Shields-Brodber (Kathryn) v Ralston Smith
| Jurisdiction | Jamaica |
| Judge | RATTRAY, P.: , HARRISON. J. A. , Downer, J.A: (Dissenting) , RATTRAY, P: (RETIRED) |
| Judgment Date | 31 July 2000 |
| Judgment citation (vLex) | [2000] 7 JJC 3106 |
| Court | Court of Appeal (Jamaica) |
| Date | 31 July 2000 |
DAMAGES - Motor vehicle accident - Loss of earnings/Loss of earning capacity - Whether award of damages too low
LEGAL PROFESSION - Professional conduct - Witness is husband of counsel for appellant - Whether duty of counsel to disclose relationship between witness and herself - Application for order of new trial
I find myself greatly assisted by the submissions of Counsel on what is a novel point with no direct authorities being provided.
Kathryn Shields-Brodber, the plaintiff/appellant in this appeal, suffered injuries in a motor vehicle accident in June 1989 and was awarded damages in an action brought by her in the Supreme Court and tried before Cooke, J.
In relation to the quantum of damages, the plaintiff /appellant challenged the judge's assessment on appeal on the ground that it was too low.
Mrs. Shields-Brodber was at the material time of the accident a lecturer in the Department of Linguistics of the University of the West Indies and she maintained that consequent on the injuries which she suffered in the accident her prospects for promotion at the University wore substantially adversely affected.
In this regard, she was supported by the evidence of Dr. Hubert Devonish, the Head of her Department at the University of the West Indies. He evidenced a reduction in her capacity for publication and described it as slow in comparison to her former output. This would affect her prospects of promotion to senior lecturer. His cross-examination was minimal.
How did the trial judge deal with the evidence of Dr. Devonish? He regarded the case as not one involving mental impairment and stated:
"It is my view that the highest that the plaintiff can say is that because of the injuries I was prevented from putting myself within the class of persons eligible for promotion. Having come to this view I think the proper approach is to regard the pain and suffering which precluded her from putting herself within that class as part of the loss of amenities and pain and suffering."
In practical terms, therefore, the evidence of Dr. Devonish did not cause the trial judge to award damages consequent on her disadvantage in relation to promotion, which indeed was the purpose for which he had been called. I make this review in order to put into context the complaint now being considered.
Dr. Devonish was in fact the husband of Miss Carol Davis, Counsel for the appellant. As a professional person she maintained her maiden description and carried on her practice under that name. The fact of her relationship with Dr. Devonish, the witness, was not disclosed and Counsel for the respondent was not aware of it.
The hearing of the appeal was part-heard and adjourned sine die. It then came before the court for continuation on the 3rd March, 1999.
In an affidavit sworn to on the 2nd March, 1999, and filed in the court, Mr. David Johnson, Counsel for the respondent, deponed that in late April 1999 he received information, of which he was not previously aware, that Dr. Devonish was, at the time he gave evidence, and is, in fact the husband of Counsel for the appellant, Miss Davis. This information he confirmed on March 1, 1999, by making direct inquiry of Miss Davis.
Mr. Johnson contends in his affidavit that the evidence of Dr. Devonish was proffered to establish the following:
(a) that the plaintiff/appellant was an excellent teacher active in university service;
(b) the plaintiff /appellant was above average in the areas of research and publications and had a good memory;
(c) bearing in mind the potential and achievement demonstrated by the plaintiff/appellant up to 1989, all things being equal it was expected that the plaintiff/appellant's application in 1993 for a senior lecturer's post would have had a very good chance of succeeding. He evaluated this chance at 80%.
Mr. Johnson maintained that the failure of the attorney-at-law, Miss Davis, to disclose to the court the fact that her witness, Dr. Devonish, was her husband had the following effect:
" (a) it precluded the Honourable Court from properly assessing whether the evidence of Dr. Devonish was unbiased ('unvarnished') and consequently to either accept or reject the same having regard to the existing circumstances;
(b) it prevented me from testing Dr. Devonish's credit as an unbiased witness given the benefit that his said evidence may have afforded to the plaintiff/appellant and by extension to his wife."
