Legal Scoop | A $600m oversight – Part II - Janet Edwards v Jamaica Beverages Ltd

In recent times, we have heard through the media of the impending sale of Jamaica Beverages Limited (JBL) to satisfy, among other reasons, a staggering, estimated $560-million personal injury award against that company. In our last column, we looked at the genesis of the claim. The claim in question was brought by Janet Edwards, a former employee, arising out of an incident at the company when she was shot in the neck by gunmen during the course of criminal activity. The shot seriously injured Edwards, severing her spinal cord and rendering her a tetraplegic.

The Liability Claim

Edwards was shot in 2000 and filed her claim against JBL for breach of contract and negligence in 2002. The essence of her claim was that JBL was responsible for the injuries she had suffered by failing to provide her with a safe place – and system of work. JBL failed to acknowledge service of the claim due to an oversight and a default judgment was obtained by Edwards against JBL. JBL then attempted to have the default judgment set aside but failed. Edwards thereupon proceeded to have her damages assessed and received a substantial award, details of which are set out further below in the column. Today’s column is about that assessment of damages hearing.

Background

At the assessment hearing, the court recounted huge portions of the witness statement of Edwards. After her injury, she was taken to the Cornwall Regional Hospital where she was treated very shabbily. She was left lying in a bed unable to move, unable to move her hands and legs. Nobody explained what was happening to her. All she could feel was a numbing sensation from her chest downwards, and pins and needles in her arms and legs. In her statement, she named doctors from that hospital who spoke to her in cold and uncaring tones.

When one doctor was about to give her an injection, according to Edwards, another doctor told him that it would be a waste of time, and the injection was withheld. She said the nurses were sympathetic, but no one gave her any medicine. One doctor repeatedly said that preparations were to be made for her funeral. There were no immediate members of her family living in Jamaica and she felt alone, confused and depressed.

Edwards also named persons from JBL who came to see her while she was in the hospital and who promised to take care of her, even after she told them that she wanted to travel to the United States to be with her family.

Physical anguish

Edwards followed through on her expressed wishes to the visitors from JBL, and a few days later, was flown to the US and had surgery to remove the bullet from her arm. This was in May 2000. In the years following, Edwards had to deal with multiple periods of hospitalisation, rehabilitation, bed sores and infection. She had to have the assistance of nurses, aides, her mom and sister, and required a lot of equipment to groom herself daily. At the hearing, Edwards, therefore, sought substantial damages to cover the care and equipment she would need in the future, to recover costs incurred, computed in both US and Jamaican dollars, and for her general pain and suffering.

Duty to mitigate

For their part, at the assessment hearing, JBL largely argued that Edwards should not be awarded the substantial damages she was seeking for her healthcare as she had failed in her duty to mitigate her damages. They argued that much of her expenses could have been avoided by reasonable steps. They contended that it was not enough for her to prove that she incurred the expenses but that the expenses were reasonable. They were not called upon to pay for actual expenditure but to pay for actual expenditure that is reasonable.

By way of response to JBL’s submission in this regard, Justice Morrison noted that the onus was on the company to show the particular circumstances in which Ms Edwards ought reasonably to have pursued some course of action, which she did not. In other words, yes, Edwards had detailed substantial expenses for her healthcare, and, yes, JBL was only required to pay for reasonable expenses.

However, JBL also had a duty to show in what regard they felt Edwards’ expenses were overstated, or that equivalent, less expensive alternatives existed in Jamaica which had not been explored. JBL had failed to address any of those matters at the assessment. In the circumstances, JBL had failed to prove that they were not to be saddled with the actual expenses claimed by Edwards.

Summary of Award

Having reviewed in detail the various aspects of Edwards’ claim for compensation for her physical injuries, Justice Morrison awarded her as follows:

For special damages denominated in US dollars.

a) Hospital, transportation, medical, medication – $504,358.93

 

Medical equipment expenses

b) Monthly expenses for daily living – $167,058.71

 

Special damages denominated in Jamaican dollars for loss of earnings – $8,460,000

 

a) Future nursing and home health aide care – $2,036,700

b) Equipment and future replacement costs – $86,500

c) Future medical care – $31,500

d) Future monthly expenses – $264,356.64

e) Modification expenses – $35,200

 

For general damages denominated in Jamaican dollars

a) For pain and suffering and loss of amenities – $53,000,000

b) Future loss of earnings – $4,320,000.00

Interest

Edwards was also awarded interest on the above sums which would also have significantly increased her award. Interest was awarded as follows:

 

a) Interest on special damages at six per cent from April 27, 2000 to June 21, 2006 and three per cent from June 22, 2006 to the date of judgment;

 

b) Interest on general damages at six per cent from the date of service October 8, 2002 to June 21, 2006 and three per cent from June 22, 2006 to the date of judgment.

Conclusion

Many teachable moments arise from this case, to wit:

• Duty of employers to provide a safe place and system of work for employees

• Adequacy of insurance coverage for businesses

• How one substantial award can wipe out a business

• The importance of having a system in place to urgently bring new lawsuits to the attention of the relevant parties.

• From the legal perspective: the inadequacy of “bare denial” defences and the necessity, when claiming a breach of the duty to mitigate damages, to detail the more reasonable and economic options that were actually available but not explored.

Shena Stubbs-Gibson is an attorney-at-law and legal commentator. Send feedback to email: shena.stubbs@gleanerjm.com. Twitter:@shenastubbs. This column appears every other week.