Martha Leblanc Claimant v Augustus Thomas John Leblanc Defendants [ECSC]

• Jurisdiction: Dominica
• Judge: COTTLE J,Justice Brian Cottle
• Judgment Date: 06 July 2011
• Judgment citation (vLex): [2011] ECSC J0706-1
• Court: High Court (Dominica)
• Docket Number: DOMHCV2009/0296
• Date: 06 July 2011

[2011] ECSC J0706-1

IN THE HIGH COURT OF JUSTICE

[CIVIL]

Before:

The Hon. Justice Brian Cottle

DOMHCV2009/0296

Between:

Martha Leblanc

Claimant

and

Augustus Thomas

John Leblanc

Defendants

Appearances:

Mrs. Singoalla Blomqvist Williams for Claimant

Mr. Stephen Isidore for Defendants

COTTLE J

1 when this matter came up for trial the defendant accepted liability and the ancillary claim was withdrawn as was a counterclaim to that ancillary claim. The only extant issue was the assessment of the damages due to the claimant. The claimant sustained injuries in a motor vehicle accident.

2 The vehicle driven by the defendant collided with the rear of the vehicle in which the claimant was a passenger. The claimant sought to recover special damages of $7,477.01, loss of income from 29 ^th June 2009 and continuing, general damages for pain and suffering and loss of amenities.

Special Damages

3 Special damages are capable of substantially exact calculation. They must be specifically pleaded, particularized and proven in order to be recoverable. Loss of earnings to the date of the trial falls under this head. Here although the claimant has asked for "loss of earnings from 29 ^th June 2009 and continuing" the claimant has failed to say in the pleadings how much was being claimed

4 The necessity to fully plead and particularize special damages such as loss of income has been emphasized repeatedly in these courts (see for example Ann Robertson v A.G GDAHCV2009/0338 applying llkew v Samuels [1963] 1 WLR 991 and Augustin Duncan v Commissioner of Police SLUHCV2002/0052). The failure to properly plead and particularize this item means that the claimant can recover nothing for lost wages to trial as special damages. The sum of $7,477.01 has been pleaded and particularized. To recover the claimant must prove it.

5 At the hearing for the assessment of damages it emerged that some of the items claimed as expenses having been incurred by the claimant, had not in fact been expenses paid by the claimant. The claimant withdrew the claim for a helper in the sum of $350.00 as well as $800.00 and $400.00 said to have been for night care and day care on 30 ^th June 2009. Only three trips to Roseau and back to Portsmouth to visit the physiotherapist were demonstrated. The claimant thus limited the claim for special damages under this head to $54 rather than the $234 initially sought.

6 The claimant also submitted invoices showing certain payments for airfare to Antigua and taxi fares which were shown not to relate to this claim. From the evidence as a whole I accept that the claimant has shown special damages in the sum of $3,997.01. It should be noted that a sum of $1,500.00 paid to the Princess Margaret Hospital was apparently done by the claimant's insurers. I have disallowed this sum as it does not represent an expense incurred by the claimant.

Loss of earning capacity

7 The claimant says that because of her injury her capacity to earn has been diminished. At the hearing of the evidence on the assessment of damages it emerged that the claimant had been able to return to her job after the accident. She was dismissed afterwards. It is unclear that her dismissal was related to injuries she sustained in the accident. Thereupon the claimant went into business on her own account. The claimant has not been able to show that she is unable to earn as much from her own business as from her former employment. Any diminution of her actual earnings might have been because of external economic circumstances and not any lessening of the claimant's ability to earn. I can make...