Administrator General for Jamaica v Jamaica Pre-Mix Ltd and Another

• Jurisdiction: Jamaica
• Judge: Anderson, K., J
• Judgment Date: 18 October 2013
• Neutral Citation: [2013] JMSC Civ 149
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2009 HCV 04028
• Date: 18 October 2013

Between

Administrator General for Jamaica (On behalf of the Near Relations and Dependents and Dependents and as Administrator Ad Litem of the Estate of Clive Brown, Deceased)

Claimant

and

Jamaica Pre-Mix Limited

1st Defendant

and

Rohan Reid

2nd Defendant

[2013] JMSC Civ 149

CLAIM NO. 2009 HCV 04028

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

ASSESSMENT OF DAMAGES — FATAL ACCIDENTS ACT — LAW REFORM (MISCELLANEOUS PROVISIONS) ACT

Ms. Catherine Minto , instructed by Nunes , Scholefield , DeLeon & Co. for the Claimant

Mr. Kwame Gordon , instructed by Samuda & Johnson for the 1st Defendant

Anderson, K., J

1 This is an assessment of damages arising from a motor vehicle accident that occurred on 10 July 2006, arising from which, Mr. Clive Anthony Brown (“the deceased”) died. The deceased was driving his motor vehicle along the Stony Hill Main Road and a grinder from a motor truck registered to Jamaica Pre-Mix Limited (the “1 ^st defendant”) fell on his motor vehicle injuring him; he subsequently died as a result of those injuries. Rohan Reid (the “2 ^nd defendant”) was the driver of the said motor truck and the agent or servant of the 1 ^st defendant. Separate actions were brought against the 1 ^st and 2 ^nd defendants and the matters were consolidated by an order of the court.

2 The deceased died intestate. He was 36 years old at the date of death and is survived by his wife, Mrs. Franceita Brown, two children, Zinedine and Suwayne Brown, his mother — Ms. Beverly Allen and his father, — Mr. Anthony Brown. An application for court orders to appoint Mrs. Franceita Brown as Administrator (Ad Litem) for the estate of the deceased was filed on 31 July 2009. A letter from the Administrator-General's Office, dated 2 September 2009, to counsel for the claimant indicated that an amended Application for court order need be submitted to instead appoint the Administrator-General of Jamaica as the Administrator (Ad Litem) due to the involvement of minors as beneficiaries in the claim.

3 A court order by Justice Glen Brown was granted on 15 September 2009 appointing the Administrator-General as Administrator (Ad Litem). The order stated that:

“(1) The Administrator-General is to be appointed Administrator (Ad Litem) for the Estate of CLIVE BROWN for the purpose of beginning and carrying on these proceedings as the Claimant herein and ;

(2) The Claimant be permitted to make a claim against the Defendants in these proceedings for damages for negligence for the benefit of the near relations of the deceased (Clive Brown).”

4 On 16 August 2010 default judgment was entered for the claimant against the 2 ^nd defendant, as he failed to file a defence and on 20 October 2010 Summary Judgment was entered by consent against the 1 ^st defendant. The 1 ^st defendant and the claimant completed a mediation exercise on 16 March 2011 but were unable to arrive at a settlement. The matter was slated for assessment of damages on 11 July 2011 and was adjourned until 1 and 2 November 2011. I reserved judgment on 2 November 2011 in order to allow for written submissions and the authorities to be relied upon to be filed and served by the parties on or before 9 November 2011. This court now turns to the question of assessment of damages. Before doing so though, I wish to hereby, apologize for the delay in delivering judgment in respect of this matter.

5 The claimant filed for an award of damages under both the Fatal Accidents Act — [1845] (“FAA”) and the Law Reform (Miscellaneous Provisions) Act — [1955] (“LR(MP)A”). Both Acts are pleaded in concert in the case at hand. As the assessment of damages will proceed under both Acts, it is important to indicate from the outset that duplication in recovery of damages is not allowed, and therefore the court will be vigilant in determining the award of damages under the Acts to ensure that a dependant does not doubly recover. The claimant cannot benefit under the FAA except and to the extent that her dependency under the FAA exceeds the amount awarded under the LR(MP)A. Therefore, if there is excess under the FAA, then the claimant will be entitled only to that excess. In order to ensure that the claimant does not doubly recover, what must be done is that the claimant recovers only the maximum sum due under either of these statutes. In other words, if the claimant were to recover $10 in her claim under the FAA and also to recover $50 under the LR(MP)A, this would not entitle the claimant to recover damages from the defendants in the aggregate sum of $60. Instead, the claimant would only lawfully be permitted to recover the maximum sum of $50 under the LR(MP)A. The $10 awarded under the FAA would be taken as still having been awarded to the claimant, but would not entitle her to recover that $10 sum in addition to a further $50 arising out of her claim under the LR(MP)A. This court will first proceed to assess an award of damages under the FAA and then assess an award of damages under the LR(MP)A. This court notes, at this point, that the multiplier used under the FAA is the same multiplier used under the LR(MP)A.

