Eldon Wilson et Al v Lance Willie

• Jurisdiction: St Lucia
• Judge: Ellis JA
• Judgment Date: 24 July 2023
• Judgment citation (vLex): [2023] ECSC J0724-1
• Docket Number: SLUHCVAP2020/0006
• Court: Court of Appeal (Saint Lucia)

Between:

[1] Eldon Wilson

[2] Donny Camille

[3] Miriam Holt

Appellants

and

Lance Willie (Qua Administrator of the Estate of George Willie)

Respondent

Before:

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mde. Margaret Price Findlay Justice of Appeal

The Hon. Made. Vicki Ann Ellis Justice of Appeal

SLUHCVAP2020/0006

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil Appeal — Motor vehicular accident — Assessment of damages — Special damages — Loss of income from date of death to date of judgment — Future loss of income — Jurisdiction of an appellate court to interfere with an award of damages — Jurisdiction of an appellate court to allow new points to be taken on appeal — Whether the master erred when he failed to make any deduction for expenses from the deceased's income — Whether the master erred by finding an agreement between the parties on the multiplier of 4 years and award damages for future loss of earnings in the lost years — Whether the master misdirected himself given his findings on the award for loss of earnings from the date of the accident to the date of judgment — Whether the master erred in his calculation of the multiplier and multiplicand in his assessment of damages for loss of income — Interest — Costs

Lance Willie, the respondent (the claimant in the court below) instituted proceedings in the capacity of administrator of the estate of his deceased father who passed away on 9 ^th June 2016 at the age of 62, as a result of injuries sustained in a motor vehicular accident said to be caused by the negligence of the appellants (defendants in the court below). The respondent sought statutory damages under Articles 602 and 998 of the Civil Code on behalf of the estate of the deceased and on behalf of the wife of the deceased respectively. The respondent was awarded: (i) special damages in the sum of $10,371.20 representing the funeral expenses and the costs of the grant of letters of administration; (ii) interest on the special damages at a rate of 3% from the date of filing the claim to the date of judgment; (iii) general damages in the sum of $3,500.00 for loss of expectation of life; (iv) $79,380.00 for loss of income from the date of death to the date of judgment; (v) $90,720.00 for future loss of income; (vi) interest at a rate of 6% per annum from the date of judgment until the judgment debt is paid in full; and (vii) prescribed costs in the sum of $31,125.00.

Dissatisfied with the result, the appellants appealed the orders made in respect of: (1) special damages; (2) loss of income from the date of death to the date of judgment; (3) future loss of income; and (4) costs. They also asked that this Court assess the damages and costs payable.

Held: allowing the appeal in part and making the orders at paragraph 98 of this judgment, that:

• 1. Generally, an appellate court will not interfere with an award of damages unless the award is shown to be the result of an error of law or so inordinately disproportionate as to be plainly wrong. Special damages however must be specifically pleaded and strictly proved. An appellate court is therefore free to interfere with or set aside any award of special damages for an amount which has not been specifically pleaded and proved.

  Flint v Lovell [1935] 1 KB 354 applied; Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 applied; Alphonso v Deodat Ramnauth Civil Appeal No. 1 of 1996 BVI (delivered 21st July 1997, unreported) followed.

• 2. An appellate court has a general discretion on whether to allow new points to be taken on appeal. The decision of whether to permit the new point will ultimately depend upon the analysis of all the relevant factors, including the nature of the proceedings in the lower court, the nature of the new point and any prejudice that would be caused to the opposing party if the new point is allowed. The appellants advanced a new point under the head of special damages but provided no exceptional reasons which would justify the Court in exercising its discretion. Therefore, public policy arguments in favour of finality in litigation demand that these grounds of appeal not be entertained.

  Pittalis v Grant [1989] QB 605 applied; Singh v Dass [2019] EWCA Civ 360 followed.

• 3. Where a living claimant's expectation of life has been reduced due to the defendant's negligence, the claimant is entitled to recover damages for loss of earnings throughout both the period that they are likely to remain alive and for the ‘lost years’ during which they would have lived but for their injuries. The damages are assessed after deducting the claimant's own living expenses which they would have spent during the lost years. Here, the Master failed to make any deductions to account for the deceased's personal expenses when he was obliged to do so. Therefore, the grounds of appeal on this general issue succeed.

