Reginald Brown and Another v Balford Douglas and Others

• Jurisdiction: Jamaica
• Judge: Anderson, K., J.
• Judgment Date: 15 November 2013
• Neutral Citation: [2013] JMSC Civ 205
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2009 HCV 06124
• Date: 15 November 2013

[2013] JMSC Civ. 205

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2009 HCV 06124

Between

Reginald Brown (Father and Near Relation of Demory Brown, Deceased)

First Claiamnt

and

Alberta Tugman (Mother and Near Relation of Demory Brown, Deceased)

Second Claimant

and

Balford Douglas

First Defendant

and

Andre Douglas

Second Defendant

and

Deborah Douglas

Third Defendant

CLAIM FOR ACTUAL AND/OR REASONABLY EXPECTED PECUNIARY LOSS, LOSS OF EXPECTATION OF LIFE, LOSS OF YEARS AND FUNERAL EXPENSES UNDER THE FATAL ACCIDENTS ACT

Anderson, K., J.

FACTS

1 This claim pertains to a regrettable situation in which, as is undisputed, Demory Brown, had while travelling on abroad a Toyota Coaster Bus, registered at PB 9423 andowned by the defendants, on April 25, 2009, fallen through that bus' open door as a result of which, one of the bus' wheels ran over Demory's head, crushing same and thereby killing Demory. At the time of his unfortunate death, Demory brown was then sixteen years old.

2 This claim when initially filed on November 23, 2009 had only one claimant, that being the deceased's father, Reginald Brown, who filed the claim in his capacity as one of the deceased's “near relations.” The defendants, as was admitted, are all joint owners of the relevant bus and also as is not disputed, at the material time, the first and second defendants respectively, were functioning on that bus as the driver and conductor thereof.

3 An amended claim form was filed on June 20, 2009, in which the second claimant, Alberta Tugman, who is the deceased's mother, was added as a party to the claim. In their amended particulars of claim the claimants have, inter alia, alleged as follows: “that Demory Brown was born on August 18, 1992, and was sixteen at the time of his death and was a 10 ^th grade student at the Vere Technical high school at the time of his death. They also alleged that the claimants would have had a dependency in the future on the income of Demory Brown for his maintenance, income and support and that Demory would have contributed at least one third of his income to the claimants' maintenance and that Demory was a trainee tiler and would have earned an income in the future as a skilled tradesman.”

4 This claim was brought by the claimants solely pursuant to the provisions of the Fatal Accidents Act . There was reference in the claimants' particulars of claim, to a claim for interest under the Law Reform (Miscellaneous Provisions) Act , but on the first day of trial, the claimants' counsel – Mr. Daley, had made it clear that this was a typographical error and that the claim was in fact being pursued, in all respects, solely pursuant to the provisions of the Fatal Accidents Act . The claimants brought this claim as parents (“near relations”) and alleged dependants of Demory Brown, who is now deceased. The claimants' claim was one for damages for negligence, against the defendants. They claimed for loss of reasonably expected financial dependency and damages for loss of expectation of Demory Brown's life, loss of years and special damages in the sum of $321,000.00 for funeral expenses, wake, vault for burial, death certificate and police report. They also claimed interest pursuant to the Law Reform (Miscellaneous Provisions) Act .

5 The claimants' counsel submitted that the claimants' claim contained all of the elements necessary to establish a claim under the Fatal Accidents Act . Counsel submitted that this is so because the claimants are the parents or near relations of the deceased. Counsel for the claimant also submitted that the claimants are both entitled to an award of future expected dependency as a result of the fact that they were dependants of the deceased. The claimants have relied heavily on Taff Vale Railway Co. v Jenkins [1913] AC 1 [1913] AC 1, to support their position that they are entitled to damages for reasonably expected pecuniary loss. The claimants' counsel in his submission relied on the following quote, taken from the said case, to support that position:

“It is not a condition precedent to the maintenance of an action under the FAA 1846 that the deceased should have been actually earning money or moneys worth or contributing to the support of the Plaintiff.”

