Jamaica Pre-Mix Concrete Ltd v Shawn Hennie
| Jurisdiction | Jamaica |
| Judge | Phillips JA,Foster-Pusey JA,Simmons JA |
| Judgment Date | 29 January 2021 |
| Neutral Citation | JM 2021 CA 12 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 24/2017 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Civ 7
IN THE COURT OF APPEAL
THE HON Miss Justice Phillips JA
THE HON Mrs Justice Foster-Pusey JA
THE HON Miss Justice Simmons JA (AG)
SUPREME COURT CIVIL APPEAL NO 24/2017
(Administrator in the estate of Brenton Hennie, deceased)
Patrick Foster QC and Mrs Symone Mayhew instructed by Symone Mayhew for the appellant
Ms Kashina Moore instructed by Nigel Jones and Company for the respondent
I have read in draft the comprehensive and thorough judgment of my sister Foster-Pusey JA and I agree entirely with her reasoning and conclusion. I wish, however, to add a few words of my own with regard to certain aspects of the issue of damages, which was also dealt with by my learned sister in her analysis and decision.
G Fraser J (Ag), the learned judge in the court below, had relied on Henegham (Son and Administrator in the Estate of James Leo Henegham, (Respondent) v Manchester Dry Docks Ltd and others [2014] EWCA 4190 and the sum of £175,000.00 which had been identified, by consent, as an appropriate award for 100% liability arising out of the claim. As will be explained in greater detail in Foster-Pusey JA's judgment, a claim had been pursued on behalf of the deceased, who had contracted lung cancer after exposure to asbestos. It turned out, however, that since the defendants before the court were only responsible for 35.2% of the exposure, applying the ‘Fairchild’ exception, they were required to pay £61,600.00. While it is therefore understandable that the judge would have felt it appropriate to rely on an award representing 100% liability, I agree with my learned sister that the fact that the composition of the consent award is unknown, made it inappropriate for the award to be relied on in the instant case. Furthermore, it does appear that the figure of £175,000.00 included elements apart from compensation for personal injury, as it far exceeded what would even have been contemplated by the Judicial College Guidelines for the Assessment of Personal Injury 15 th edition, of the courts in England, which provides for an upper limit of £71,500.00 as compensation for lung cancer.
This brings me to the question as to whether it would be appropriate for us to utilize these guidelines in the assessment of damages in our jurisdiction. Again, I am in agreement with my sister that, in light of the stark difference in social, economic and industrial conditions between England and Jamaica, this would not be an appropriate practice. As difficult as it may be in rare and peculiar cases, judges in our courts have to strive to arrive at our best estimate of appropriate levels of compensation for personal injuries in Jamaica. Where we seek assistance from awards in other jurisdictions, it is best that we search for and rely on awards made in countries which are similar to us in social, economic and industrial conditions. Such an approach would avoid the difficulty of determining what level of discount would be required to be applied to an award made in a country with dissimilar conditions, in order for it to reflect our reality.
No doubt, as their Lordships opined in the Judicial Committee of the Privy Council case of Scott v Attorney General and another [2017] UKPC 15, we would also require expert evidence to arrive at the appropriate level of discount. In that case, an appeal from the Court of Appeal in the Bahamas, attorneys for the appellant had argued that the courts in the Bahamas had developed a principle that guideline figures for personal injuries, suggested by the Judicial Studies Board of England, would be routinely increased to reflect different levels of the cost of living between England and the Bahamas. Their Lordships concluded that there was no such principle for three reasons, one of which was that (see paragraph 16 of the judgment):
“…Finally, it would be wrong to apply an unchanging uplift without evidence of an actual, as opposed to a presumed, difference in the cost of living between England and the Bahamas.”
