Justice (Actg.) Winder in a Ruling delivered on 28th April, 2014 reconfirmed that Bahamian law recognizes that damages can be reduced where a claimant had pre-existing injury prior to an accident.
The Ruling in the consolidated case of McCoy and Clarke vs. Williams & Hunter (00645 of 2011 and 00453 of 2010) applied the principles of law set out in Cutler v. Vauxhall Motors Ltd.[1970] 2 All ER 56.
Justice Winder also confirmed in the Ruling that a claimant cannot profit from a tort, as was established in the celebrated case of Salih & Anr. v Enfield Health Authority [1991] 3 All ER 400.
For claimants that had pre-existing injuries prior to a tort, they should ensure that the medical reports reflect the nature, extent and degree of the pre-existing injury with any associated correlation with the (new) acute injury. Where appropriate, the medical report should highlight the resulting costs to remedy the (precise) injury caused by the accident.
It is clear that Insurers will be paying closer attention to the medical evidence in assessing whether a claimant had pre-existing injury.
Lead Counsel, Raynard Rigby, expressed delight at the Ruling and said “it is a watermark decision and will significantly impact on future awards of quantum in the jurisdiction”.
Raynard Rigby and Lillian Russell represented the Defendants in the consolidated Assessment.
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