Bertha Compton (nee Blaize) (Qua Administratrix of the Estate of the Late Macrina Blaize) v Dr. Christiana Nathaniel and Others

• Jurisdiction: St Lucia
• Judge: GEORGES, J. [AG.]
• Judgment Date: 20 August 2010
• Judgment citation (vLex): [2010] ECSC J0820-2
• Date: 20 August 2010
• Court: High Court (Saint Lucia)
• Docket Number: SLUHCV 2000/0031

[2010] ECSC J0820-2

IN THE HIGH COURT OF JUSTICE

SLUHCV 2000/0031

Between:

Bertha Compton (nee Blaize)

(Qua Administratrix of the Estate of the Late Macrina Blaize)

Claimant

and

[1] Dr. Christiana Nathaniel

[2] Dr. Gerard Saltibus

[3] The Honourable Attorney General

[4] The Hospital Administrator, Victoria Hospital

Defendants

Appearances:

Mr. Hilford D. A. Deterville, QC with Ms. Nandi A. O. Deterville for the claimant

Mrs. Brender Portland-Reynolds, Senior Crown Counsel for the defendants

GEORGES, J. [AG.]

1 I have read with consummate interest the written submissions and legal authorities submitted by counsel for each side pursuant to an order of the court dated 9^th November 2009, in which the parties consented to judgment being entered for the claimant (on the issue of liability) with damages to be assessed.

2 The action arose from the death of Macrina Blaize ("the Deceased") a 34 year old auto sales clerk and mother of 3 children who died at Victoria Hospital on 5^th March 1998 due to the alleged negligence of the 1^st and 2^nd defendants in the management of the condition of the Deceased. The suit was brought against the 3^rd defendant by virtue of section 13(2) of the Crown Proceedings Act Chapter 13 of the Revised Laws of Saint Lucia 1957 and against the 4^th defendant by virtue of he being responsible for the day to day administration management and control of the medical nursing and other staff of the Victoria Hospital.

4 The action is brought for the benefit of the estate and for the benefit of the children of the Deceased under Articles 609 and 988(3) of theCivil Code of Saint Lucia Chapter 242 of the Revised Laws of Saint Lucia 1957.

5 Within days of counsel filing their respective submissions and legal authorities on the question of damages counsel for the claimant wrote to the Registrar and copied the letter to the Attorney General's Chambers and myself saying that since the filing of the order which the Court made in this matter on 9^th November 2009 the attention of counsel had been brought to the decision of Privy Council Appeal No. 1 of 2007Felicia Andrina George Administratrix of the Estate of Hughes Williams Deceased v Eagle Air Services Limited where Her Majesty's Board in an opinion delivered 12^th May 2009 allowed Ms. George's appeal in which she sought damages on behalf of the estate of her spouse (Mr. Williams) and on behalf of herself and her five children by Mr. Williams as well as a claim for loss of dependency. The Board directed that judgment should be entered in her favour against the respondent for damages to be assessed and undertook at the insistence of Ms. George and the assistance of amici curiae the assessment of damages itself rather than remit it to the High Court in Saint Lucia.

6 In the light of that decision counsel for the claimant requested that each side be allowed to either make (written) supplemental submissions or that counsel for the parties be allowed to address the court against the background of that decision. No consensus having been reached I have proceeded on the basis of the written submissions and legal authorities in hand as well as thePrivy Council Appeal decision No. 1 of 2007 in so far as I consider it appropriate.

7 For that purpose I shall adopt the sequence of heads of claim followed by their Lordships' Board.

8 On behalf of the estate of Macrina Blaize as inGeorge v Eagle Air Services Ltd and Others four heads of claim are advanced:

• (1) loss of expectation of life;

• (2) funeral expenses;

• (3) lost years and

• (4) Loss of dependency.

