Landis Blake v Ewan Chang
| Jurisdiction | Jamaica |
| Judge | Brown Beckford J, |
| Judgment Date | 12 June 2020 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2006/HCV 04007 |
| Date | 12 June 2020 |
[2020] JMSC Civ 116
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
CLAIM NO. 2006/HCV 04007
(Dependant and Administrator Ad Litem of the Estate of Lamar Blake)
and
Ms. Catherine Minto and Miss Gabrielle Warren instructed by Nunes, Scholefield Deleon & Co. for the Claimant
Mr. Kwame Gordon instructed by Samuda & Johnson for the 1 st Defendant
Damages — Assessment — Fatal Accident — Law Reform (Miscellaneous Provisions) Act — Fatal Accidents Act
This matter has come to an end nearly 20 years after the death of Lamar Blake. Regrettably, I have contributed to this delay in the delivery of this judgment and I sincerely apologize.
For convenience first names will be used in this judgment. No disrespect is intended towards the parties by employing this approach.
The Claimant, Mr Landis Blake, is a Dependant and the Administrator Ad Litem of the Estate of Lamar Blake. The first and second Defendants are the owner and driver of a motor truck on which Lamar Blake was a passenger. On November 13, 2000 this motor truck was involved in a collision which sadly caused the death of Lamar. This claim was initiated against the Defendants on the 10 th of November 2006. The Claimant asserts that the 2 nd Defendant “so negligently drove, managed or controlled the 1 st Defendant's motor truck that he caused the said vehicle to leave the main road and collide with an embankment” resulting in the death of Lamar.
Mr Blake seeks damages against the Defendants for the benefit of the deceased's estate pursuant to the Law Reform ( Miscellaneous Provisions) Act (LRMPA) and for the benefit of the dependants of the deceased by virtue of the Fatal Accidents Act (FAA).
The following relief is sought:
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a) Damages under the Fatal Accidents Act
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b) Damages under the Law Reform Miscellaneous Provisions Act
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c) Interest on the said Damages
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d) Costs
Default Judgment was entered for the Claimant against the Defendants for damages to be assessed. By this, the Defendants are taken to have accepted the version of facts with respect to the allegation of negligence against the 2 nd Defendant as asserted by the Claimant.
The evidence for the Court's consideration came from Mr Blake, and is as follows:
The deceased Lamar Blake was born on October 7, 1979 and was 21 years old at the date of his death. He was employed by the Claimant as a truck driver. He was so employed after he left school at 19 years old. He hauled marl, sand, grit and bottled coconut water across several parishes. He also hauled crushed stone from a facility in St. Elizabeth. At the time the Claimant owned a 1087 International Truck which Lamar drove. Prior to Lamar working for him, he personally drove the truck for several years. He stayed home after Lamar commenced driving the truck.
The Claimant states that Lamar earned a salary of Twelve Thousand Dollars ($12,000.00) to Fifteen Thousand Dollars ($15,000.00) weekly depending on the amount of loads he hauled per week. He drove every day of the week depending on the availability of work. The jobs were variable from week to week.
Mr Blake identifies Rosalee Cooper-Blake, mother of the Lamar and Melanie, Mark and Christine Blake, his siblings as his dependants. Christine is not mentioned in the Particulars of Claim. Mr Blake is formerly an electrician. He ceased to be so engaged when he entered the trucking business. Mrs Blake is a trained nurse which occupation she was engaged in at the time of Lamar's death, and after. His siblings were students. At his insistence, Lamar contributed Three Thousand Dollars ($3,000.00) weekly for the house. Of his own volition, having a good relationship with his sister Melanie, Lamar contributed Seven Thousand Dollars ($7,000.00) per term towards her school fees. Likewise, he contributed One Thousand, Five Hundred Dollars ($1,500.00) towards purchasing school shoes for his brother Mark. Occasionally, he saw Lamar give his mother pocket money of Three Thousand Dollars ($3,000.00) to four thousand dollars ($4,000.00) per month. He knew Lamar to be saving to purchase a motor car and that he saved $5,000 per week towards this effort. The balance of his pay, Lamar spent on himself.
He incurred expenses of one hundred, Ninety-Two Thousand Dollars and Five Hundred and Eighty Six Dollars and Sixty Cents ($192,586.60) for Lamar's funeral.
