law on the contingencies to which the Ogden Tables refer. The multiplier which is appropriate here is 2.34. The multiplicand must recognize all of the same factors I have referred to above when (HENDERSON, J. -- Oral Reasons for Judgment) assessing his past loss of income. The earnings would have continued to decline. I set the multiplicand for this period at $22,500 CI. Again, I leave it to counsel to do the appropriate mathematical calculations. There is also before me a claim for future medical costs. Mr. Carter has not, however, proven on the balance of probabilities that he will be subject to any such costs. The evidence satisfies me that there is a reasonable possibility that he will need a surgical operation in the future. But the evidence does not satisfy me to the required standard, or to any standard, that he will have to pay for that operation. The evidence is that Mr. Carter obtains free medical treatment at the George Town Hospital on Grand Cayman Island, but would have to pay for a surgical operation performed in Miami or elsewhere. There is an absence of evidence as to whether the suggested knee replacement operation would be performed at George Town Hospital or would necessarily have to be performed in Miami. (HENDERSON, J. -- Oral Reasons for Judgment) I am therefore entirely unable to assess whether there is a contingency that the plaintiff will incur this cost in the future. This is an issue upon which the plaintiff bears the burden of proof. That element of the claim is therefore dismissed. Those are my reasons for judgment. Counsel are each granted liberty to apply for any matters necessarily arising from this judgment, and may speak to costs if they are unable to agree. THE HONOURABLE MR. JUSTICE HENDERSON