CASE REPORT: GODFREY DYER AND DERRICK DYER v GLORIA STONE (1990) 27 JLR 268 (CA) Citation (1990) 27 JLR 268 (CA) Court Court of Appeal Judge Campbell JA Heard November 20, 1989 to November 23, 1989; January 22, 1990 to January 26, 1990; April 2, 1990 to April 4, 1990 Judgment July 9, 1990 Counsel Winston B Frankson QC, Mr John Givans and Dr Bernard Marshall for the appellants Richard Small and Mrs Sandra Minott-Phillips for the respondent [COURT OF APPEAL (Campbell, Forte, and Morgan, JJ.A.) November 20, 21, 22 and 23, 1989; January 22, 23, 24, 25 and 26; April 2, 3, 4, and July 9, 1990] Catchwords Damages - Fatal Accident - Assessment of quantum of damages - Lost years - Determination of basic dependency - Apportionment of annualised expenditure - Whether inflation can be used in estimating income - Whether trial judge erred in determining basic dependency - Whether trial judge wrong in awarding interest on damages - Combined damages awarded under Fatal Accidents Act and Law Reform (Miscellaneous Provisions) Act - Whether beneficiary compensated twice in respect of same death - Fatal Accidents Act - Law Reform (Miscellaneous Provisions) Act. Headnote The respondent brought an action against the appellants arising from a motor vehicle accident in which the respondents husband was killed for damages under the Fatal Accidents Act and the Law Reform (Miscellaneous Provisions) Act. The trial judge awarded damages in the sum of $782, 476 under the Fatal Accidents Act and $384,000 under the Law Reform (Miscellaneous Provisions) Act. The appellants appealed on the grounds, inter alia, that the damages awarded were grossly excessive in that the trial judge erred in the method of ascertaining the pre- and post-trial dependency and in awarding interest on both the pre-trial and post-trial amounts. The trial judge, in determining the amount of pre-trial dependency made use of part only of the unchallenged evidence of expenditure by the deceased and also took into account evidence of inflation between the date of death and the date of trial. There was evidence that the deceaseds annualised expenditure exceeded his net income. The trial judge did not bring this annualised expenditure into alignment with the net income, neither did he allow a deduction for expenditure incurred exclusively for the deceaseds benefit. The appellants also contended that a multiplier of 15 in calculating post-trial dependency was too high and that the trial judge was in error in not deducting the award made under the Law Reform (Miscellaneous Provisions) Act from the respondents award under the Fatal Accidents Act since the respondent was the executrix and sole beneficiary under the deceaseds estate. Held: (i) having properly adopted the annualised expenditure approach the trial judge ought to have proceeded thus: (a) firstly, he should have made use of all the relevant annualised expenditures of which there was evidence; (b) secondly, he should have apportioned the actual annualised expenditures between expenditures exclusively for the deceaseds benefit and expenditures for dependants and then ascertain what is the percentage which the expenditure on dependants is relative to the total actual annualised expenditure; (c) thirdly, he should use this percentage to determine the amount of the net income which is to be regarded as the dependance in the year of death of the deceased. The evidence of inflation, albeit indisputable, is irrelevant and cannot be used in estimating income at any given time, nor in confirming evidence on estimates of income given aliunde, unless there is further evidence that such income is contractually or statutorily linked to the cost of living price index. Accordingly since there was no such evidence in this case, the learned trial judge ought not to have utilised the evidence of inflation for adjusting upwards the dependency which he determined at the time of death in order to ascertain the aggregate dependency for the pre-trial period. Equally he should not have used this evidence as capable of confirming the level of income which the deceased would have attained in the year of trial for the purposes of determining the dependency for the post-trial period. (ii) a multiplier of 15 was unreasonable having regard to previous decisions of the Court and that a multiplier of 11 was more consistent with these decisions. (iii) the trial judge was in error in calculating interest on the award under the Fatal Accidents Act from the date of the service of the writ. Interest should have been awarded from the date of death. He was equally in error in awarding interest on both the pre-trial and (1990) 27 JLR p269 post-trial amounts. In Fatal Accident damages no interest is to be awarded on the post-trial dependency amount. (iv) the trial judge was in error in not deducting the award under the Law Reform (Miscellaneous Provisions) Act from the respondents award under the Fatal Accidents Act since she was the