Court awards $5.4M in injury claim

In what is believed to be the largest award of its kind in Cayman, the Grand Court has ordered that $5.4 million be paid to the family of a man injured in an automobile accident.

Christopher Ian Panton was 22 at the time of the accident, which occurred in 1999 while he was a passenger in a car driven by someone with whom he had been out drinking.

Total damages in the personal injury claim reached $6.8 million, but the judge subtracted 20 per cent because of contributory negligence. See sidebar.

Christopher suffered irreparable brain damage as the result of severe head injury.

According to medical evidence, summarised in the judgment of Mrs. Justice Priya Levers, he now at age 29 functions at the level of a two year old. He cannot articulate any words, although he can make sounds. He has difficulty feeding himself, washing himself, clothing himself. He suffers loss of bowel and bladder control.

The brain injury has also caused emotional and behavioural disturbances, so that he needs constant care and attention. He lacks the cognitive ability to control his impulses.

The doctor who evaluated Chris in 2003 and again in 2006 concluded that he requires full-time personal care for all activities of daily living for the rest of his life.

During the hearing, which was held in open court, this witness told the court that, when he completed his observation of Chris and he was leaving, it took two people to restrain Chris and keep him in the house.

Mrs. Justice Levers noted from the evidence that no improvement or further deterioration in Chris’ condition is predicted. He is expected to live out his normal life span. The injury has not necessarily shortened his life expectancy and a view was expressed that he should live to the age of 69.5.

The future cost of Chris’ care made up the largest portion of the award: $3,432,557.46.

The judge said she agreed that three occupational therapists were needed to look after Chris. She accepted evidence that he is exceptionally difficult to look after and the two therapists currently working with him could suffer burnout if asked to continue present arrangements. Chris needs someone to sleep with him every night, she had been told.

The judge further pointed out that she had to consider the country in which Chris is living. Cayman is not a place where one can hire an occupational therapist easily, she observed.

The therapists currently looking after Chris came here from the Philippines. Each needed time to go and visit family, which would leave one therapist to look after Chris. In the view of the court, this would be an impossible task. It was clear he would be better served by having three occupational therapists. A domestic helper was also essential, she ruled over Defence objections.

‘If a case demands something special then the Court must make a decision to give the case just that, based on the facts,’ she said.

Other damages awarded fell into the categories of special or general.

Special damages included loss of income and medical expenses, to a total of $968,513.43.

General damages included the future cost of care, future loss of earnings as if Chris would have worked until age 65, and $350,000 awarded for pain, suffering and loss of amenities.

The judge pointed to a claim in this case that is not commonly made for loss of future profits.

Chris at one stage worked in his brother’s business. The court was told that the brother had promised him 20 per cent of the profits because Chris had stood by his brother from the inception of the business.

At the time of the accident, Chris had been working for someone else. The evidence of his two older brothers, that they were going to take him back, was accepted by the judge, who described the brothers as exceptionally credible witnesses.

She believed the business owner intended to give Chris 20 per cent, but might have ended up giving him the same as another brother received. She therefore awarded profit sharing of 10 per cent.

Total damages came to $6,834,459.60. However, because of the earlier finding of contributory negligence, the final judgment was $5,467,567.68.

Before assessing these damages, Mrs. Justice Levers reminded herself that she must have regard to the range of awards in other cases that were comparable. Regrettably, however, there was no guideline in this jurisdiction for injuries of the nature suffered by Christopher.

‘You’ve broken the $5 million barrier,’ she told Ramon Alberga QC, who represented Christopher and family members appointed as his guardians.

Mr. Alberga later said he knew of no higher claim being awarded in Cayman.

He was assisted in this case by Attorneys Christopher Russell and William Jones.

The defendant – the driver of the car — was represented by Dr. Claude Denbow, instructed by Attorney Sarah Collins.

Passenger was negligent

In the personal injury claim filed on behalf of Christopher Panton, the award of $5.4 million was made after the second part of a split trial.

The first part of the trial was to determine if there was contributory negligence on his part and, if so, what percentage of the blame should be attached to him (Caymanian Compass, 30 April 2004).

Chris was a passenger in a car that went off the road and flipped or rolled onto its side in the early hours of 22 November 1999. Earlier, from around 7pm, he and the driver had been at the Eastern Star Bar and Restaurant, where they played dominoes, drank and socialised until sometime after midnight.

After the accident, the driver’s breathalyser test showed an alcohol reading of .163. Chris’ blood/alcohol showed levels of .118 and .127. The legal limit in both blood and breath tests is .100.

The driver gave evidence that he had about 10 drinks and Chris had about the same and they were drinking together.

In her 2004 judgment, Mrs. Justice Levers found that Chris should have known there was danger in being driven by the other man. Chris had been a driver himself. In this day and age it could be inferred that any driver must be aware of the dangers of drinking and driving.

She explained that contributory negligence is a special defence available to a negligent defendant. In this case the driver argued that the passenger failed to exercise sufficient care for his own safety.

The judge cautioned that the question of a passenger’s knowledge about a driver’s condition is peculiar to the facts of each case. It could not be said that because a passenger permitted himself or herself to be driven by a drunken driver the passenger was automatically guilty of contributory negligence.

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