Administrator General for Jamaica (Administrator – Estate of David Benloss, deceased) v People's Favourite Baking Company Ltd

• Jurisdiction: Jamaica
• Judge: Fraser, J.
• Judgment Date: 27 January 2017
• Neutral Citation: [2017] JMSC Civ 11
• Date: 27 January 2017
• Docket Number: CLAIM NO. 2012 HVC 07139,2012 HVC 07139; 2015 HCV 03013
• Court: Supreme Court (Jamaica)

Administrator General for Jamaica

and

People's Favourite Baking Company Limited and Henry

Smith

and

Henry and People's Favourite Baking Company Limited

Fraser, J.

2012 HVC 07139; 2015 HCV 03013

Supreme Court

Personal Injuries - Liability — Fatal accident — Agency — Master or servant — Vehicular collision — Statutory duty of acre — Damages — Loss of expectation of life — Funeral and testamentary expenses — Multiplier/multiplicand — Whether second defendant was negligent — Whether first defendant was master of second defendant at all material times — Whether claimants were entitled to damages — Judgment for claimant.

Legislation:

Section 3 of Fatal Accidents Act – Law Reform (Miscellaneous Provisions) Act – Sections 51(1)(g) and 1(2) of Road Traffic Act.

Appearances:

Mr. Manley Nicholson: instructed by Nicholson Phillips for the 1st claimant

Mr. Marcus Greenwood: instructed by Lettman Greenwood & Co. for the 2nd claimant

Mr. John Graham and Miss Peta-Gaye Manderson: instructed by John G. Graham & Co. for the defendant.

Fraser, J.

INTRODUCTION

1 Where a person is injured as a result of the wrongful act, neglect or default of another, the common law allows the injured party to sue the person who has committed the wrong and to obtain damages. If an injured person expires as a result of those injuries wrongfully inflicted; at common law an action in tort for personal injuries also expires. Since 1955 however, statute law has provided that the claim against the person who caused the injury survives the death of the injured person. Section 2(1) of the Law Reform ( Miscellaneous Provisions) Act provides that:

“Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or as the case may, for the benefit of, his estate.”

2 Section 3 of the Fatal Accidents Act; additionally makes provisions in similar terms. If the injured person dies, his personal representatives can maintain an action for the benefit of his estate and claim damages on behalf of his dependants to recover any balance of loss which it can be proved that they have sustained.

3 The rights conferred by the Fatal Accidents Act on the dependants of the deceased person shall be in addition to and not in derogation of any rights conferred for the benefit of the estate of the deceased. The effect of the statute is such that a sum recovered under Law Reform ( Miscellaneous Provisions) Act shall be taken into account in assessing damages under the Fatal Accidents Acts. It is, therefore, right, in assessing damages under the Fatal Accidents Acts, to take into consideration and deduct any pecuniary advantage which has resulted to the beneficiaries.

4 Two such claims have arisen in this case following events occurring on the 22nd December 2009. Constable David Benloss, then forty-six (46) years old, was a passenger in a marked “Highway Patrol” motor car, registered No. 203290 being driven by Sgt. Lyncent Smith along the Goshen Main Road in the parish of St. Elizabeth. One Mr. Romaine Henry who was driving a green Urvan Nissan motor truck registered CG7409 owned by People's Favourite Baking Company Limited; allegedly lost control of the vehicle whilst over taking a line of traffic, veered into the path of the oncoming service vehicle and thereby collided with it.

5 Both policemen were eventually taken to the Mandeville Public hospital, Sgt. Smith was admitted for treatment as also Mr. Henry, sadly Con. Benloss succumbed to his injuries and was pronounced dead on arrival.

THE CLAIMS

6 A claim for wrongful death was filed on 20th December 2012 by the Administrator General of Jamaica. The claim is made pursuant to a Grant of Letters of Administration from the Supreme Court of Judicature of Jamaica issued on 28th August 2013; and is made on behalf of the deceased's estate and for the benefit of his near relatives; pursuant to the Law Reform ( Miscellaneous Provisions) Act and Fatal Accidents Act respectively.

7 Initially Sgt. Lyncent Smith was sued as a 5th defendant being the driver of the motor vehicle in which David Benloss was travelling, so too the Commissioner of Police was made a 4th defendant to the suit for reason that the claimant alleged he was the owner of the service vehicle and that Sgt. Smith was at all material times a member of the Jamaica Constabulary Force (JCF) and as such was acting or purportedly acting as servant and or agent of the Commissioner of Police/State. It is also in this vein that the Attorney General was joined in the claim as a 3rd defendant; by virtue of the provisions of the Crown Proceedings Act.