executrix and sole beneficiary of the deceaseds estate. The respondent would benefit to the extent of $533,167 under the Law Reform (Miscellaneous Provisions) Act and cannot therefore benefit under the Fatal Accidents Act except and to the extent that her dependency under this latter Act exceeds this amount. The judgment under the Fatal Accidents Act is accordingly reduced to the sum of $125,553. Appeal against damages allowed. Quantum of damages reduced to $667,720. Cases Considered Cases referred to: (1) Harris v. Empress Motors Ltd. and Cole v. Crown Poultry Packers Ltd. [1983] 3 All E.R. 561; [1983] 1 W.L.R. 65; [1984] 1 W.L.R. 212 (2) Jamaica Public Service Co. Ltd. v. Morgan and Another (1986) 23 J.L.R. 138 (3) Mitchell v. Mulholland [1971] 2 All E.R. 1205; [1971] 2 W.L.R. 1271; [1972] 1 Q.B. 65 (4) Central Soya of Jamaica Ltd. v. Freeman (1985) 22 J.L.R. 152 (5) Samuel Barrett v. Clinton Thomas and V. W. Lee and Sons (SCCA No. 14/80) (October 8, 1981) (unreported) (6) Cecil Wong McDonald v. Winston Williams (SCCA No. 83/81) (October 14, 1982) (unreported) (7) Cookson v. Knowles [1977] 3 W.L.R. 279; [1977] 2 All E.R. 820; [1978] 2 All E.R. 604; [1979] A.C. 556 (8) Jefford v. Gee [1970] 1 All E.R. 1202; [1970] 2 Q.B. 130; [1970] 2 W.L.R. 702 (9) Mallet v. McMonagle [1969] 2 W.L.R. 767; [1969] 2 All E.R. 178; [1970] A.C. 166 (10) Burns v. Edman [1970] 1 All E.R. 886; [1970] 2 Q.B. 541; [1970] 2 W.L.R. 1005; [1970] 1 Lloyds Rep. 137 (11) Davies v. Powell Duffryn Associated Collieries Ltd. [1942] A.C. 601; [1942] 1 All E.R. 657; 111 L.J.K.B. 418; 167 L.T. 74. Case Information Appeal from judgment for the plaintiff/respondent in an action in the Supreme Court for damages in negligence under the Fatal Accidents Act, and the Law Reform (Miscellaneous Provisions) Act. Winston B. Frankson, Q.C., Mr. John Givans and Dr. Bernard Marshall for the appellants. Richard Small and Mrs. Sandra Minott-Phillips for the respondent. Judgment CAMPBELL, J.A.: Between 9 and 10 p.m. in the night of March 25, 1982 a fatal motor vehicle accident occurred along the main road at Crawford in the parish of Saint Elizabeth. Edward Joslyn Stone was killed. As a consequence of his death his wife Gloria Stone as executrix commenced an action against the appellants on January 6, 1983 under the Fatal Accidents Act and the Law Reform (Miscellaneous Provisions) Act. The action was heard on various days in 1985, 1986 and 1987. It culminated in a judgment given on December 18, 1987 for the wife/executrix in damages under the Fatal Accidents Act in the sum of $782,476.00 and under the Law Reform (Miscellaneous Provisions) Act in the sum of $384,000.00. From this judgment the appellant have appealed. Grounds 1, 2 and 3 relate to liability and the refusal of the learned trial judge to admit evidence relative thereto. Grounds 4, 5, 6 and 7 relate to the assessment of the damages and the improper admission of evidence relative thereto. (1990) 27 JLR p270 CAMPBELL JA Grounds 1, 2 and 3 are clearly without merit. The learned trial judge made clear findings of fact amply supported by the evidence that the appellants were solely to blame for the fatal accident in which the life of Mr. Stone was extinguished. No useful purpose is served by setting out the grounds of appeal relative to liability nor by recording the submissions advanced in respect of these grounds and I refrain from so doing. The grounds of appeal relative to the assessment of the damages are as hereunder: 4. On the basis of the principle that damages should be even handed and just and be basically a conventional figure derived from experience and from awards in comparable cases the damages awarded are grossly excessive. 5. The learned trial judge erred in principle in combining the damages awarded under the Fatal Accidents Act and the damages awarded under the Law Reform (Miscellaneous Provisions) Act and further erred in law in compensating the dependants/beneficiaries twice in respect of the death of the deceased. 6. The trial judge having taken into account the effect of inflation in computing the damages under the Fatal Accidents Act was wrong in law, and was further wrong in law in awarding interest on such damages. 7. The trial judge erred in law in permitting the recall of the witness Omar Davies to give further and supplementary evidence after the case for the Defendants was closed. Mr. Frankson submitted that the learned judge did not, from the evidence which he had before him, ascertain with any particularity, or at all, the basic dependency of the widow and children, because he had failed to deduct from the household expenditure, any sum which the deceased would have spent on himself. Secondly, the evidence of expenditures given was unreliable and ought not have been accepted as it revealed that the deceased was living beyond his net income of $40,035.00 at the time of death. He submitted that in such a situation a more reliable approach directed at arriving at a