Singh v Persaud
| Jurisdiction | Guyana |
| Judge | Massiah, C.,Perry, J.,Fung-a-Fatt, J.A. |
| Judgment Date | 14 February 1985 |
| Neutral Citation | GY 1985 CA 1 |
| Docket Number | No. 53 of 1982 |
| Court | Court of Appeal (Guyana) |
| Date | 14 February 1985 |
Court of Appeal
Massiah, J.A.; Fung-a-Fatt, J.A.; Perry, J.
No. 53 of 1982
Damages - Quantum — Appeal against decision of trial judge granting to the respondent damages for the lost years as a result of a motor vehicular accident which resulted in the death of her son — Damages awarded under the Accidental Death and Workmens (Compensation) Act — Damages can be awarded for lost years — Award of $27,000 too high and multiplicant of $20 per week substituted — Appeal allowed.
At common law a personal action did not survive the death of the injured person. The action metaphorically died with the demise of the person wronged, with no benefit to his estate. This legal bromide is often expressed by the Latin maxim: “actio personalis moritur cum persona”. The obvious injustice which eventuated from this principle was considerably tempered in England by the enactment of the Law Reform (Miscellaneous Provisions) Act, 1934 (24 and 25 Geo. 5 c. 41) which provides inter alia that causes of action subsisting against or vested in a deceased person survive against or, as the case may be, for the benefit of, his estate, save in a few exceptional cases. The rights of action which survive include claims for pain and suffering [ Slater v. Spreag, [1936] 1 K.B. 83] and for loss of expectation of life [ Rose v. Ford, [1937] 3 All E.R. 359 and Benham v. Gambling, [1941] 1 All E.R. 7.]
In Guyana, the same position was reached by the enactment in 1952 of the Law Reform (Miscellaneous Provisions) Ordinance, now Cap. 6:02, the relevant provisions of which are quite similar to those appearing in the English legislation. Section 11(1) of Cap. 6:02 provides:
“Subject to this section, on the death of any person after the commencement of this Part, 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:
Provided that this subsection shall not apply to causes of action for defamation, or seduction, or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.”
In Guyana, over the years, actions have been brought under the Accidental Deaths and Workmen's Injuries (Compensation) Act, Cap. 99:05 (enacted in 1916), by executors and administrators for the benefit of the dependants of deceased person whose deaths were caused by the wrongful acts or default of others. The damages recoverable thereunder are purely compensatory and are assessed according to the Court's estimate of the economic loss which the dependants have suffered as a result of the cessation of the deceased's support. However, it was only after the enactment of the 1952 Law Reform Ordinance that a personal representative was empowered to institute a claim for the benefit of the estate of the deceased person. But such claims were invariably made for loss of earnings up to the time of death, for pain and suffering borne by the deceased, and for lose of expectation of life, as well as for funeral expenses and other special damages.
The two Acts have worked well side by side, since the 1952 law does not operate to defeat the claims of dependants under Cap. 99:05. [See section 11(5) of the Law Reform (Miscellaneous Provisions) Act, Cap. 6:02]. And if the deceased's dependants succeed beneficially to his estate, the financial benefits due to the dependants from the estate fall to be deducted from the damages for loss of support awarded to them under the Accidental Deaths and Workmen's Injuries (Compensation) Act, Cap. 99:05.
In recent times, however, claims have been made under the Law Reform (Miscellaneous Provisions) Act, Cap. 6:02, for damages for what has come to be called the deceased's “lost years”. What this metaphor means is that for the benefit of the deceased's estate a claim is made against the tortfeasor for damages for the deceased's loss of future earnings during the years of life lost to him because of the defendant's negligence. But are such damages properly recoverable in law? That is the question.
In England it has been authoritatively settled by, the House of Lords in Gammell v. Wilson and Others, Furness and another v. B. and S. Massey Ltd., [1981] 1 All E.R. 578 (two matters heard together) that such damages are properly recoverable. The decision was unanimous. [The position has since been changed by legislation. See section 4(2) of the Administration of Justice Act, 1982.] But the point has never been settled in Guyana. Now, however, it directly arises for determination by this Court, for the trial judge in the matter under instant consideration, like the House of Lords, decided that damages are recoverable for “the lost years”. Her opinion has been called in question by the appellant.