8 Following myriad developments and applications in Claim 2012HCV 07139; proceedings were discontinued against the 3rd, 4th and 5th defendants by way of notice of discontinuance filed on 2nd May 2016. The 5th defendant had by then brought proceedings against Mr. Henry and People's Favourite Baking Co. Ltd; in a suit filed on 11th June 2015. Both Claims were ordered consolidated on 22nd February 2016 by Master Yvonne Brown as the issue to be determined and also the defendants in both instances are the same.

9 The essence of both claims against Mr. Romaine Henry is that he had operated a Nissan Urvan motor truck negligently; by driving at an excess or improper speed, failing to keep to his proper side of the roadway; overtaking without due regard for the safety of other road users and failing to take steps so as to avoid a collision. The defendant, People's Favourite Baking Company Limited, a limited liability company is the owner of the Urvan Nissan motor truck that Mr. Henry was driving at the material time. The claimants further aver, that the defendant is the master or principal of Mr. Henry and as such the company is vicariously liable for the harmful acts, death and damages caused by Mr. Henry's negligent driving.

THE DEFENCE

10 Initially when the Defence was filed in 2013; the defendant, People's Favourite Baking Co. Ltd in its defence was content to say it did not admit the averment made by the claimants as to the driver of its vehicle and his status as servant or agent. Subsequently in 2014, more than a year later the defendant was allowed to amend its defence and for the first time positively asserted that Mr. Henry “was not employed to the First defendant and was not authorized to drive the defendant's Nissan Urvan motor truck registered CG 7409”. They are therefore seeking to avoid liability by distancing themselves from the actions of Mr. Henry and denying the existence of either master/servant or agent/principal relationship.

11 The 2nd defendant was served with the claim as initiated by the Administrator General in Claim No 2012 HCV 07139, but there was no acknowledgement of service or defence filed by that defendant. An application was filed for default judgement on 18th September 2013 but there is no indication that the process was pursued or indeed granted. In respect of the Claim No. 2015 HCV 03013 Mr. Henry although named as the 1st defendant was never served and at this time any action against him is now statute barred. So the current trial seems to have proceeded solely against the defendant People's Favourite Baking Company Limited.

UNDISPUTED OR AGREED FACTS

12 There are not many points of disagreement where it concerns the events of the collision itself and the parties either agree to the following facts or they remained undisputed at the close of the evidence.

• (a) The first defendant, People's Favourite was at all material time the owner of the Urvan Nissan Motor truck registered CG 7409

• (b) That on the relevant date of 22nd December 2009 there was a collision between the defendant's vehicle and a police patrol motor car registered 203920 and owned by the Commissioner of Police.

• (c) That Mr. Romaine Henry was operating the defendant's truck at all material times.

• (d) That Sgt. Lyncent Smith was operating the police service vehicle at all material times

• (e) That the collision occurred along the Goshen main road in the parish of St. Elizabeth, which is a roadway accommodating vehicular traffic in two lanes going in opposite directions.

• (f) That the collision happened in the left lane as one faces the direction of Santa Cruz

• (g) That Sgt. Lyncent Smith was maintaining his proper side of road and that Mr. Henry who was driving from the opposite direction failed to keep to his proper side of the road and came over into Sgt. Smith's path resulting in a collision of both vehicles.

ISSUES

13 The defendant having denied that it is vicariously liable has sought to put “the claimant to strict proof” of liability. The issues for the Court's determination are three fold. Firstly is the 2nd defendant, Mr. Henry negligent; If the answer to the first question is yes, then I must secondly determine whether the 1st defendant was at the material time the master or principal of Mr. Henry. If this second question is answered in the affirmative, then a third question follows; that is, to what extent has the claimants established the quantum of their damages? These are questions to be answered from the facts proven on the evidence.

14 I am of the view that in considering the first issue, it is necessary to undergo a brief analysis of the law in relation to a motorist's duties to other road users while driving along a road; having regard to the conduct of both drivers in the particular circumstances of this case. In so doing, the question as to the liability of Mr. Henry will be answered from the facts that I find proved.

THE LAW

DUTY OF CARE FOR MOTORIST

15 There is no contention that a motorist owes a duty of care to all other users of the road to the extent that while driving he is expected to take care, and avoid damage and or injury to persons that are reasonably within his contemplation as users of the road; this...