Angela Diana Brooks-Grant v Western Regional Health Authority

• Jurisdiction: Jamaica
• Judge: Brown Beckford, J
• Judgment Date: 31 May 2016
• Neutral Citation: [2016] JMSC CIV 240
• Docket Number: CLAIM NO. 2014 HCV 05202
• Court: Supreme Court (Jamaica)
• Date: 31 May 2016

[2016] JMSC CIV. 240

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Brown Beckford, J

CLAIM NO. 2014 HCV 05202

Between

Angela Diana Brooks-Grant

(Administrator of the Estate of Michael Grant, Deceased)

Claimant

and

Western Regional Health Authority

1 ^st Defendant

The Attorney General of Jamaica

2 ^nd Defendant

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

Ms. Faith Hall instructed by the Director of State Proceedings for the Defendants.

Negligence - Assessment of damages — General damages under Law Reform (Miscellaneous Provisions) Act — Action for benefit of deceased's estate — Special damages — Pain and Suffering — Loss of life — Lost years — Multiplier — Multiplicand — Damages under Fatal Accidents Act — Dependency calculation.

Assessment of Damages — Damages under Law Reform (Miscellaneous Provisions) Act—Damages Under Fatal Accidents Act.

BACKGROUND

IN CHAMBERS

1 Michael Grant, his wife, Angela Brooks-Grant and their two children, Janay Grant and Micah Grant, all British citizens, were vacationing in Jamaica on the 13 ^th of August, 2009 when he fell ill and was taken to the Cornwall Regional Hospital. Mr. Grant was diagnosed with Type 2 Diabetes and was given medication and discharged. On the 18 ^th of August, 2009, after taking the medication prescribed, he had to be taken back to the Hospital as he was still unwell. Mr. Grant was examined on the 19 ^th of August, 2009 and admitted into the hospital where he was made to undergo a series of tests and scans. Thereafter, the doctors diagnosed him with a strangulated hernia; a complication which could be rectified with surgery.

2 Surgery was scheduled for the 19 ^th of August 2009 but despite being admitted, the surgery was not done. The surgery not being done up to the 22 ^nd August, 2009 and believing that he was not receiving adequate care, Mr. Grant discharged himself and travelled on the same day accompanied by his wife and children back to the United Kingdom. He died en route.

3 Mrs. Brooks-Grant, as administrator of her husband's estate, brought an action against the hospital management, the Western Regional Health Authority and the Attorney General for the benefit of the deceased estate, herself and their children for negligence in the treatment of Mr. Grant leading to his death. Having not defended the claim, judgment in default was entered against the Defendants and the matter has now come up for Assessment of Damages.

THE CLAIM

4 The Claimant claims the following relief:

• (a) Special Damages;

• (b) Damages for Negligence;

• (c) Damages under the Fatal Accidents Act;

• (d) Damages under the Law Reform ( Miscellaneous Provisions) Act; and

• (e) Interest and Cost

THE ASSESSMENT AND SUBMISSIONS

5 The only evidence for the court's consideration came from Mrs. Brooks-Grant. She gave evidence that her husband was in good health before coming to Jamaica. He was a Play Leader employed by the London Borough Council. His responsibilities included the constructing playground structure and overseeing children until they were picked up. She also said that he supervised between 4–5 persons and would work from 8:30am until the children were picked up by their parents after work. The age of retirement in England is 75 years of age for males and 65 years of age for females.

6 Mrs. Brooks-Grant also sought to explain a few issues:

• (a) That rent varied because her family lived on an estate.

• (b) The expenses were shared between the couple with Mr. Grant assuming responsibility for the greater share.

7 Ms. Minto, counsel for the Claimant argued that having not defended the claim the Defendants were not entitled to dispute the claim that Mr. Grant was misdiagnosed and was not provided with adequate care at the hospital. In the case of The Administrator General of Jamaica (Administrator of the estate Eric David Black, deceased, also known as David E.A. Black) v The Attorney General of Jamaica Suit No. Cl. 2001/A073, Brooks J (as he then was) said

“In allowing a judgment in default of defence to be entered against him the Attorney General is deemed to have admitted the contents of the paragraph of the Statement of Claim, which deal with liability, including those quoted above.”