The matter arose in this way: On 19th April, 1978, one Asgar Ali, now deceased, was riding his bicycle along the public road at Mon Repos, East Coast, Demerara, when he was involved in an accident with a motor-wagon driven by the appellant. The impact threw him on to the parapet. He had the misfortune to be so severely injured that he died on the spot. The deceased was intestate, and on 26th April, 1979, Letters of Administration of his estate were granted to his mother Lilian Persaud, the respondent in this appeal.
In her capacity as administratrix the respondent sued the appellant in negligence. She claimed, first of all, damages in excess of $1,500 for the deceased's dependants, under the Accidental Deaths and Workman's Injuries (Compensation) Act, Cap. 99:05, and, secondly, damages in excess of $1,500 for the benefit of the estate of the deceased, being damages for the loss of expectation of life, damage to a cycle, and for funeral expenses. The latter claim was brought under the Law Reform (Miscellaneous Provisions) Act, Cap. 6:02.
The learned trial judge found the appellant wholly liable for the accident, and this has not been challenged. The only dependant for whom a claim was made was the deceased's daughter, Shanta Persaud, who was three months old when her father died. Using a multiplier of 15 and computing Shanta's dependence in monetary terms at $35 per week or $1,820 per annum, the learned trial judge awarded, for Shanta's loss of support, the sum of $27,000 as damages under the Accidental Deaths and Workmen's Injuries Act, Cap. 99:05. As we shall see, the quantum of this award was vigorously challenged in this appeal.
Turning her attention to the Law Reform aspect of the case the trial judge awarded $4,000 for loss of expectation of life. The deceased was 20 years old when he died. In awarding the sum of $4,000, the trial judge allowed, no doubt, for “all that makes up life's fruitful fever(“, to borrow Viscount Simon's words (from Macbeth) in Benham v. Gambling (p. 12). The learned trial judge also awarded the sum of $800 for funeral expenses, and the sum of $300 for loss of the cycle which the deceased was riding at the time of the accident and which was damaged beyond repair. Since the deceased died on the spot, there was, of course, no award for pain and suffering. [See Slater v. Spreag and Wise v. Kaye, [1962] 1 Q.B. 638].
The learned trial judge also made an award, under the Law Reform head, of damages in the sum of $42,120 (for the benefit of the deceased's estate) for the deceased's loss of future earnings during the year's of lost to him because of the appellant's negligence (‘the lost years() on the basis that the deceased would have earned $2,340 a year net after deduction of living expenses, to which the trial judge applied a multiplier of 18 years.
The overall position, therefore, is that damages were awarded under the Accidental Deaths and Workman's Injuries (Compensation) Act, Cap. 99:05, in the sun of $27,000, for the benefit of the deceased's dependant, Shanta Persaud, and under the Law Reform (Miscellaneous Provisions) Act, Cap. 6:02, damages in the sum of $47,220 were awarded for the benefit of the deceased's estate. So far as the Law Reform aspect is concerned the only component in the award of damages that was questioned was that for “the lost years”, for which the appellant said there was no legal foundation. I shall consider the last question first. The challenge of the award of $27,000 will be dealt with later.
Before I attempt to answer that question I think I ought to refer to the argument canvassed by Mr. King, for the appellant, in support of his contention that damages are not recoverable for “the lost years”. He relied on the well-known case of Oliver v. Ashman [1961] 3 All E.R. 323 where the Court of Appeal (Pearce, Willmer and Pearson, L.JJ.) held that earnings lost during the lost years were not recoverable as an additional head of damages. Lord Parker, Chief Justice, who heard the matter at first instance thought otherwise and awarded the plaintiff damages for such earnings. Counsel referred, however, to the opinion of Pearce, L.J. (as he then was) at p. 332, where that learned judge said:
“Thus the Courts have decided that lost wages during the lost years can only be taken into account as one of the threads in the variegated tapestry of life. When the tapestry is severed there is but one sum recoverable in respect of that severance. What is lost is an expectation, not the thing itself.”
And later, on the same page he said:–
“In the present case, therefore, the learned Lord Chief Justice erred in the plaintiff's favour in so far as he took into account apart from the diminished expectation of life the loss of earnings during the years by which the child's life had been shortened.”
Counsel continued that in those opinions the relevant principles were clearly and correctly enunciated.
The appellant also relied on the dissenting opinion of Lord Russell of Killowen in Pickett v....
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