Fenton Auguste Appellant v Francis Neptune Respondent [ECSC]

• Jurisdiction: St Lucia
• Judge: SATROHAN SINGH J.A.,SATROHAN SINGH,Justice of Appeal,ALBERT REDHEAD,ODEL ADAMS
• Judgment Date: 24 November 1997
• Judgment citation (vLex): [1997] ECSC J1124-4
• Court: Court of Appeal (Saint Lucia)
• Docket Number: CIVIL APPEAL NO. 6 OF 1996
• Date: 24 November 1997

[1997] ECSC J1124-4

IN THE COURT OF APPEAL

Before:

The Honourable Mr Satrohan Singh Justice of Appeal

The Honourable Mr Albert Redhead Justice of Appeal

The Honourable Mr. Odel Adams Justice of Appeal [Ag]

CIVIL APPEAL NO. 6 OF 1996

Between:

Fenton Auguste

Appellant

and

Francis Neptune

Respondent

Appearances:

Mr Hilford Deterville, Mr Sylvester Anthony with him for the appellant

Mr. Dexter Theodore for the respondent

SATROHAN SINGH J.A.

1 On July 31, 1996, Matthew J in this negligence suit, awarded the appellant the sum of $133,000 as general damages and $35,161.28 as special damages for injuries sustained by him in a motor accident involving the respondent. The appellant is dissatisfied with this award and has appealed to this Court. This appeal therefore concerns the question of quantum of damages only.

2 The evidence disclosed, that as a result of the accident, the appellant, who was then 21 years old, was converted from a healthy whole person into a paraplegic. The doctor testified that the appellant suffered a dislocation of the 11 ^th and 12 ^th thoracic vertebrae which resulted in complete spinal cord transection and paraplegia. The doctor also testified that the appellant would be confined to a wheel chair for the rest of his life, and will suffer from urinary incontinence which will require use of a permanent condom urinal. He will have to endure constipation and foecal incontinence and will suffer from bed sores and lower back pain. The doctor considered these ailments permanent. This evidence also showed that the appellant will never walk again, he will have no control of his bowel and urine movements, and that he was more or less now a helpless person. He will not be able to look after himself after he has urinated or passed stool. He would need to wear pampers for his incontinence and these conditions will prevail until the end of his life.

3 The challenge in this appeal related to the awards made with respect to almost all the heads of damages. The appeal therefore is really a challenge to the exercise of the judge's judicial discretion when he made those awards.

4 The principles of law relevant to the powers of a Court of Appeal in attempting to disturb a discretionary order of a judge have now been well-established and have been dealt with by this Court on numerous occasions the latest of which was in the case of Alphonse v. Deodat RamnauthCivil Appeal No. 1 of 1996 BVI: In that case this Court crystallised the law as follows at p. 11 of the said judgment:

"In appeals, comparable in nature to the present one, it must be recognised that the burden on the appellant who invites interference with an award of damages that has commended itself to the trial Judge is indeed a heavy one. The assessment of those damages is peculiarly in the province of the judge. A Court of Appeal has not the advantage of seeing the witnesses especially the injured person, a matter which is of grave importance in drawing conclusions as to the quantum of damage from the evidence that they give. If the judge had taken all the proper elements of damage into consideration and had awarded what he deemed to be fair and reasonable compensation under all the circumstances of the case, we ought not, unless under very exceptional circumstances, to disturb his award. The mere fact that the Judge's award is for a larger or smaller sum than we would have given is not of itself a sufficient reason for disturbing the award. But, we are powered to interfere with the award if we are clearly of the opinion that, having regard to all the circumstances of the case, we cannot find any reasonable proportion between the amount awarded and the loss sustained, or if the damages are out of all proportion to the circumstances of the case. This Court will also interfere if the Judge misapprehended the facts, took irrelevant factors into consideration or applied a wrong principle of law, or applied a wrong measure of damages which made his award a wholly erroneous estimate of the damage suffered. The award of damages is a matter for the exercise of the trial judge's discretion and unless we can say that the judge's award exceeded the generous ambit within which reasonable disagreement is possible and was therefore clearly and blatantly wrong we will not interfere. [See the judgment of this Court in Bernard Nicholas v. Kertist AugustusCivil Appeal No. 3 of 1994 Dominica dated April 15, 1996.]"