In cross-examination he said he was not aware where Lamar saved his money to buy a car. He overheard him tell his mother he was saving to buy a car.
Lamar, he said in cross-examination, started working with him in January 2000. Though initially claiming Lamar had the requisite license to drive his truck at 19 years old, he resiled from that position agreeing that the license Lamar had at first was to drive a smaller tonnage truck. However, Lamar later got an addition to his license. He also agreed that a condition of the insurance policy was that the driver had to have at least three years' experience. In re-examination he said he did not recall if the insurance policy had an age restriction.
The parties were directed to file and exchange written submissions at the end of trial. The submissions were fully considered by me but I will only refer to them as is necessary to explain the position I take on a particular issue.
The Law Reform ( Miscellaneous Provisions) Act (hereinafter referred to as LRMPA) by virtue Section 2 provides that:
2.—-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.
Against this background, an award is usually made for special damages, loss of expectation of life, funeral expenses, and loss of future earnings (the ‘lost years’) for the benefit of the deceased's estate.
The claim for Funeral Expenses can be recovered under the Fatal Accidents Act or the Law Reform ( Miscellaneous Provisions) Act. Recovery in this claim was sought under the LRMPA
The sum of One Hundred and Ninety-Two Thousand, Five Hundred and Eighty Six Dollars and Sixty Cents ($192,586.60) was specifically pleaded in the amended Particulars of Claim and attested by receipts and other supporting documents. The sum was accepted by the 1 st Defendant. This sum is therefore awarded to the Claimant.
The LRMPA, provides that the estate of the deceased is entitled to claim for the loss of expectation of life. The sum is to be a conventional one based on the prevailing authorities.
In the case of Yorkshire Electricity Board v Naylor [1968] A.C. 529, 545, Lord Morris conveyed the guiding principle for awarding damages under this head. He indicated that:
“It is to be observed and remembered that the prospects to be considered and those which were being referred to by Viscount Simon L.C. in his speech were not the prospects of employment or of social status or of relative pecuniary affluence but the prospects of “a positive measure of happiness” or of “a predominantly happy life.”
Counsel for the Claimant begun her submissions under this head by relying on the case of Benham v Gambling [1941] 1 All E. R where the Court set out the main considerations to be borne in the mind. The assessment of these damages is not done on the “actuarial or statistical” basis and should not be calculated on the length of life which is lost or the number of years of life before it. The guidance from Benham is that the Court is to “give what is fair and moderate and to use common sense”. It was said by Viscount Simon L.C. that “it is not the assessment of compensation for loss of years or for future pecuniary prospects, but it is the fixing upon common-sense principles of a reasonable figure for the loss of prospective happiness.”
Reliance was also placed on the dictum of Lord Scarman in the case of Lim Poh Choo v Camden and Islington Area Health Authority [1979] 2 All E.R 910 (at p 920) where he said:
“An award for pain, suffering and loss of amenities is conventional in the sense that there is no pecuniary guideline which can point the way to a correct assessment. It is, therefore, dependant only in the most general way on the movement in money values. Like awards for loss of expectation of life, there will be a tendency in times of inflation for awards to increase, if only to prevent the conventional becoming the contemptible.”
Counsel also referred to the decision in Angella Brooks Grant v Attorney General [2016] JMSC Civ. 240, where the Court awarded Two Hundred Thousand Dollars ($200, 000.00) for loss of expectation of life and advanced that this amount should be awarded in the case at bar. Counsel pointed to the fact however that this judgment is on appeal in relation to the multiplicand.
On the other hand, Counsel for the 1 st Defendant put forward the case of Administrator General for Jamaica v People's Favourite Baking Company Ltd & Romaine Henry [2017] JMSC Civ. 11, where the court awarded the sum of One Hundred and Twenty-Thousand Dollars ($120,000.00) for loss of expectation of life. The submission was that a similar award should be made based on the recency of that decision.
The amount of the conventional sum was considered in the Court of Appeal case of The Attorney General v Devon Bryan [2013] JMCA Civ.3. The sum of Two Hundred and Fifty Thousand Dollars ($250,000.00) was awarded by the Court at first instance. On appeal, the Court discussed...
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