8 She further submits that the Claimant ought to be able to recoup moneys spent on medical and funeral expenses that she would not have incurred had the Defendants' agents not caused her husband's death. In addition, she argues that the Claimant is able to lay a claim under the Fatal Accidents Act (hereinafter called FAA) as it allows dependants to lay claim for dependency. Further, it was submitted that the Claimant was also entitled to make claims on behalf of Mr. Grant's estate pursuant to the Law Reform ( Miscellaneous Provisions) Act (hereinafter called LRMPA). This act would permit a claim for damages for pain and suffering, loss of future earnings, loss of expectation of life and special damages.

9 Counsel for the Claimant submits that in accordance with the provisions of FAA, the Claimant would be entitled to £71,145.54 while under the LRMPA she would be entitled to $1,600,000.00 and £198,045.76. Special damages were calculated in the sum of £8001.17

10 On the contrary, Counsel Ms. Hall for the Defendant submits that sums claimed by the Claimant are excessive. She contends that the evidence presented was not sufficient nor was it at a standard that the court could properly and rightly act upon and properly calculate any damages for lost years. In all, the Defendants submit that all the Claimant is entitled to is $120,000.00 for Loss of Expectation of Life and special damages in the sum of £2,147.00.

DAMAGES UNDER LAW REFORM (MISCELLANEOUS PROVISIONS) ACT

11 Actions brought under the Law Reform ( Miscellaneous Provisions) Act (hereinafter called LRMPA) are for the benefit of the deceased's estate. Section 2 states that:

• 2.—-(1) 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 be, for the benefit of, his estate:

  Provided that this subsection shall not apply to causes of action for defamation.

From this section, it is clear that the law will allow damages claimed for (1) special damages, (2) loss of expectation of life, (3) funeral expenses and (4) lost years/ loss of future earnings. I will address each head in turn. It should be noted that funeral expenses can be recovered under this head or under the section 4(5) of FAA. However, I will deal with these expenses here as they have been claimed special damages.

A. Special Damages

12 It is trite that special damages must be specifically proven. Mrs. Brooks-Grant says she paid the following expenses in relation to Mr. Grant's death and funeral:

Hospital	—	£3 146.17
Refreshments	—	£1 200.00
Funeral Expenses	—	£3 476.00
Reception Hall	—	£ 185.00

13 The Claimant provided documentary evidence, with the consent of the defence, for all of the above expenses which have satisfied me on a balance of probabilities that these were expenses incurred. It is to be noted that the sum labelled ‘Hospital’ was a compilation of medical expenses being £947.00 and a cost of £2,199.17 for transportation back to the United Kingdom when Mr. Grant discharged himself out of hospital. I accept that these costs were incurred. Further, I find that Mr. Grant could not be liable for the consequences associated with discharging himself given his symptoms and the failure of the hospital to treat him promptly. In the circumstances, his action in so doing could not be regarded as unreasonable. There is no evidence that the expenses of refreshments for the repast as well as booking for the venue and services relating to the preservation and burial of the body, usually associated with funerals, were unreasonable. As such, I will award special damages in the sum of £8,007.17.

B. Pain and suffering

14 By virtue of section 2 of LRMPA, Mrs. Brooks-Grant can claim damages for pain and suffering and loss of amenities on Mr. Grant's behalf provided that there is a gap between his suffering and death. This was reaffirmed in the case of Elizabeth Morgan v Enid Forman and Owen Moss Cl. HCV 0427/2003.

15 The symptoms being experienced by Mr. Grant were not abated by the visit to the hospital. Indeed it was the evidence of Mrs. Brooks-Grant that they worsened. There is no evidence that the second diagnosis is related to the first or that the first was a misdiagnosis. The visits to the hospital having been occasioned by these symptoms, the hospital cannot be said to be responsible for all of his pain and suffering. There is no evidence from which the court can determine the extent to which they worsened. The maxim “equality is equity” is therefore appropriate.

16 In Attorney General v Devon Bryan [2013] JMCA Civ. 3 the deceased died within three to four hours of being shot. The award made for pain and suffering was $65,000.00. I agree that this would update to $141,627.02, that being for 3 hours of suffering. The illness suffered by Mr. Grant and the deceased in Bryan are different however. Mr. Bryan whose injury was a shot to the head, is seemingly more severe. Taking this into mind, I find that Mr. Grant ought to be awarded $100,000.00 for each day from his second visit to the hospital to the date of death. The figure however would be discounted by 50% for reasons above stated.

17 In the circumstances, I find that Claimant is entitled to $250,000.00 for Mr. Grant's pain and suffering.

C. Loss of expectation of life

18 In the case of Yorkshire Electricity Board v Naylor [1968] AC 529 Lord Morris of Borth-y-Gest expressed the governing principle of this area of damages. He said:

“It is to be observed and...