5 Applying this dictum to this appeal, I propose now to examine the respective heads of damages. In carrying out this exercise, I say immediately that I would find myself quite justified in disturbing any of the awards made by the judge if any needed such disturbance because, from the judge's own judgment, it appears that he failed to take into consideration matters which were very relevant in the making of the awards under the respective heads. I refer to this observation by the judge:-

"An abundance of cases was cited and I do not propose to examine them all or even to refer to all of them. I am also not going to undertake any economic or statistical analysis of the cases, with or without price index, in order for me to determine the quantum of damages which I regard as appropriate for the Plaintiff."

6 I intend first to deal with the applicable multiplier.

THE MULTIPLIER:

7 In determining the multiplier, the learned judge treated this 21 year old appellant as having a working life of up to 61 years and chose a multiplier of 15. In arriving at this figure, the judge seemed to have relied on the case of Moriarty v. Mc Carthy (1978) 2 All E.R. 213, where a paraplegic of 24 years old, was given a multiplier of 15 and Hunte v. Severs (1994) 2 WLR where the House of Lords upheld the Court of Appeal increasing to 15 a multiplier of 14 on a life expectancy of 25 years which was given by the trial judge. However, in the case of Graham v. Dodds (1983) 1 WLR 313, the House of Lords assumed that a multiplier of 18 in the case of a breadwinner between 20 and 30 could not be considered excessive. In our jurisdiction a man of 45 years with a working life expectancy of 65 years was given a multiplier of 12 by this Court [ Alphonse v Ramnauth] (supra). In that case, there is also disclosed a multiplier of 10 with respect to a 57 year old doctor where the evidence disclosed a working life of up to 70 years ( Franklyn Lloyd v. Nathaniel Phillip, Civil Suit No: 79 of 1991 St. Kitts).

8 Matthew J, in determining the appropriate multiplier, apart from making reference to the first three cases mentioned above, did not state what principles he applied in arriving at the multiplier of 15. We will presume that he adopted the correct principles. Those principles were laid down by us in Alphonse v Ramnauth at p. 13 as follows:

"In determining the multiplier a Court should be mindful that it is assessing general and not special damages. That it is evaluating prospects and that it is a once for all and final assessment. It must take into account the many contingencies, vicissitudes and imponderables of life. It must remember that the plaintiff is getting a lump sum instead of several smaller sums spread over the years and that the award is intended to compensate the plaintiff for the money he would have earned during his normal working life but for the accident { SeeFranklyn Lloyd v PhillipSupra}.

9 Applying these principles, and based on the above references, I am of the considered opinion that Matthew J erred in his judgment when he fixed the appellant's working life as ending at 61 and the multiplier at 15. In my judgment, considering all the circumstances and applying the law as abovestated, I would give the appellant a working life of up to 65 years and fix the multiplier at 18.

THE MULTIPLICAND

10 On the question of the appropriate multiplicand, the learned judge found that the appellant's real wages were $200: per fortnight or $400: per month. He then said "that the plaintiff had not got a secure job, and employment may have been seasonal or dependent upon harvesting. The fortunes of banana farmers vary and so must the workers". The learned judge then arrived at a multiplicand of $2,500: per year.

11 I have perused the record of appeal in this matter and I can find no evidence to support the facts in the above quotation of the judge. I therefore find great difficulty in reconciling how, with an earning of $400: p.m. the annual earning could be $2500: I would have thought, applying simple mathematics, that the correct figure would be $4,800: per year. I would therefore fix the multiplicand at $4,800. In arriving at this multiplicand, I am conscious of the principle enunciated in Cook Cookson v. Knowles (1979) AC 556 and restated by us in Alphonse v Ramnauth, that for the purpose of arriving at the multiplicand, the basis should be the least amount the respondent would have been earning if he had continued working without being injured. Having adjusted the multiplier and the multiplicand, I now proceed to deal with the damages proper. I dealt first with general damages.

GENERAL DAMAGES

1. PAIN SUFFERING AND LOSS OF AMENITIES

12 Matthew J, in considering the nature and extent of the injuries sustained by the appellant, the nature and gravity of his resulting physical disability, his pain, his suffering and the loss of his amenities, found that the appellant will remain with all his suffering as found by the doctor for the rest of his life. The learned judge also found no evidence of loss of expectancy of life and found a probability of 40 years more working life. On those findings, he awarded the appellant $55,000: damages covering those heads of damages. In arriving at this sum, the learned judge referred to certain unreported cases as precedents which dealt with paraplegia.

13 These cases show that in St Lucia in 1974 a 40 year old paraplegic was awarded $25,000: In 1990, a 60 year old St. Lucian knee...