Vinston Miller v Caribbean Producers Jamaica Ltd and Another

• Jurisdiction: Jamaica
• Judge: Campbell J
• Judgment Date: 18 December 2015
• Neutral Citation: [2015] JMSC Civ 250
• Court: Supreme Court (Jamaica)
• Docket Number: THE CIVIL DIVISION CLAIM NO. 2012 HCV 00345
• Date: 18 December 2015

[2015] JMSC Civ 250

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Campbell J;

THE CIVIL DIVISION CLAIM NO. 2012 HCV 00345

Between

Vinston Miller (Administrator of the Estate of Weston Miller, the deceased)

Claimant

and

Caribbean Producers Jamaica Limited

1 ^st Defendant

and

Kirk Hillary

2 ^nd Defendant

Mr. Ewan Thompson , Attorney-at-Law for the Claimant

Mrs. Tashia H. Madourie and Mrs. Arlene A. Williams instructed by Nunes, Scholefield, DeLeon & Co. for the 1 ^st Defendant.

The 2 ^nd Defendant is unrepresented.

Negligence — Motor Vehicle Collision — Manslaughter Charge — Dangerous Driving — Fatal Accident — Damages — Loss of Earnings — Special Damages — Funeral Expenses — Fatal Accidents Act — Law Reform (Miscellaneous Provisions) Act.

Background

1 Weston Miller, a building contractor and carpenter, was twenty-five (25) years of age when he died in a motor vehicle collision, on the 1 ^st February 2007. The 1 ^st Defendant's International motor truck was being driven, by the 2 ^nd Defendant when it collided into the Suzuki motor car owned and driven by the Claimant.

2 The deceased died intestate, unmarried and without children. He is survived by his father, Mr. Vinston Miller, sisters, niece and nephews. On the 2 ^nd October 2009, Letters of Administration were given to Mr. Vinston Miller.

3 By way of a Claim Form filed on the 26 ^th January, 2010, an action was commenced by the Administrator to recover damages under the Fatal Accidents Act, 1845 for the benefit of the dependents of the deceased as well as under the Law Reform (Miscellaneous Provisions) Act, 1955 for the benefit of the estate of the deceased. The negligent operation of the 1 ^st Defendant's motor truck was alleged and particularized. It was alleged that the 2 ^nd Defendant was charged with manslaughter, as a result of the death of the deceased. That on or about the 26 ^th June 2008, the 2 ^nd Defendant pleaded guilty in the Circuit Court, for causing the death of the deceased by Dangerous Driving.

4 On the 19 ^th April 2010, a Defence was filed on behalf of the 1 ^st Defendant, denying the allegations of negligence pleaded in the Particulars of Claim. The Claimant was put to strict proof to prove the allegations that the 2 ^nd Defendant had pleaded guilty to the offence of Dangerous Driving, in relation to the death of the deceased.

5 In the pre-trial memorandum, dated 3 ^rd April 2012, counsel for the 1 ^st Defendant stated, that the 1 ^st Defendant is prepared to admit that its servant and/or agent, the 2 ^nd Defendant, was negligent in his operation of the motor vehicle thereby causing the collision which resulted in the death of the deceased.

6 The issues before the court are the quantum of damages that the estate of Weston Miller is entitled to recover under the Fatal Accidents Act and/or the Law Reform ( Miscellaneous Provisions) Act, and also the amount of special damages that the estate is likely to recover under plus costs.

Law Reform (Miscellaneous Provisions) Act, 1955

7 At common law, the death of either the tortfeasor or his victim would normally extinguish the possibility of an action. The Law Reform ( Miscellaneous Provisions) Act , 1955 , changed the common law by providing that; on the death of any person, all causes of action (with few exceptions) subsisting or vested in him should survive for the benefit of his estate.

8 Section 2(1) of the Law Reform ( Miscellaneous Provision) Act provides:

“ 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 ;”

Further, Section 2(2)(c) of the Law Reform ( Miscellaneous Provisions) Act provides;

“ where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included .”

As such under the Law Reform ( Miscellaneous Provisions) Act award is usually made for loss of expectation of life, funeral expenses, other special damages and the “lost of years” for the benefit of the deceased estate.

9 The approach of the Court in the assessment of damages under the Law Reform ( Miscellaneous Provisions) Act is a practical approach, there is no room for sentimental agonizing, it's a hard matter of “ dollars and cents subject to the element of reasonable future probabilities ” (Per Harrison J (Ag), Doris Fuller (Ad. Estate Agana Barrett, dec'd) v Attorney General CL 1993/F152 delivered on 5 ^th July 1993.

