[1] Cyril Mathurin [2] Jason Mathurin Appellants v Anthony Augustin Qua Administrator of the Estate of Yasmin Natasha Augustin (Deceased) Respondent [ECSC]

• Jurisdiction: St Lucia
• Judge: BARROW, J.A.,Justice of Appeal,Denys Barrow, SC,Ola Mae Edwards
• Judgment Date: 02 June 2008
• Judgment citation (vLex): [2008] ECSC J0602-4
• Court: Court of Appeal (Saint Lucia)
• Docket Number: HCVAP 2007/041
• Date: 02 June 2008

[2008] ECSC J0602-4

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Denys Barrow, SC Justice of Appeal

The Hon. Mr. Hugh Rawlins Justice of Appeal

The Hon. Mde. Ola Mae Edwards Justice of Appeal (Ag.)

HCVAP 2007/041

Between:

[1] Cyril Mathurin

[2] Jason Mathurin

Appellants

and

Anthony Augustin

Qua Administrator of the Estate of Yasmin Natasha Augustin (deceased)

Respondent

Appearances:

Mr. Shawn Innocent for the Appellants

Mr. Hilford Deterville, QC with Ms. Samantha Charles for the Respondent

Civil Appeal — Death — Negligence — Assessment of Damages — the lost years — Article 609 Civil Code of Saint Lucia — s.1 (2) (c) Law Reform (Miscellaneous Provisions) Act 1934 — Right to recover damages for the lost years abolished — Administration of Justice Act 1982 — Conflict of the English and Saint Lucian laws — Whether damages for lost years are recoverable —

The sole issue on this appeal was whether the estate of the deceased was entitled to recover damages for the deceased's loss of future earnings during the years of life lost to her because of the defendants' negligence. Under the Law Reform (Miscellaneous) Provisions Act 1934 of England and Article 609 of the Civil Code of Saint Lucia damages for the lost of years were recoverable. The Administration of Justice Act 1982 section 4 changed English law by abolishing the right to recover damages for the lost of years. Counsel for the appellant contended that this change in English law had effect in Saint Lucia by virtue of article 917A (1) of the Code, which extended English law to St. Lucia. Counsel for the respondent contended that article 917A (1) of the Code is qualified by article 917A (3) which provides that where a conflict exits between the law of England and the express provisions of the Code the provisions shall prevail.

Held, dismissing the appeal with costs:

• (1) Notwithstanding the change in English law damages can be recovered for the lost years in a case of death based on the provisions of Article 609 of the Civil Code, which states that on the death of any person after the commencement of this Chapter, all causes of action subsisting or vested in him shall survive against, or as the case may be, for the benefit of, his succession.

• (2) That the amendment to the English law of damages for the lost years did not extend to Saint Lucia because it conflicts with the express provision of the Code.

• (3) The appellant must pay to the respondent prescribed costs to be quantified based on the quantum of damages for the lost years that are awarded or agreed. Such costs were to be assessed, if not agreed.

  Veronique Ismael v Justin Albert St. Lucia Claim No. SLUHCV 0717 of 2002 (judgment delivered 8 December 2006) overruled.

  Gammell v Wilson [1981] 1 All ER 578 distinguished.

BARROW, J.A.

1 The sole issue on this appeal is whether the estate of the deceased is entitled to recover damages for the deceased's loss of future earnings during the years of life lost to her because of the defendants' negligence. Damages awarded under this head are referred to as damages for 'the lost years'. Master Mathurin held that the estate was entitled to such damages. The defendants have appealed that decision.

2 Liability was conceded by the defendants (appellants) for causing the death of 25 year old Yasmin Natasha Augustin, who died instantly in a motor vehicle accident on 30^th May 2003. The dispute between the parties arose on the assessment of damages. Subsequent to the filing of the notice of appeal, damages payable to the dependants of the deceased were agreed. Damages for the lost years, payable to

"609. (1) On the death of any person after the commencement of this Chapter, all causes of action subsisting or vested in him shall survive against, or, as the case may be, for the benefit of, his succession:

3 There is no disagreement between counsel as to the interpretation of that provision because the almost identical provision in English law was closely considered by the House of Lords inGammell v Wilson [1981] 1 All ER 578.1 In that case the defendants contended the estate could not recover damages for the deceased's loss of earnings during the lost years because the cause of action for such earnings was a 'gain to the estate' while the loss of earnings was a 'loss to the estate' and therefore, in accordance with the requirements of section 1 (2) (c) of the Law Reform (Miscellaneous Provisions) Act 1934 damages were to be calculated without reference to any loss or gain to the estate consequent on the deceased's death. The opening provisions of section 1 of the 1934 Act read:

"(1) 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.…"

As noted, article 609 of the Code is in almost identical language.

4 The House decided that on a true construction of the 1934 Act the restriction on an estate recovering or being deprived of a loss or gain applied only to a loss or gain directly consequent on the death and not to a loss or gain resulting from a right to recover damages. That right vested in the deceased immediately before his death and then passed to his estate, regardless of whether or not the beneficiaries of the estate were also dependants. Section 1 of the 1934 Act preserved that right and made it survive the deceased. Therefore, damages for the lost year were held to be recoverable by the estate.

5 It will be appreciated that this decision in 1981 was not a judicial determination that damages were recoverable at common law after death but an interpretation of the 1934 Act. That interpretation, by parity of reasoning, was also the true interpretation of article 609 of the Code. Therefore, under the respective legislation of both England and St Lucia damages for the lost years were recoverable.

6 Their Lordships inGammell v Wilson had been scathing in their view of the state of the law of damages. Lord Diplock, for instance, stated that "the law of damages for death has, in my view, reached a state for which I can see no social, moral or logical justification."2 He joined in the call by other members of the House for legislation to "bring…sense and justice to the law relating to damages for death recoverable by the estate of the deceased."3

7 Legislation in England to bring about the recommended change came in the form of section 4 of theAdministration of Justice Act 1982. This section introduced a new section 1...