reasonable dependency figure would have been to adopt the conventional method approved in Harris v. Empress Motors Ltd. & Cole v. Crown Poultry Packers Ltd. [1983] 3 All E.R. 561. Thirdly, even if the annualised expenditure approach was proper, the learned trial judge erred in principle in adjusting his figure of dependency at death by using the annual inflation rate given in evidence by Dr. Omar Davies in ascertaining the total dependency for the years between the death of the deceased and the date of trial and in further ascertaining the multiplicand for the post-trial period. To the contrary, Mr. Small submitted that since the evidence both in respect of the deceaseds income and the annualised expenditure were not challenged and were detailed, comprehensive, and inherently reliable, the learned trial judges findings of fact relative thereto and his reliance thereon cannot be faulted, though he had erred in his application of the law to the facts. The respondents notice showed how, as submitted by him, the law should have been applied to the facts. The learned trial judge was right in using the conventional method approved in Harris v. Empress Motors Ltd. (supra) because this was expressly disapproved by this court in Jamaica Public Co. Ltd. v. Elsada Morgan et al S.C.C.A. No. 12/85 delivered May 5, 1986 (unreported). Mr. Small further submitted that the learned trial judge was justified in using the expert evidence given on the progressive rise in the level of inflation between the date of death and the date of trial in determining both the value of the aggregate dependency for the pre-trial period as well as for determining the Net Income at the date of trial from which the dependency for the post-trial period is to be ascertained. He submitted that such expert evidence in relation to the pre-trial period was not only admissible but relevant. He cited in support of his submission Mitchell v. Mulholland [1971] 2 All E.R. 1205 and Central Soya (1990) 27 JLR p271 CAMPBELL JA of Jamaica Ltd v. Freeman S.C.C.A. No. 18/84 delivered 18th March, 1985 (unreported). He submitted that even though the cases were concerned with assessment of damages for personal injuries the rationale for the admission of evidence of inflation as therein approved was equally applicable to fatal accident cases because the rationale was to assist the court in arriving at a decision as to what is the appropriate income and dependency at the date of trial. Though he conceded that it was always desirable to adduce specific evidence of current level of income at the date of trial, he maintained that evidence of the rate of inflation between the date of death and the date of trial is admissible and ought to be utilised in arriving at a decision as to what the level of income is expected to be at the date of trial or as confirmatory evidence of the reliability of evidence already given of estimate of such income. The conventional method of determining the multiplicand for the dependency suggested by Mr. Frankson is based on a statement in Harris v. Empress Motors Ltd. (supra) at page 565 where OConnor, L.J., said: In the course of time the courts have worked out a simple solution to the similar problem of calculating the net dependency under the Fatal Accidents Acts in cases where the dependents are wife and children. In times past the calculation called for a tedious inquiry into how much housekeeping money was paid the wife, who paid out how much for the childrens shoes etc. this has all been swept away and the modern practice is to deduct a percentage from the net income figure to represent what the deceased would have spent exclusively on himself. The percentages have become conventional in the sense that they are used unless there is striking evidence to make the conventional figure inappropriate because there is no departure from the principle that each case must be decided on its own facts. The principle approved in the above statement was adverted to by this court in Jamaica Public Service Co Ltd v. Elsada Morgan (supra) but the court was of the unanimous view that it would be untimely to adopt that principle. Carey, J.A., speaking for a unanimous court said: The experience in the United Kingdom has plainly led the courts to adopt this mathematical formula. But we are not dealing with English conditions in this jurisdiction and I would be slow until we had gained more experience in this field to adopt a formula suited to English conditions but not yet tested in the Jamaican milieu. We have no statistical accumulation of data in this country to show what percentages of salary or wages, young apprentices spend on themselves, or for that matter settled married men with families. Plainly we have not yet arrived at a percentage to which the courts may resort as is suggested in the case cited. No relevant changes in the Jamaican milieu since 1986 have been brought to my attention so to persuade me to move from the policy