Vera Dallas v L.P Martin Company Ltd

 
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[2018] JMSC Civ 78

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Stephane Jackson – Haisley, J

CLAIM NO. 2015 HCV 03814

Between
Vera Dallas

(by her attorney Elmeda Robinson)

Claimant
and
L.P. Martin Company Limited

(trading as L.P. Martin Funeral Home)

Defendant

Lord Anthony Gifford Q.C. and Ms. Marissa Wright for the Claimant

Mr. Robert Moore for the Defendant

Damages — Assessment — Default judgment — Deceit — Negligence — Causation — Damages for emotional distress — Mis-treatment of body — Inability to ascertain cause of death — Lack of closure

IN OPEN COURT
BACKGROUND
1

In the normal course of things children are expected to outlive their parents. When the order changes and a child pre-deceases a parent this can result in emotional distress. This is the unenviable position in which the Claimant Vera Dallas has found herself. Added to this is the uncertainty surrounding the cause of death and the way in which the Defendant treated the body. The task that confronts this Court is how to put a price on this emotional distress, how to quantify this in a way that sufficiently reflects the nature of the suffering she endured. The task is compounded as the Court is faced with the challenge of quantifying damages for the depressive disorder occasioned solely by the acts attributable to the Defendant.

2

The question of the Defendant's liability has been determined by a Default Judgment which was entered on February 12, 2016 with damages to be assessed. This followed upon the filing of a Claim Form and Particulars of Claim on July 31, 2015 and the subsequent filing of an Amended Particulars of Claim on July 7, 2016 by the Claimant Vera Dallas, who was then represented by her attorney Elmeda Robinson, against the Defendant L.P. Martin Company Limited (trading as L.P. Martin Funeral Home).

THE CLAIMANT'S CASE
3

The deceased, 54-year-old Noel Ballantyne collapsed suddenly on November 14, 2014 at his home in Flint River in the parish of St. Mary. He was taken to the Port Maria Hospital where he was pronounced dead. The Claimant, his mother, although not then present within the jurisdiction, acted as next of kin and undertook responsibilities for all the cost arising from his death. She delegated her responsibilities to her son's spouse Ms. Lena Prendergast and other relatives who were in Jamaica. She engaged the services of her cousin Roan Ferguson, the director of Ferguson's Funeral Services located in the parish of St. Mary, to take charge of the funeral arrangements.

4

The Defendant L.P. Martin Company Limited is the proprietor of a funeral home, located in the parish of St. Mary, providing services to families of deceased persons. While family members of the deceased were at the hospital awaiting the agents of Ferguson's Funeral Services to come for the body, two agents of the Defendant's Funeral Home arrived at the hospital and indicated to them that it was Mr. Ferguson who had sent them. This was a false statement and the family members of the deceased acted on this false statement and allowed the agents of the Defendant to remove the body. Mr. Ferguson arrived afterwards and on realizing that the body was already removed immediately went to the Police Station accompanied by family members of the deceased and reported what had transpired. That same night they went to the Defendant's place of business and requested that the body be handed over to Mr. Ferguson. The Defendant refused to comply with their request.

5

The following day, November 15, 2014 the family members returned to the Defendant's funeral home and again requested the body however they were told that they had to bring the death certificate as well as pay the sum of $22,717.50 before the body would be handed over. They returned on November 17, 2014 and again requested the body but the Defendant's agents refused to hand it over. On November 18, 2014 the family members returned, this time with a burial order and were presented with an invoice in the sum of $108,345.00 which included a charge for embalming. Under protest they paid the sum but the body was still not handed over as the agents of the Defendants claimed that there was no one there to release the body and advised them to return the following day at noon. On November 19, 2014 the family members returned to the funeral home and the body was handed over to Mr. Ferguson. Observations were made that an embalmment was carried out on the body that said morning or at the earliest the previous evening.