Loss of Expectation of Life

9 Article 609 of theCivil Code permits the making of a conventional award for loss of expectation of life. As Lord Mance declared in delivering the opinion of Her Majesty's Board in George v Eagle Air Services Ltd (paragraph 5 supra) the abolition in England of such awards by the Administration of Justice Act 1982 section 1(20)(A) has been held by the Eastern Caribbean Court of Appeal to have no effect in Saint Lucia; Mathurin v Augustin (HCV 2007/041, 2^nd June 2008). In order to accommodate inflation the standard sum under that head has progressively been uprated and indeed in Jallim v Ghirawoo (2003/0483, 17^th February 2005) the Court of Appeal indicated obiter in relation to an accident occurring in October 2002 that in its view in 2005 the time had come to uprate the conventional award to $3,500.00. Bearing in mind that the George v Eagle Air Services Ltd case related to an accident in 1990 the Board considered $2,500.00 appropriate. In light of the prevailing trend as well as the decision of Shanks J in Plummer et al v Conway Bay Ltd Suit No. 1041 of 2000 increasing an award to $3,000.00 which was subsequently upheld by the Court of Appeal and affirmed by the Privy Counsel (No. 81 of 2006) I would myself award a like amount under that head which in fact accords with that suggested by counsel for each side.

Funeral Expenses

10 The claim under that head is somewhat perplexing. This is a head of special damage which must be specifically pleaded and strictly proved. In his particulars of special damages in the Claimant's Writ of Summons dated 21^st February 2000 the claimant's solicitor claimed funeral expenses of $8,000.00. That figure has never been substantiated. At paragraph 8 of his written submissions dated 7^th December 2009 he claims $5,300.00 which is also unsupported by evidentiary proof. And by letter addressed to the Registrar dated 10^th December 2009 learned counsel for the claimant states that in his written submissions he inadvertently omitted the sum of $8,000.00 for funeral expenses from the items of special damages and that the said sum was not disputed. And indeed it was not by counsel for the defendant. This would bring the total sum for special damages from $12,442.50 to $20,442.50 as shown in the written submissions. The Registrar was asked to place the request before me which was copied to the Attorney General's Chambers. Inasmuch as the figure of $8,000.00 for that head of damage was specifically pleaded by the claimant attorney at the very outset and is not disputed or unreasonable albeit unsubstantiated I am prepared to allow it.

11 I would also allow the other heads of expenses incurred in keeping with Article 988(5) of theCivil Code and these together with funeral expenses aforesaid in the aggregate total $20,442.50 thus:

	$
(1) funeral expenses	8,000.00
(2) disbursements for application of appointment of tutrix	57.50
(3) legal practitioner's fees for same	2,000.00
(4) disbursements for application of appointment for Administratrix	85.00
(5) legal practitioner's fees for same	5,000.00
TOTAL	20,442.50

Loss of Earnings in the Lost Years

12 The action under this head is brought for the benefit of the estate of the Deceased. Damages awarded under this head are referred to as damages for 'the lost years'. As stated earlier (at paragraph 9) 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 theCivil 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.

13 InPlummer et al (paragraph 9 supra) Shanks J in addressing the claim for the lost years held that "the loss which is recoverable is a notional surplus representing the difference between the Deceased's estimated net earnings during the lost years of life on the one hand and the cost of maintaining himself…during the period on the other".

14 It is recognized and accepted that for the purpose of calculating loss of future earnings in the lost years the multiplier by multiplicand approach is generally applicable. SeeHerring v Ministry of Defence (2003) EWCA Civ 528 Philbert v Raye Suit No. 415 of 1989 (Saint Lucia) where a multiplier of 15 was utilized for a 30 year old and Plummer et al where a multiplier of 14 was used for a 27 year old. Counsel for the claimant in the instant case proposed a multiplier of 15 whilst counsel for the defendants suggested that a multiplier of 12 be utilized. For myself a multiplier of 15 would in the circumstances seem to be appropriate.

15 InGeorge v Eagle Air Services Ltd the Board in Privy Council Appeal No. 1 of 2007 taking the deceased Hughes Williams' net earnings each month as $2,500.00 assessed damages as at 12^th July 1993 (the date of filing the writ) to the date of assessment (15^th July 2009) as giving a loss of $570,000.00 (228 months x $2,500.00) by which date Mr. Williams would have been 57 and would have had a further 8 years of working life ahead of him. Taking Ogden Table 9 their Lordships held that the relevant multiplier...