position which this court adopted in the abovementioned case. Accordingly the annualised expenditure approach adopted by the learned trial judge cannot be faulted in principle though as submitted by Mr. Small, he was in error in his application of the law as found by him. This error Mr. Small submitted was independently of the issue as to the relevance of evidence of inflation in arriving at the pre-trial aggregate dependency. The learned trial judge in determining the amount of the dependency for the year of death made use of part only of the unchallenged evidence of expenditure on rent, household helper, electricity, cooking gas, gardener, grocery, vacation, entertainment and Xmas extras, totalling $28,540.00. This figure is criticised and rightly so by Mr. Small and Mr. Frankson. Mr. Smalls schedule of annualised expenditure based on the evidence, totalled, after a minor correction, $45,958.00. But as he concedes that clothing for the deceased which was not quantified had to be taken into account which I have estimated to be $2,000.00, the annualised expenditure would be $47,765.00. From Mr. Smalls schedule of expenditure the sum of $5,765.00 inclusive of clothing would represent expenditure exclusively on the deceased. The dependency in 1982 would therefore be $42,193.00. (1990) 27 JLR p272 CAMPBELL JA Mr. Franksons submission on this, as earlier stated, was that since the annualised expenditure exceeds the net income of $40,635.00 it was unreliable, and therefore a percentage of the net income should be deducted as representing the amount expended by the deceased exclusively on himself. The balance would then represent the basic dependency in 1982. Alternatively, if this method was not adopted, the annualised expenditure would firstly have to be brought into alignment with the net income and secondly a deduction made for expenditure incurred exclusively for the deceaseds benefit. These were not done by the learned trial judge. Having properly adopted the annualised expenditure approach the learned trial judge ought to have proceeded thus: (a) firstly, he should have made use of all the relevant annualised expenditures of which there was evidence; (b) secondly he should have apportioned the actual annualised expenditures between expenditures exclusively for the deceaseds benefit and expenditures for dependants and then ascertain what is the percentage which the expenditures on dependants is, relative to the total actual annualised expenditure; (c) thirdly, he should use this percentage to determine the amount of the net income of $40,635.00 which is to be regarded as the dependency in the year of death of the deceased. The annualised expenditures are reduced to align them with the net income of $40,635.00 as a life underwriter because on the evidence only this income was used to meet expenditure. The income from the minibus which was being operated, albeit illegally, was being saved. The learned trial judge accepted this statement of Mr. Small. Equally there is no evidence that any savings account at the commercial banks or with the life Underwriters Credit Union was being drawn on to cover current expenditure. Rather the evidence discloses a determined effort of the deceased to save towards the purchase of a house and motor car. In the light of these circumstances the evidence of Mrs. Stone as to many items of expenditure must be viewed as exaggerated albeit not deliberately and designedly so. Since however it is not possible to say which of the items of expenditure are exaggerated and which are not, a just way of resolving the matter is by reducing proportionately the two segments of the annualized expenditure (dependents and deceaseds) from the level of $47,958.00 to $40,635.00 so to bring them in line with the net income of $40,635.00 which alone on the evidence is earmarked to meet expenditures. Mr. Small conceded that one fifth of the expenditure of $13,000.00 on grocery would be attributable to the deceased. This together with specific expenditures on the deceased himself such as Xmas expenditure $2,00.00, doctors bill $720.00, life insurance $245.00 and clothing which I earlier estimated at $2,000.00 totalling $5,765.00 would therefore be deductible from the annualized expenditure of $47,958.00 in arriving at the unadjusted dependency. Mr. Small however submitted that the entertainment expenses of $3,120.00 and car upkeep expenses of $3,000.00 in relation to which the Court invited submissions from counsel ought not to be considered other than as joint expenditures which like rent are to be allocated wholly to dependency because those expenditures underpinned a standard of living to which the dependants were accustomed and of which they are now deprived. Mr. Frankson accepted the allocations made by Mr. Small but contended that in addition to these and the estimated amount for clothing, the entertainment and car upkeep expenses be allocated exclusively to the deceased because they