6 The claimant continued to cite from Lord Atkinson's judgment in the said case at page 7 as follows:

“I think it has been well established by authority that all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact — there must be a basis of fact from which the inference can be reasonably drawn…”

7 Counsel for the claimants said thatTaff Vale Railway Co. v Jenkins (op. cit) remains good law and as such the claimants are entitled to pursue their claim as pleaded.

8 However, the Defendants submitted that the claimants are not entitled to damages for actual or reasonably expected pecuniary loss under the Fatal Accidents Act because they were not dependants of Demory Brown before or at the time of his death. They also submitted that the second claimant's claim should fail in its entirety because no evidence was brought before the court to support the claim for damages for reasonably expected pecuniary loss. Counsel for the defendants also submitted that the case of Taff Vale Railway Co. v Jenkins (op. cit) did not support the claimants' position because the principle laid down in that case does not apply to Jamaica and is only the state of law in the United Kingdom. The defendants' counsel however said that even if the principle in that case were to be applied in Jamaica, the claimants have failed to meet the high threshold that they had “a reasonable expectation of a pecuniary benefit from the continuance of Demory's life.”

ISSUES:

• i. The main issue in this case is whether the Claimants are dependants of Demory Brown under the Fatal Accidents Act.

  Other issues are:

• ii. Whether either or both claimants would be able to establish at trial, by means of the evidence which it is expected that they will lead on their behalf at trial, any actual or reasonably expected future pecuniary loss suffered by either or both of them, as a consequence of the deceased's death.

• iii. Whether a claim for funeral expenses, loss of expectation of life and lost years can be maintained by the claimants under the Fatal Accidents Act.

• iv. Whether summary judgment in respect of this claim, ought to be awarded in favour of the defendants, pursuant to the provisions of Rule 39.9, 26. 2 and 15.2 of the Civil Procedure Rules.

ISSUES:

THE LAW

9 The relevant statutes are the Fatal Accidents Act and the Law Reform (Miscellaneous Provisions) Act . The object of the Fatal Accidents Act is to provide a right of action to dependants of a deceased person against the person liable in law for his death and the object of the Law Reform (Miscellaneous Provisions) Act is to provide a right of action to the personal representatives of a deceased person for the benefit of the deceased's estate, in circumstances wherein, the deceased had died due to the unlawful actions of another. While these two statutes are inter-related and dependent on the manner in which a claim has been particularized, it may be necessary in some cases to apply these two statutes conjunctively, in ascertaining what award of damages is to be made in any particular case. It is nonetheless important to note, that not only are different principles of law applicable to the assessment by a court of damages under each of these statutes, but further, a claimant will never be permitted to recover as damages, more than is meet and just in any particular case. As such, no over-compensation of a claimant should ensue, even in circumstances wherein one has claimed for damages pursuant to both of these statutes and the court is making an award of damages pursuant to both of same.

ISSUES I AND II:

THE FATAL ACCIDENTS ACT – WHO MAY CLAIM:

10 Section 3 of the Fatal Accidents Act allows an action for damages to be maintained against a person who tortiously caused the death of another, in the same manner as the person would have been entitled to do, if he had not died. Section 3 states:

“Whensoever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony.”

11 Section 4(1) provides as follows:

4.–(1) “Any action brought in pursuance of the provisions of this Act shall be brought —

(a) by and in the name of the personal representative of the deceased person; or

(b) where the office of the personal representative of the deceased is vacant, or where no action has been instituted by the personal representative within six months of the date

12 Section 2(1) provides:

“near relations” in relation to a deceased person, means the wife, husband, parent, child, brother, sister nephew or niece of the deceased person.”

13 Section 4(4) provides:

“If in any such action the court finds for the plaintiff, then, subject to the provisions of subsection 5, the court may award such damages to each of the near relations of the deceased person as the court considers appropriate to the actual or reasonably expected pecuniary loss caused to him or her by reason of the death of the deceased person and the amount so recovered (after deducting the costs not recovered from the...