  Pickett v British Rail Engineering Ltd [1980] AC 136 applied; Gammell v Wilson; Furness v B&S Massey Ltd [1982] AC 27 applied.

• 4. The sum to be deducted as living expenses in a ‘lost years’ claim is the proportion of the deceased's net earnings that he spends to maintain himself at the standard of life appropriate to his case. Any sums expended to maintain or benefit others do not form part of the deceased's living expenses and are not to be deducted from the net earnings. There are different approaches to the assessment of the multiplicand depending on the state of the evidence before the court. These are: (a) the item-by-item approach; and (b) the percentage approach. It follows that, although the courts have employed a modern practice of deducting a percentage for what the deceased would have spent exclusively on himself, where there is striking evidence which would make the conventional figure (50%) inappropriate, the Court will depart from it. While there was no specific evidence as to the deceased's living expenses, after deducting his contributions to his wife's expenses from his net monthly income ($1,250.00 – $1,000), the maximum available for his own personal maintenance was $250.00. In these circumstances, the deduction of 20% should apply resulting in a multiplicand of $1,000 per month or $12,000 per year.

  Harris v Empress Motors [1984] 1 WLR 212 followed; Phipps v Brooks Dry Cleaning Service Ltd [1996] EWCA Civ J0711-12 considered; Shanks v Swan Hunter Group Plc [2007] EWHC 1807 (QB) considered.

• 5. The division of an award into a pre-trial and post-trial assessment or the Cookson v Knowles approach has continued to be applied by the courts in this region despite the pronouncement in Knauer v Ministry of Defence. The starting point in the calculation of the multiplier is the number of years that is anticipated that the dependency would have lasted had the deceased not passed away. The learned Master was therefore correct in concluding that the dependency must be considered from the date of the accident (presumably the date of death) to the date of assessment i.e., 3.62 years. Applying the multiplicand, the total pre-trial loss would be $43,440.00 (12,000.00 X 3.62 years).

  Cookson v Knowles [1979] AC 556 applied; Knauer v Ministry of Defence [2016] UKSC 9 considered; Cadet's Car Rentals and another v Pinder [2019] UKPC 4 applied; Scott v Attorney General [2017] UKPC 15 applied.

• 6. The multiplier is related primarily to the deceased person's age and the probable length of his working life at the date of death. In that regard the courts in this region have generally taken the view that the working life of a person in the respondent's sphere of work ends at 65. Applying that ratio, there should be no award made with respect to the post-trial (pre-retirement) loss. In proceeding on the basis that the parties had agreed that a multiplier of 4 years was appropriate, the Master failed to apply the relevant legal principles in determining what if any is the appropriate multiplier for the post-trial loss. Had the learned Master carried out that analysis, he would have considered that there was in fact no agreement between the parties on this issue and that at the point of trial, the deceased would have been 66 years 5 months and 11 days old. It is therefore clear that the award of $90,720.00 for loss of future income is wholly unsupported and must be set aside.

  Alphonso v Deodat Ramnauth Civil Appeal No. 1 of 1996 BVI (delivered 21st July 1997, unreported) followed.

• 7. Where an award of damages has been adjusted, costs payable must also be adjusted and quantified on the basis of the revised award. The circumstances of this case warrant the value of the claim to be decided based on the amount ordered to be paid. The total value of the claim would therefore involve the sums of the special damages plus the interest, general damages, and the amount substituted by this Court for pre-trial loss of earnings.

  Rule 65 of the Civil Procedure Rules 2000 considered; Cleveland Donald v The Attorney General Civil Appeal No. 32 of 2003 Grenada (delivered 26th July 2004, unreported) followed.

Appearances:

Ms. Cleopatra McDonald and Ms. Diana Thomas for the appellants

Mr. Dexter Theodore, KC for the Respondent

Ellis JA

1 This is an appeal by the appellants (the defendants in the court below) in respect of a claim brought by the respondent (the claimant in the court below) under Articles 602 and 988 of the Civil Code of Saint Lucia 1 for damages arising from the death of his father who passed away on 9 ^th June 2016 at the age of 62 (“the deceased”) as a result of injuries sustained in a motor vehicular accident said to be caused by the negligence of the appellants.

2 The respondent brought this claim in the capacity of administrator of the estate of his deceased father, and in his statement of claim, sought statutory damages under Article 602 of the Civil Code on behalf of the estate of the deceased, and under

Article 988 of the Civil Code on...