Lost years

10 In Administrator General of Jamaica (On behalf of the Near Relations and Dependents and Dependents and as Administrator Ad Litem of the Estate of Clive Brown, Deceased) v Jamaica Pre-Mix Limited et al) [2013] JMSC Civ 149, Anderson J, noted that lost years, is a calculation of the loss to the estate by virtue of the loss of earnings of the deceased during the lost years, being years between retirement and death. It is the loss arising from the death of the deceased and is calculated as at the time of death of the deceased.

Multiplier

11 The deceased died at age twenty (26), he was born on the 24 ^th May 1980. In the case of Jamaica Public Service Co. Ltd. v Elsada Morgan (1986) 23 J.L.R. 138, the Claimant was age twenty-five (25) years at the time of death. The Court of Appeal approved a multiplier of fourteen (14). In Alicia Dixon (Administrix of the Estate Christopher Dixon) v Harris and the Attorney General , delivered on February 25 ^th , 1993, Harrison J.(Ag), approved a multiplier of fourteen (14) which was used in respect of the deceased, an Air Pilot, who was twenty-seven (27) years at the time of death. In the matter of Doris Fuller (Ad. Estate Agana Barrett, dec'd) v Attorney General C.L.1993/F152, delivered 5 ^th July 1995, Harrison J. (Ag), used a high multiplier of sixteen (16), in respect of the twenty-one (21) year old deceased. I am of the view that a multiplier of fourteen (14) would be appropriate in this case.

Multiplicand

12 At the time of his death the deceased was driving his motor vehicle home from a construction project he was involved in, for one Mr. Smith. His father's witness statement, which was admitted as his evidence-in-chief said he was working as a Supervisor of building sites, also as a building contractor who installed roofs, does general carpentry, carry-out general repairs to houses and buildings and was also engaged in general construction. He had started learning the trade from age fifteen (15), serving a period of apprenticeship with a building contractor.

13 His father testified that he earned a weekly salary of $25,000.00 — $30,000.00. That a few months before he died; the deceased earned $180,000.00 for a particular job. He lived in his own home which consisted of two (2) bedrooms, hall, bathroom, kitchen and verandah. Counsel for the 1 ^st Defendant, complained that there was a lack of documentary support, or evidence of statutory deductions from the deceased's earnings. A not inconsequential part of the Jamaican business is conducted outside the formal economy. Similar complaints were raised by Crown Counsel in the Agana Barrett case , (See; page 6 of the judgment) which failed to move the court.

Deceased's annual income

15 Mr. Courtney Lewis, builder and contractor, with twenty-two (22) years of experience, with whom the deceased had worked on occasions, attested to the period of “apprenticeship” served by the deceased and subsequent work experience, and of the reputation the deceased had gained as a “skilled tradesman”. He opined that he would easily earn on average between $120,000.00 to $130,000.00 monthly. The evidence of Mr. Lewis is that the basic salary for a site supervisor in 2007 was $4,000.00 per day or $20,000.00 per week, which would constitute his average net earnings at death, annualized would be $960,000.00. It was clear that some of his jobs were not of the same duration, and there would be periods when he did not work. I find Mr. Lewis to be a truthful witness; his credit has not been impugned. I accept his evidence despite the absence of documentary support. I would therefore discount the annual earnings of $960,000.00 by 10 %, for periods when he would not work, for a total of $864,000.00. Statutory deductions inclusive of income tax, NHT, NIS, would amount to 29%; that is $250,560.00. The average annual net earnings at death is $613,440.00.

16 According to Mr. Lewis, the applicable daily rate for a site supervisor at the time of the trial had moved to $5,000 per day. As a demonstration of the movement of labour cost in the building industry, the evidence, that the labour cost to install a roof for a three (3) bedroom house had moved from $180,000.00, a few months before the deceased death to between $250,000.00 — $260,000.00 at the time of trial. The figure of $5,000.00 per day, I accept as what the deceased would have been earning at the time of trial. The trial earnings should be accepted as $25,000.00 weekly, the annualized would be $1,200,000.00 per annum, discounted by 10%, $1,080,000.00, and deduct 29%, $313,200.00. The trial earnings annualized at $766,800.00.

17 In...