Their Lordships examined cases on which the appellant had relied to advance the principle, and remarked that in none of the cases was evidence adduced as to what the “mooted” difference in the cost of living between the two countries actually was or the basis on which it had been calculated. It was, however, suggested to their Lordships that this was a matter in which judicial notice could be taken. Their Lordships did not accept this proposition and stated at paragraph 42 of the judgment:
“It is plainly impossible to take judicial notice of the difference in cost of living between the Bahamas and England. Where that difference was accepted in cases such as Acari and Matuszowicz, it must have been on the basis of agreement or assumption. Absent agreement, however, this is not something which can be assumed. For the reasons given earlier, the Board considers that a mechanistic adherence to JSB guidelines with an automatic increase cannot be the proper way in which to assess general damages in the Bahamas. If such an approach was appropriate, it could only be contemplated on the basis of evidence to establish the fact that there was a difference in the cost of living between the two countries, rather than an assumption that this was so. It should be made clear, however, that the Board does not commend such an approach. As already observed, JSB guidelines can provide an insight into the proper awards of compensation for pain and suffering and loss of amenity in the Bahamas but only in so far as they meet the standards and expectations of Bahamians. An automatous method of assessing general damages by seeking out the norm in England and adding an automatic increase cannot fulfil those requirements.” (Emphasis added)
I am in agreement with these sentiments, and do not think that we should pursue an automatous method of assessing general damages by seeking out the norm of damages in countries whose cost of living and social economic and industrial conditions may be dissimilar from those in Jamaica, and applying a discount or an uplift.
It would certainly be a very helpful exercise if we were to produce, in Jamaica, a similar publication to the English guidelines. I hope that such an undertaking will be pursued as it would be of immense help to both practitioners and the Bench.
I therefore agree with the orders proposed by my learned sister.
The appellant is a company that manufactures and supplies ready-mixed concrete in Jamaica. The concrete is comprised of cement and various ingredients such as retarders and plasticizers.
Mr Brenton Hennie (“Mr Hennie”), now deceased, worked with the appellant, firstly as a labourer in a non-staff position, and then as a staff member in the capacity of a pump attendant over the period 1997–2012. In 2012 Mr Hennie was diagnosed with bronchoalveolar carcinoma (lung cancer). Mr Hennie sued the appellant on the basis that, inter alia, the appellant carried out its operations in a negligent manner by causing him to be excessively exposed to cement dust, as well as fumes from the concrete mixture, which contained hazardous substances. He claimed that this is what led to his developing lung cancer.
The claim was heard on 24 February, 1, 2 and 4 March 2016. On 12 September 2016, Georgiana Fraser J (Ag) (as she was then) (“the judge”), found the appellant liable and awarded damages.
Unknown to the judge and counsel, the appellant had passed away a few days before the judgment was handed down. Since certain heads of damages were no longer relevant, such as cost of future domestic assistance and cost of future medical care, on 27 January 2017, after hearing submissions on 19 September 2016 and 26 January 2017, the judge varied the award of damages to omit them. In addition, the award for pain and suffering and loss of amenities was reduced. The orders made were:
“1. General damages — $24,000,000 with interest at a rate of 3% per annum from 6 th January 2013 until 27 th January 2017.
2. Special damages — $80,000 with interest at a rate of 3% per annum from 30 th January 2012 until 27 th January 2017.
3. Costs to be agreed or taxed.
4. Pursuant to part 42.8 of CPR this Judgement [sic] shall not take effect until 6 th March 2017.
5. There be a stay of execution of three (3) weeks following the 6 th March 2017.
6. In relation to applications made on to [sic] 19 th Sept 2016 and 26 & 27 of January 2017, no order made as to costs.”
The respondent, Mr Shawn Hennie, administrator of Brenton Hennie's estate, by order of the court, had previously been substituted as claimant and has continued proceedings on behalf of the estate.
By notice of appeal filed 24 March 2017, the appellant has challenged the judge's decision and award of damages. At first instance, the appellant had accepted that, as Mr Hennie's employer, it owed him a duty of care. It had however opposed liability on the basis that it had not breached its duty of care, causation had not been established and the illness which Mr Hennie suffered was not reasonably foreseeable.
As filed, the notice of appeal included a challenge by the appellant to the judge's finding that it had breached its duty of care. However, this was not pursued at the hearing of the appeal. Instead, the appeal centred on the questions as to whether the judge erred in accepting the evidence of Dr Margaret Dingle Spence, (“Dr Dingle Spence”), one of the two medical experts who testified at the trial, misinterpreted the studies on which she relied, erred on the issue of causation and remoteness of damage, and made an erroneous assessment in her award of damages for pain and suffering and loss of amenities. The appellant's position was, therefore, that while it owed Mr Hennie a duty of care,...
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