Ramroop v Ramnarine
| Jurisdiction | Guyana |
| Judge | Kennard, J.A. |
| Judgment Date | 27 May 1988 |
| Neutral Citation | GY 1988 CA 2 |
| Date | 27 May 1988 |
| Court | Court of Appeal (Guyana) |
| Docket Number | Civil Appeal No. 57 of 1984 |
Court of Appeal
Fung-a-Fatt, J.A.; Harper, J.A.; Kennard, J.A.
Civil Appeal No. 57 of 1984
D.C. Jagan SC for the appellant
C.A. Hughes SC for the respondent
On the 8th October, 1984 the learned trial judge gave his decision in this matter. On the 15th November, 1984 the appellant filed the present appeal which was within the period of six (6) weeks prescribed by o. 2 r.3(1) of the Court of Appeal rules, Cap. 3:01. On the 10th December, 1984 the respondent filed with the court a cross-notice of appeal and on 14th December, 1984 he served on the appellant a copy thereof. This was not in compliance with o. 2 r.5(1) of the Court of Appeal rules which reads thus:
“If a respondent intends, upon the hearing of an appeal, to contend that the decision of the court below should be varied, he shall within fourteen (14) days after service of the notice of appeal, or within such time as may be prescribed by special order made on application, give written notice of such intention to any parties who may be affected by such contention, and in such notice shall clearly state the reason on which he intends to rely and within the same period he shall file a copy of such notice with the Registrar.”
Mr. Hughes has advanced no reason for the failure of the respondent to file and serve the cross notice of appeal within the prescribed time. He contended that a cross notice of appeal does not launch an appeal, which a notice of appeal does, and that failure to file and serve it in time should not be viewed with the same strictness with which one views the filing of a notice of appeal out of time. He referred to O. 1, r.8). O. 2, r. 5(3) of the Court of Appeal Rules Cap. 3:01 as well as to section 7 of the Court of Appeal Act Cap. 3:01.
It is true that a cross notice of appeal does not launch an appeal but where one seeks the indulgence of the court, that person must offer some good excuse or some good explanation for his default or his failure to act in time. See Persaud v. Ramson (1979) 26 WIR 229, Hardial et anor v. Sookhai (1980) 28 WIR p. 261, City Printery v. Gleaner Co. (1968) 13 WIR at p. 132 I, Ratnam v. Cumarsammv [1964] 3 All ER p. 933 (P.C.) and Hing v. Hing (1977) 25 WIR.
In Hardial et anor v. Sookhia (supra) Luckhoo JA said at p. 265:
“One must bear in mind that respect for, and faithful observance of, the rules will always ensure a smooth working of the machinery for the determination of a litigant's rights.”
In Ratnam v. Cumarsammy (supra) Lord Guest who delivered the advice of the Board made the following pertinent remarks:
“The rules of the court must prima facie, be obeyed, and in order to justify a court in extending the time during which some steps in procedure requires to be taken there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.”
Finally, I would wish to refer to what Edmund Davies LJ, as he then was, said in Revinci v. Prentice Hall Incorporation [1969] 1 All ER 772 at p.774:
“And if there is a non-compliance … that is something which must be explained away. Prima facie if no excuse is offered, no indulgence should be granted.” (See also Evelyn v. Williams (1962) 14 WIR p. 265).
Even though we are not dealing with an application for an extension of time in which to file a notice of appeal, nonetheless, it is important that the respondent should have advanced, to quote George JA as he then was in Ramson v. Persaud (supra) “a good reason” for failing to file his cross notice of appeal in time. Accordingly, Mr. Hughes' application to deem cross notice of appeal to have been properly filed is refused as there is no reason given why the cross notice of appeal had not been filed in time.
However, even if I am wrong in that respect, the cross appeal would still be unsuccessful, as I cannot come to the conclusion, having regard to the evidence led, at the trial, and accepted by the trial judge, that the trial judge can be faulted when he came to the conclusion that the respondent was entirely to be blamed for the accident. There were two versions of the accident given at the trial one by the witness Cameron and the other by the respondent. There was no third version of the accident given by any other person at the trial. It was a simple issue of fact to be decided by the trial judge and he (the trial judge) had to decide whether to accept Cameron's version, which was simple and straight forward. His evidence in chief was in no way destroyed by cross-examination and it pointed to the fact that respondent was entirely at fault.
