Judge rejects sex pain claim

A policeman who sought $16 million, claiming that a 2015 motor vehicle collision left him with injuries, recurring discomfort, and pain after sexual intercourse, has been awarded $3 million in general damages by the Supreme Court.
The award was made to the constable, who was injured while travelling as a passenger in a police vehicle transporting prisoners along Vernon Avenue, St Mary, on December 7, 2015.
In his witness statement, the constable said he suffered injuries to his neck, lower back, shoulder, and right thigh following the crash. He said he continued to experience pain, muscle spasms, tingling sensations, and cramping, which affected his ability to perform physically demanding duties.
Among his other complaints were back pain aggravated by driving, sleeping, and lifting weights greater than 60 pounds; mild to moderate difficulty performing activities of daily living; tingling and cramping across the shoulder and towards the hips; and pain after sexual intercourse.
However, Justice Sonya Wint-Blair found that while the collision caused injuries to the constable’s cervical and lumbar spine, several aspects of his claim were not supported by the medical evidence.
She noted inconsistencies in the medical report, concerns about causation, and the officer’s failure to pursue recommended follow-up assessments and treatment.
The court found that the constable’s impairment assessment was provisional and that a further medical review recommended for 2018 would likely have provided a more accurate evaluation of his condition. However, there was no evidence that he returned for reassessment.
“There is no evidence of economic hardship or personal reasons to explain the claimant’s failure to follow the doctor’s recommendations regarding surgery or other treatment.
“The claimant has failed to mitigate, and the first defendant should not bear responsibility for consequences attributable to that failure,” she added.
CLAIMED INJURIES, MEDICAL FINDINGS NOT ALIGNED
The judge also noted that some of the injuries claimed by the constable did not align with the medical findings and raised concerns about whether the 2015 collision aggravated pre-existing conditions, including a previous femur injury and a 2009 accident.
“The claimant’s injuries, as indicated by him, are vastly different from the medical evidence upon which he relies. Further, there is no evidence of any mitigation of loss,” said Wint-Blair in the judgment handed down last month.
The court also found that there was no evidence to support the constable’s claim that he was placed on six months’ sick leave, as the medical evidence indicated that he had been recommended only 28 days away from work.
The judge further noted that there was no medical evidence supporting the officer’s claim of an impact on his sexual activities, and no evidence identifying prescription medication or other treatment expenses.
The constable had sued the owner of the vehicle involved in the crash, and the individual who was driving at the time, claiming damages for negligence and/or breach of statutory duty for injuries sustained in the accident.
Assessment of damages 
The matter proceeded to an assessment of damages after the claimant obtained judgment in default against the first defendant. The claim form and particulars of claim were served on the first defendant on April 23, 2021, but no acknowledgement of service was filed.
As a result, judgment in default of acknowledgement of service was entered on July 6, 2021, paving the way for the court to determine the compensation payable.
The accident occurred when the second defendant, while driving a motor vehicle, made a sudden right turn into a service station without signalling, resulting in a collision with the police vehicle.
Orthopaedic surgeon Dr Fidel Fraser assessed the constable with a nine per cent whole-person impairment and diagnosed chronic cervical and lumbar sprains, a Grade One acromioclavicular shoulder sprain, and a right femoral shaft stress fracture.
The claimant’s attorney submitted that the evidence of the injuries had not been challenged and argued that an award of $16 million was appropriate, citing the impairment rating and the impact on his career and lifestyle.
Wint-Blair, however, found that Fraser’s evidence did not adequately address the officer’s pre-existing injuries or establish the extent to which those conditions contributed to his complaints.
The court accepted that the collision caused the constable’s cervical and lumbar sprains, noting that such injuries can result in recurring flare-ups and may substantially affect a person’s quality of life.
In assessing damages, the judge reviewed previous personal injury decisions involving different levels of impairment before concluding that $3 million was appropriate for the officer’s injuries.
The constable had also claimed special damages totalling $83,000, including $28,000 in medical expenses, $15,000 in transportation costs, and $40,000 for household assistance.
The court awarded him $30,000 in special damages for medical expenses and transportation costs. Interest of three per cent was awarded on special damages from December 7, 2015, and on general damages from April 23, 2021, until payment.
The policeman was represented by attorney Kashina Moore, instructed by Nigel Jones & Company. Attorney Ann Marie Stewart, instructed by Donnovan E. Collins, appeared for the first defendant.
tanesha.mundle@gleanerjm.com