pertain principally to his employment as an insurance underwriter. In my view, Mr. Franksons submission has considerable merit. In the case of the car upkeep, the evidence discloses that the car could hardly be designated as a family car. The car, a Ford Escort was purchased as a new car in 1972. The deceased was then an overseer at W.I.S.C.O. living at Albany in Westmoreland. He thereafter became a salesman for a short time at (1990) 27 JLR p273 CAMPBELL JA Tropical Battery Company in 1974. He left that job in 1974 to become an overseer at Grays Inn where he worked until February 1974 when he left and was employed as a life underwriter at Life of Jamaica, Spanish Town branch. From the evidence, the deceased came to Kingston when he had the job as salesman at Tropical Battery Company. He then moved to Grays Inn when that job was secured but he returned to Kingston and lived at 15 Denham Avenue, Meadowbrook Estates from November 1976. The deceased commuted daily from Kingston to Grays Inn. As life underwriter, 75% of his business was derived from St. Mary, Westmoreland, St. Elizabeth and Manchester with only 25% derived from the corporate area. He was required to give good service to persons in the rural areas whom he had underwritten. On this evidence it is plain that the constant availability of a car was an absolute necessity for the deceased in the efficient performance of his employment and the car would only be used to a very small extent for the benefit of the family. The relatively large sums of $600.00 on bus fares and $1,000 on taxi spent on getting children to and from school by a caring father speak eloquently to the relative unavailability of the car to satisfy the purely domestic needs of the family. The entertainment expense on the evidence is expenditure on friends. Whatever value such gathering of friends at home may have in enriching the quality of life of the dependants, the immediate and direct expenditure is for the benefit of the invited friends who partake of the deceaseds generosity. Such expenditure differ fundamentally from expenditure on dependants in taking them on holidays and to theatre. Further, a weekly expenditure on the average of $60.00 on entertainment, having regard to the relatively large sum and its frequency, seems to me more consistent with satisfying business promotional needs than a purely private social domestic need. For the reasons stated, I would consider that both the car upkeep and the entertainment expenses should be treated as exclusively for the benefit of the deceased. Therefore the sum which ought to be allocated as expenditure incurred for the benefit of the deceased would amount to $11,885.00. This would leave as dependency at the time of death the sum of $36,07.000 out of the annualized expenditure of $47,958.00. But this dependency must be proportionately reduced so that both it and the sum allocated to the deceased, also proportionately reduced, will together not exceed the net income of $40,635.00. The dependency at the time of death when so reduced amounts to $30,565.00 or 75% of net income. The next exercise is to arrive at an average figure of dependency for each of the pre-trial years so that the aggregate dependency for that period may be ascertained. The learned trial judge determined the pre-trial years to be 51/2 and this has not been disputed. Mr. Frankson submits that the only net income which is in general relevant in determining the value of the dependency whether pre-trial or post-trial is the net income at the time of death. The prospect of increased income at the time of trial however glowing is irrelevant unless it can be quantified and substantiated by satisfactory and credible evidence. In this regard the evidence of inflation in society is irrelevant and the evidence of Dr. Omar Davies on the progressive rise in the level of inflation between the date of death and the date of trial was irrelevant and ought not to have been used by the learned trial judge in determining the aggregate dependency for the pre-trial period or for determining the multiplicand for the post-trial period. The learned trial judge did make use of this evidence. He said: I have considered the evidence of Dr. Davies on the movement of money over the years and the indications of the Consumer Price Index. I find that based on the evidence, the deceased would have developed his potential and been in the $150,000.00 p.a. income bracket had he survived to this date. This figure is within that given by Dr. Davies based on the earnings of the deceased at the time of his death viz. $66,000.00. In arriving at the amount of the dependency for the first year I use the unchallenged figures given by the plaintiff. (1990) 27 JLR p274 CAMPBELL JA Rent $2,700.00 Helper 2,400.0 Electricity 2,040.00 Cooking gas 240.00 Gardener 780.00 Grocery 13,000.00 Vacation 2,000.00 Entertainment 3,120.00 Xmas 1,000.00 $28,540.00 (sic)
Posted on: Tue, 30 Sep 2014 03:11:55 +0000