Attorney-General of Jamaica v Devon Bryan

• Jurisdiction: Jamaica
• Judge: Panton P
• Judgment Date: 08 February 2013
• Neutral Citation: JM 2013 CA 8
• Docket Number: SUPREME COURT CIVIL APPEAL NO 88/2007
• Court: Court of Appeal (Jamaica)
• Date: 08 February 2013

[2013] JMCA Civ 3

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Panton P

The Hon Miss Justice Phillips Ja

The Hon Mrs Justice Mcintosh Ja

SUPREME COURT CIVIL APPEAL NO 88/2007

Between

The Attorney-General of Jamaica

Appellant

and

Devon Bryan (Administrator of Estate of Ian Bryan)

Respondent

Miss Hazel Edwards instructed by the Director of State Proceedings for the appellant

Respondent absent and unrepresented

NEGLIGENCE - Fatal accident - Damages - Challenge to quantum on appeal - Whether the quantum of damages excessive - Whether the sum awarded for pain and suffering excessive

Panton P

1 On 25 January 2013, we ordered as follows:

‘The appeal is allowed in part. The award for loss of expectation of life is reduced from $250,000.00 to $120,000.00. The order of Sinclair-Haynes J is affirmed in all other respects. The appellant is to have one quarter of his costs of the appeal to be agreed or taxed.’

At that time we indicated that our written reasons would be handed down today.

2 This appeal was from the judgment of Sinclair-Haynes J, wherein on 29 June 2007 she entered judgment in favour of the respondent in this action for negligence and awarded damages as follows:

• ‘1. General damages

  • (a) In the sum of $480,768.75 in respect of lost earnings with interest at 6% per annum in respect of the pre-trial years from the 4 ^th December 2001 to the 21 ^st June 2006 and thereafter at 3% to 29 ^th June 2007; and

  • (b) in the sum of $65,000.00 which represents the award for pain and suffering with interest at 6% per annum from the 4 ^th December 2001 to the 21 ^st of June 2006 and thereafter at 3% to the 29 ^th of June 2007.

• 2. Loss of Expectation of Life

  $125,000.00

• 3. Special Damages

  $28,000.00 with interest at 6% per annum from the 4 ^th of December 2001 to the 21 ^st of June 2006 and thereafter at 3% to the 29 ^th of June 2007.

• 4. Costs to be agreed or taxed.’

3 The appeal was in respect of the sums listed at items 1(a) and (b) and 2 above. The Attorney-General and an unnamed party were found by the learned judge to be blameworthy in respect of the death of the deceased. Accordingly, she apportioned damages equally between the Attorney-General and that party. The damages set out in paragraph one are the Attorney-General's half share of the damages awarded.

4 The circumstances giving rise to this suit are most unfortunate. The deceased was at a dance on 6 July 1996 at the Donald Quarrie High School in St Andrew, when he and another man had an altercation which resulted in him being stabbed in the back by the man. He, while suffering from the stab injury, and with a walking stick in hand, chased the man. While running, he came upon a police officer who shot him in the chest. The finding of the learned judge was that there was no reasonable and probable cause for the shooting. According to the medical evidence, death was due to hypovolemic shock as a result of gunshot and stab wounds to the chest.

5 At the commencement of the trial on 5 April 2007, counsel for the respondent applied for leave to call as a witness Mr Devrell Dwyer the owner of Dwyer's Trucking and Construction, to give evidence as to the earnings of the deceased. Mr Kevin Powell, counsel for the appellant, objected on the ground that the application should have been made at the case management conference which had been held on 31 July 2006. He pointed to rule 29.11 of the Civil Procedure Rules (CPR) which states that where a witness statement had not been served, a witness may not be called unless there is a good reason for the failure to seek relief from the sanction. Counsel for the respondent indicated that the information that the deceased, who was unmarried, worked at Dwyer's Trucking, was not known by his mother until two years after his death. However, that information was not communicated to counsel until after the case management conference. In December 2006, counsel was acting on the basis that the deceased worked at the Jamaica Public Service Company as a notice of intention to tender in evidence statements made in a hearsay document, dated and filed on 8 December 2006, in respect of the income of the deceased at the Jamaica Public Service Company was served on the appellant. As it turned out, there was nothing forthcoming on this matter from the Jamaica Public Service Company. On 10 January 2007, counsel received a letter from Mr Dwyer; hence the late application.

