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A High Court judge has ordered compensation for a teenager from Morvant who fell from an excavated 15-20-foot drop-off at the backyard of his family’s home when he was three years old.
Justice Eleanor Donaldson-Honeywell ordered compensation for the boy, who is now 18, after she held the State was liable to compensate him for his injuries.
The boy’s mother sued the State in 2018 to recover damages for her son’s injuries from the incident, in June 2008.
The drop-off was created after the Ministry of Community Development excavated land next to the family’s home at Pelican Extension, Morvant, for a retaining wall project,
The boy’s mother said a fence from their yard was removed and the excavated area remained unfenced at the time of the fall.
In her lawsuit, she said he was playing in the yard while being watched by her and other relatives when he “fell off his unfenced yard” to the bottom of the drop-off and landed on a steel rod facing upwards.
He suffered a deep laceration above his right eye extending to his forehead, and fractured his right forearm. Because of the fall, he continues to experience headaches, nausea, vomiting, dizziness, seizures and sleep apnea.
Testifying at the trial were the boy’s brother, who was present on the day of the fall, his mother and three medical professionals.
A project officer for the ministry testified for the State.
The boy’s attorneys also submitted extensive medical reports which, the judge said, the State did not contradict.
In defending the negligence claim, the State contended the family did not own the land, but was squatting, and a galvanised fence had been installed around the construction site. State attorneys also contended that the child’s mother was not present when he fell, as she had gone to take a bath, so she willingly accepted the consequence of allowing him to play in an area under construction.
The judge rejected this contention, saying it defied logic. “As a three-year-old child, (he) would be expected to play as part of his healthy development...
“It was the defendant’s negligence that rendered the backyard less safe for play by removing the fence and creating a steep drop-off.
“However, this did not mean the claimant’s mother was required to deprive him of any opportunity for playing in the backyard.”
She added, “The primary cause of the injury was the defendant's creation of the drop-off from the backyard and failing to keep it fenced.
“Thus, I find it immaterial whether the mother was bathing or not, whether relatives were outside and she was not on the spot at the moment of the fall or whether the edge of the drop-off point crumbled or not.”
The boy’s mother sought $350,000 in general damages. The judge approved $132,698.67, which included interest.
She also ordered special damages of $16,127.36 to cover his medical bills and ordered the State to pay the mother's legal costs.
However, she declined to award damages for future loss since there was insufficient evidence to link the fall to the child’s mild mental disability and developmental delays, as the medical experts said there was no sign of brain injury and there was some evidence of a family history of learning difficulties.
The boy’s mother was represented by attorneys Farai Hove Massaiai, Bernelle Joy La Foucade and Alisha Ponambalam. The State was represented by Natoya Moore-Belmar and Khadine Matthew.
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