ACTION UNDER THE LAW REFORM (MISCELLANEOUS PROVISIONS) ACT

6 An action brought under the LR(MP)A is done so for the benefit of the deceased's estate. Section 2 of that Act states: ”…on the death of any person … all causes of action … vested in him shall survive … for the benefit of his estate.” Under the LR(MP)A, the award is usually made for (1) loss of expectation of life (2) funeral expenses; (3) other special damages; and (4) the “lost years” of earning capacity.

7 With regard to special damages, the claimant has claimed for funeral expenses being the costs of suit, shirt, slippers, church, food supplies, chef, rum, heineken, beer, refreshments after funeral, the loss of the deceased's vehicle, the cost of the wrecker service which was used to tow away the deceased's vehicle, after the vehicular accident which caused his death, had occurred, along with the estimate for repairs to said vehicle and assessors invoice. The existence and cost of the razor phone are, in the present case, both unsubstantiated. It is trite law that pleaded particulars, must, as a general rule, be strictly proven. Nonetheless, this is only a general rule and in appropriate cases to insist on specific proof would amount to that which has, in caselaw addressing this subject, been described as, “the vainest pedantry.” See: Desmond Walters v Carlene Mitchell— [1992] 29 J.L.R. 173, at p. 174, per Wolfe, J.A. (as he then was). It is therefore open to this court to accept a sum claimed as special damages without evidence of a receipt. With regard to the justice of the situation, this court cannot accept the sum claimed as special damages for the alleged loss of a “razor” phone, without evidence of the existence of such a phone. This court agrees that the cost of the police report is standard, being $1000.00. The defendants dispute a portion of the funeral expenses. They assert that the 4 soft drinks totaling $2880.00 is unreasonable, and that the DJ/Music and Charter bus claims are unsubstantiated, stating that it is unclear why family members needed to be taken to and from the funeral in a bus and question the necessity of the bus. This court is of the opinion that 4 soft drinks totaling $2880.00 must be understood as being 4 crates of soft drinks rather than as 4 soft drinks. This must be so, bearing in mind the nature of the event which was being catered for. The other challenged funeral expenses are also accepted by this court, as there is no evidence to the contrary presented by the defendants. The sum of $618,448.80 is accepted by this court as the figure for the funeral expenses and $572,220.00 as the figure for the property damages which represents a deduction of the $20,000.00 cost submitted for the razor phone by the claimant.

8 Further, under the LR(MP)A, damages for loss of expectation of life are also calculated. A conventional sum for such damages is typically awarded. In Bryan v. AG (unreported) — CL 2001 B 088, Sinclair-Haynes J. stated that the figure under this head of damages, should be a conventional or moderate figure. There has been controversy with regard to this sum. Sinclair-Haynes J. also stated that the massive devaluation of the Jamaican dollar required that the figure be adjusted proportionate to the change in the dollar value. The sum of $30,000.00 was identified in Hibbert v. AG— [1988] 25 J.L.R. 429, Radcliffe v. Smith & Anor— [1988] 25 J.L.R. 516 and Clarendon Parish Council & Evan v. Goulbourne— [1990] 27 J.L.R. 516. In Odemary Bartley v. Errol Walters and another (unreported) — CL 1999 B226, Dukharan J. (as he then was) raised this figure to $70,000. In Bryan (op. cit.) , Sinclair-Haynes J. noted that the Bartley award at the time she decided Bryan would be updated to $118,984.88 based on the CPI; she awarded a moderate figure of $125,000.00 as appropriate. Brown J., took a similar approach in Gordon et al. v. Administrator General (Gordon, deceased) (unreported) — 2006 HCV 01878. In that case, both claimants and defendants presented recent awards granted by the Supreme Court that ranged from $50,000 to $175,000. Brown, J. having acknowledged the variance resulted from the devaluing Jamaican dollar, considered the claimant's proposed sum of $150,000.00 to be reasonable. The loss of expectation award should therefore be updated to match the devaluation of the dollar, but not to the extent that it would differ from the award under that head, as rendered by this court, in the Gordon case (op.cit.) Given the recent Court of Appeal judgment in AG v. Bryan— [2013] JMCA Civ 3, the conventional sum for a loss of expectation award appears to now be $125,000.00. The claimant has submitted that the sum of $150,000.00 should be accepted and this court agrees with this...