6 The learned judge ruled that the reasons outlined by counsel for the respondent were good reasons. She saw no prejudice to the appellant.

7 The evidence given by Mr Dwyer was that the deceased was employed to him from late 1995. He started as a watchman, then he became an assistant steel man. He was paid approximately $20,000.00 per month, working five days each week. If he worked on a Saturday or Sunday, he received more. The witness was cross-examined by Mr Powell. During cross-examination, the witness said that he did not deduct tax from the salary of the deceased.

8 In making the award for pain and suffering, the learned judge said:

‘Ian Bryan succumbed to his injuries shortly after they were inflicted. After the infliction of the gun shot wound he spoke to the officer. Both Shawn and Damain testified that he was alive up to the point he arrived at the hospital. Damages for pain and suffering must be confined to the few hours he remained alive. The sum awarded cannot be more than a nominal amount …’

Having made a comparison with a 2004 award by the Supreme Court, and having applied the consumer price index, she assessed the sum of $130,000.00 as being a reasonable figure.

9 In respect of the award for loss of expectation of life, the learned judge referred to several decisions of our courts as well as to cases discussed in Kemp & Kemp: ‘The Quantum of Damages.’ She noted that, historically, the award under this head of damages has been of a conventional sum and that moderation is to be exercised in fixing the amount. In the circumstances, she determined that the sum of $250,000.00 was appropriate.

10 As regards the award for the ‘lost years’, the judge accepted the submission of counsel for the appellant that a multiplier of 14 was appropriate. She gave due consideration to the oft-cited cases of Gammell v Wilson [1981] 1 All ER 578 and JPS Co Ltd v Morgan & Jackson [1986] 23 JLR 138. She noted that the evidence was not very helpful, but felt obliged to estimate a sum that would have represented the living expenses of the deceased. The learned judge said she was forced to assume that the deceased would have spent about one-third of his income on himself and two-thirds on his estate. In the end, she ruled that the amount that would have remained for the benefit of the estate was one-third, and that was calculated at $961,537.50; hence the award of a half of that sum to be paid by the appellant.

Grounds of appeal

11 The appellant relied on the following grounds of appeal:

‘i. That the learned Judge erred in law in exercising her discretion to allow the Claimant to call a witness without a witness statement or witness summary for that witness.

ii. The learned Judge erred in law in making an award for Lost Years without sufficient evidence on which to do so.

iii. The learned Judge erred in law in making an award of $250,000.00 for Loss of Expectation of Life which is not a moderate or conventional sum.

iv. The learned Judge erred in finding that the sum of $130,000.00 is a nominal sum for damages for pain and suffering in the circumstances where the deceased died within four hours of his injuries.’

12 Miss Hazel Edwards, for the appellant, submitted that the learned trial judge wrongly exercised her discretion in respect of permitting the witness Dwyer to be called without a witness statement having been served. She said that the appellant was taken by surprise by this development and was not afforded an opportunity to prepare a response to the new evidence. She suggested that a more just result would have been for the trial to be adjourned to allow the respondent to file and serve a witness statement for the said witness. This would have allowed the appellant time to respond and would have avoided the possibility of prejudice to the appellant. She submitted that a judicial statement is necessary on the issue to prevent judges from repeating the approach taken by Sinclair-Haynes J in this case.

13 It should be mentioned that we did not have the benefit of hearing submissions on behalf of the respondent. He was present at the case management conference at which the date for hearing this appeal was fixed. Although he was reminded by the Registry of today's hearing, he was absent when the case was called on. There being no indication of the reason for his absence and given the age of the matter, the court proceeded with the hearing of the appeal.

14 Rule 26.8 (2) of the CPR gives the court the power to grant relief if it is satisfied that the failure to comply was not intentional and there is a good explanation for the failure. There is nothing to indicate that the failure here was intentional, and the learned judge considered the explanation to be a good one. In considering whether to grant relief, the learned...