6

The Claimant complains that the Defendant caused the body to be embalmed without any authorization or in consultation with her or any other family member. By reason of the embalmment, the Claimant was unable to have a post mortem examination carried out as she had intended to do in order to ascertain the cause of her son's sudden death. Further, that the embalmment made it impossible for a pathologist to analyse blood and other elements of the body and make findings as to the cause of death. Although at the time of these events, the Claimant was overseas, she was advised of all that had transpired by Ms. Prendergast. Further, she was sent photographs of her son's body in a state of partial embalmment.

7

The Claimant pleaded that the Defendant's servants and/or agents made a false representation, knowing that it was false or were reckless as to its falsity. It was intended that the family members would act on this representation and they so did and allowed them to remove the body. Further, that another false representation was made when the family members were presented with an invoice for services to include an embalmment charge when at that time no embalmment had then commenced causing the family members to pay this invoice.

8

The Claimant avers that the Defendant is therefore liable in the tort of deceit or in the alternative, negligence. The Claimant further avers that the actions of the Defendant caused her to suffer great distress and psychological damage as well as financial loss.

9

The Particulars of Injury pleaded are that the Claimant suffered acute, emotional distress at the way the body was handled and developed symptoms of ruminating negative thoughts. This caused an emotional scar which developed into symptoms of sadness, decreased sleep, decreased appetite and anhedonia. On January 5, 2015 after visiting her son's grave she suffered a stroke causing her to experience severe weakness which further weakened her emotional resilience. She continues to suffer from Bereavement and Major Depressive Disorder, the stressors for which were the death of her son, the conflict with the Defendant, together with the inability to determine a conclusive cause of death. She requires ongoing psychological support.

10

In respect of Special Damages, she claims $108,345.00 which represents the payment made to the Defendant and $120,000.00 which represents fees due to Ferguson Funeral Services for attendance at the Defendant's premises on five occasions.

11

She also claims Aggravated Damages having regard to all the circumstances and Exemplary Damages having regard to the Defendant's desire to make a financial profit through the charges made for removing, storing and embalming the body of the deceased and the fact that the Defendant calculated that the profits which he could make would exceed any damages which he might be liable to pay.

EVIDENCE AT TRIAL
12

The Claimant gave evidence by video link. Her witness statement was allowed to stand as her examination-in-chief. The contents were largely consistent with her pleadings. During cross-examination when it was suggested that the reason she was not happy after the death of her son was because she missed him, she responded that the reason she wasn't happy was because they took away his body and she couldn't get it back. Further, that she lives alone and has no one to talk to. She sought to explain the reason for her depression in the following manner:

“Not because I miss him, because I know he has to die and I could get over the wounds I have now. I will get over his death because I know he has to die but I can't get over not knowing what killed my son. He was a good son, he never complained”.

13

She was questioned about how the body was eventually prepared for the funeral and she said it was Mr. Roan Ferguson who did this and that he did a good job. These were her words:

“Yes, I am pleased about it because all my friends could view the body and say how him look good.”

14

She was asked about what transpired when she visited Dr. Reynolds. It was suggested that she did not tell Dr. Reynolds that she had high blood pressure and she said she could not recall, nor could she recall telling her that she was suffering from other pre-existing medical conditions. She indicated that she is currently taking pills for depression and blood pressure and that she was taking them before her son's death. She went on to express how she felt in this manner.

“I was so upset and so frustrated at how they treated my son. I live alone, I have no one to take care of me. In that state of mind I couldn't go anywhere by myself so I just stay in the house and cry.”

15

She was asked if she was upset based on what she was told by Ms. Prendergast and she said yes, she was upset when she heard how they treated her son's body. It was again suggested to her that it is because she missed her son that she is depressed and she replied that she misses her son but she is not depressed over it because she buried her mother and her father and didn't get depressed over it. It was suggested that she is upset because she has lost her best friend and best child and she replied that she was not upset about it because he died and everyone has to die but she got depressed over his body and the way they treated him.

16

It was also suggested to her that the reason she is upset is because her family member Mr. Roan...

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