Mr. Johnson, therefore, maintained that there was a duty on Miss Davis to disclose to the court the relationship between the witness. Dr. Devonish, and herself, that the non-disclosure was material and that Counsel's failure to disclose severely prejudiced the defendant's case and goes to the root of this appeal.
The court adjourned the proceedings and on resumption Lord Anthony Gifford, Q.C., requested and obtained the permission of the court to make submissions as amicus curiae and the contrary propositions were contended for by Mr. Charles Piper who now appeared, for the purposes of this argument, with Mr. Johnson.
The question then which has to be determined at this stage is whether there was a duty on Counsel (Miss Davis) to reveal a material relationship with the witness (Dr. Devonish) called by her to support the claim for damages.
We have not been provided with any authority to support the proposition that Counsel in a civil action has a duty to disclose to the court a special relationship such as arises in this case between himself/herself and the witness called to support the client's case. The fact, however, that no authority has been unearthed to this effect does not remove from the court the duty to examine the issues raised on the principles governing Counsel's conduct in a hearing by the court.
The first question would be whether Counsel or the client would have received an unfair advantage by the non-disclosure.
I understand Mr. Johnson's position to be that had he been aware of the relationship he may have probed the witness more assiduously in his cross-examination.
If I can interpret this to mean that he may have suggested that Dr. Devonish had skewed his evidence to favour the plaintiff because his wife was the plaintiff's Counsel, without any basis on which to make such an obnoxious suggestion, this would have been in breach of the duty of Counsel not to make statements or ask questions merely scandalous and intending only to insult or annoy the witness. Counsel must have some satisfactory basis before he or she can launch such an attack on the witness' credibility. It is not suggested that Mr. Johnson had any such basis. I find it difficult, therefore, to unearth a legitimate purpose which would permit Counsel to probe in this manner.
I cannot find also in the canons of professional ethics any provision creating a breach because of a non-disclosure by Counsel of her relationship with the witness. Indeed, if Counsel had disclosed to the court her special relationship with the witness it may well have been interpreted as an attempt to have the trial judge favour the witness by virtue of that personal relationship with Counsel.
Mr. Piper has frankly stated that there is no question of professional misconduct being canvassed and has identified the relevant questions to be: (1) whether or not there has been non-disclosure of a material fact in the circumstances of the case; (2) the nature of the non-disclosure through its effect.
He raises the possibility of bias because of the relationship, which would remain secret because of the non-disclosure. We will need, therefore, to apply the principle being canvassed in relation to the fasts of the case. This non-user of her husband's name by Miss Davis has not come into being for the purposes of the case. In our modern world, it is not particularly unusual amongst husbands and wives who practice or belong to differing professions. The materiality of the non-disclosure to the facts of this case eludes me.
Mr. Piper has asked us to examine the duties of Counsel in the conduct of a trial. He has made reference to the dicta of Lord Esher, M.R. in Re: G. Mayer Cooke (Times Law Report for week ending 20/11/1888 Vol. 5 page 407), in dealing with the duty of a solicitor that:
"He had however a duty to the court, and it was part of his duty that he should not keep back from the court any information which ought to be before it."
I doubt very much whether in 1888 Lord Esher would have been contemplating a position in which a female practising Counsel would have as witness in a case a husband who was also a professional person giving professional evidence, and there being no disclosure that Counsel was the husband of the witness because they practised under different surnames.
The inhibiting social shackles on the ladies of that age did not accommodate the emergence of such a phenomenon in the 19th century either in England or in Jamaica.
Reliance has been placed on Meek v. Fleming [1961] 3 All E.R. 148 where the defendant who gave evidence had been a Chief Inspector of Police but was at the time of the trial a Station Sergeant, having been reduced in rank by virtue of a disciplinary breach. This reduction in rank was concealed on the advice of his lawyers. At his trial he attended in civilian clothes and was referred to as Chief Inspector despite his demotion and paraded as such with the full...
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