Morgan, Elizabeth v Enid Foreman & Owen Moss

• Jurisdiction: Jamaica
• Judge: Sinclair-Haynes J. (Ag)
• Judgment Date: 15 October 2004
• Judgment citation (vLex): [2004] 10 JJC 1501
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. HCV 0427/2003
• Date: 15 October 2004

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. HCV 0427/2003

BETWEEN

ELIZABETH MORGAN

CLAIMANT

AND

ENID FOREMAN

1 ^ST DEFENDANT

AND

OWEN MOSS

2 ^ND DEFENDANT

Miss Deidre Powell

Miss Lascine Wisdom-Barnett Thomas and Thomas

FATAL ACCIDENTS - Bicycle/Motor truck accident - Defendant wholly liable - Claim for damages under the Fatal Accidents Act - Damages under Law Reform (Miscellaneous Provisions) Act - Special damages - Award of damages for pain and suffering, loss of expectation of life and special damages

Sinclair-Haynes J. (Ag)

1 The accident happened at about 10 a.m. on the 22nd of July 2002 on the Mandela Highway. The deceased was a lad of sixteen years. He was returning from a wholesale in Duhaney Park where his mother had sent him on an errand. As he rode his bicycle with about nine packs of biscuits in a small box in front of him, a truck driven by the defendant, Mr. Owen Moss, struck him. He was flung from the bicycle and sustained severe head and other injuries. He seemed to have had a very limited degree of consciousness. He died the following morning.

2 The defendant was found wholly liable for the accident. There is no appeal from that aspect of the decision. In the circumstances it is not necessary to repeat those findings.

3 The Claimant's claim

4 The Claimant's claim is for the following:

• • Damages under the Fatal Accident's Act (F.A.A.) for three dependant's namely herself, the father of the Deceased and her daughter, the sister of the Deceased;

• • Damages under the Law Reform ( Miscellaneous Provision) Act (L.R. (M.P.) A.);

• • Special Damages incurred as a result of the Deceased's death.

5 Miss Deidre Powell submitted that the claimant was entitled to the following:

• • general damages (pain and suffering and loss of amenities)-$3,000,000.00; special damages- $306,620.00;

• • damages under the Fatal Accidents Act and the Law Reform ( Miscellaneous Provisions) Act $3,166,800.00;

• • loss of expectation of life-$ 100,000.00; interest and costs.

6 Submissions re: Pain and suffering

7 The Deceased sustained the following injuries:

• abrasion to his right forehead

• abrasion to his left lateral cheek and side of mouth

• two lacerations to the scalp

• 5cm laceration to the frontal area of the vertex in the midline;

• 1cm laceration in left parietal

• multiple abrasions on the body involving the right elbow, lateral left buttocks and posteriolateral left chest

• severe head injury

8 In support of the claim for pain and suffering and loss of amenities she relied on the case of Errol Cunningham v Stanley Mackenzie and Anthony Campbell suit no. C.L. 1985 C447. In that case a 78-year-old man was injured in a motor vehicle accident. He sustained severe head injuries, damage to his pituitary gland, upper motor neurone facial paralysis, anosmia (failure to recognize fragrance and flavours) and dyspepsia among other serious injuries. He was assessed at 50% disability from which the doctor said it was unlikely he would recover. He was awarded general damages in the sum of $400,000 in June 1990. Today that award translates to $5,253,448.00

9 She also relied on the case of Karen Brown (b.n.f. Cynthia McLaughlin) and Cynthia McLaughlin v Richard English and Alfred Jones cited in Ursula Khan's Recent Personal Injuries Awards made in the Supreme Court volume 4 page 190 in which a 14 year old student was injured. She suffered head injuries with probable basal skull fracture, cerebral concussion with loss of consciousness for 2 days, laceration below right ear, injury to left leg causing swelling and tenderness along lateral upper thigh lasting more than 12 months, bleeding from the right ear among other things. She was assessed at 60% brain damage. She had a keloidial scar below the right ear producing cosmetic disability and causing emotional problem. She had difficulty coping with her schoolwork. She was awarded $385,000.00 for general damages that now values $4,125,773.00

10 Entitlements under the L.R. (M.P.) A.

11 Pain and Suffering

12 Section 2-(l) states;

'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:'

13 It is indubitably settled that the personal representatives can recover damages that the Deceased could have recovered and which were a liability on the wrongdoer at the date of death (see Rose v Ford (1935) 1 K.B. 99 per Greer L.J).

14 In both cases relied upon by Miss Powell, the victims survived and were condemned to a life of suffering. In the instant case however, the injured person died the following morning. Had he lived he would have been entitled to recover damages for the injuries he sustained. His personal representatives are now entitled. However they are only entitled to recover nominal damages since he only survived for less than two days.

15 In Rose v Ford the judge had awarded the sum of 500 shillings which sum included damages for pain and suffering and damages for the loss of the deceased's leg. The damages for pain and suffering were confined to the four days that the deceased lived. Of that figure, the Court of Appeal quantified the damages attributable to pain and suffering at a nominal sum of 20 shillings. The Court of Appeal felt that the learned judge estimated the damages (the remaining 480 shillings) upon the assumption that the deceased would have lived as a one legged woman for the rest of her natural life. The Court, however, was of the view that she was only entitled to damages in respect of the loss of her legs for two days in addition to her pain and suffering. However it was clearly stated that the figure 'cannot be more than a nominal amount'. Accordingly, the Court reduced the figure from 480 shillings to 40 shillings. In the circumstances, I will award the sum of $50, 000 for pain and suffering.

16 Loss of Expectation of Life

17 Lord Morris of Borth-Y-Gest- made the principle limpid in Yorkshire Electricity Board v Naylor(1968) AC 529, at page 545, he said:

'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.'

18 How are such damages quantified?

19 A conventional sum is awarded. The principle exhorted in Benham v Gambling 1941 AC 157 at 166 is that a moderate figure is to be chosen. Indeed the figure awarded in Benham v Gambling in 1941 was £200 for a child of two and a half years where his circumstances were very favourable.

20 In 1966 that figure was increased considerably to £500 to compensate for the subsequent drop in the value of the dollar. (See Andrews v Freeborough (1967) Q.B.D. 1 and Yorkshire Electricity Board v Naylor. Some Jamaican awards

21 In the case of the Administrator General for Jamaica (Administrator for the estate of Dereck Grant deceased) v The Shipping Association and Jeffery...