In my view it cannot be said that the learned trial judge had failed to evaluate the evidence properly. (See Hansraj v. Bookers Sugar Estates (1969) GLR). Having accepted Cameron's evidence it meant that the trial judge had no alternative but to find that the respondent was totally to be blamed for the accident. Claim under the Accidental Deaths and Workman's Injuries (Compensation) Act, Cap. 99:05)
Before dealing with claim under the Law Reform (Miscellaneous Provisions) Act, Chap. 6:02 1 would wish to deal with that made under the Accidental Deaths and Workmen's Injuries (Compensation) Act, Cap. 99:05. In referring to a claim made under Cap: 99:05 Crane JA as he the was, said in Khan v. Khan (1973) 21 WIR p. 129 at p. 132:
“The basis of an award under Cap. 99:05 is exactly the same as it is under the Fatal Accidents Act, 1846-1908 (Lord Campbell's Act) viz: financial loss or loss of support which the statutory dependents must prove. What they must prove as a loss is not that which the deceased, had he lived, was capable of earning, but the financial benefit the particular dependant or dependants who are entitled to claim were accustomed to derive in respect of what it took him to maintain them during his lifetime. This is the only permissible measure of damages.
Under cap. 99:05 the claim is limited solely to pecuniary Loss, actual or prospective. Put another way: the entitlement is to pecuniary compensation for loss of benefits the dependants would have derived from the deceased's earning power. As Holyroyd Pearce LJ pointed out in Oliver v. Ashmen such benefits were not earnings which he lost during lost years, but certain resulting benefits which the dependents would have enjoyed had he continued to live and support himself and had he continued out of the surplus to provide for them.”
The trial judge stated inter alia:
“I therefore come to the conclusion that the deceased's total weekly contribution to the upkeep of his household was in the vicinity of $120.00 (one hundred and twenty dollars). Of this amount I estimated the wife's dependency to be $40.00 (forty dollars) per week and the child's $20.00 (twenty dollars) per week and apportioned the remainder to the deceased.”
Having regard to the evidence I cannot say that the trial judge went wrong when he came to the conclusion that deceased's total weekly contribution to the upkeep of his household was in the vicinity of $120.00 (one hundred and twenty dollars). He had seen and heard the appellant and he concluded that “she deliberately exaggerated not only the nature of the job the deceased did but also the amount given to her for the upkeep of the household.”
As a matter of fact Mr. Jagan did not challenge the figure of $120.00 (one hundred and twenty dollars) per week arrived at by the learned trial judge.
According to the evidence the appellant remarried on 13th April, 1983 so that her dependancy could not have extended beyond that date, which was approximately six months after the death of accused which was on 16th October, 1983. See ( Curwin v. James [1963] 2 All ER p. 619. Using the figure of $40.00 (forty dollars) per week as the multiplicand which would give us $2,080.00 per year and half as the multiplier the award to the appellant (wife) under cap. 99:05 should have been $1,040.00 (one thousand and forty dollars) and not the $4,160.00 (four thousand, one hundred and sixty dollars) awarded by the trial judge.
In respect of the child who was born on 13th February, 1978 and who was four years plus at the time of the accident, it would seem to me that the amount of $7,800.00 (seven thousand, eight hundred dollars) awarded to her cannot be right.
It would seem to me that upon remarriage of the plaintiff, the legal obligation to maintain the child fell on the new (foster) father and husband so that the child's dependency, like that of the mother (the appellant) would have come to an end upon the remarriage of the latter. By Section 2(b) of the Maintenance Act, Cap. 45:03 (as amended by the Children born out of wedlock (removal of discrimination) Act, 1983 (No. 12 of 1983) every man is required to maintain his children (including foster children).
In the absence of evidence that the laws of Trinidad and Tobago are different to that of our laws, it must be presumed that the laws of Trinidad and Tobago are the same as that of Guyana so far as there being a legal obligation on the foster...
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