IN THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH

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					                         IN THE EASTERN CARIBBEAN SUPREME COURT

                                 IN THE HIGH COURT OF JUSTICE

                                                (CIVIL)

ANTIGUA AND BARBUDA

Suit No. ANUHCV 2008/0322

                 IN THE MATTER of a Fatal Accident Involving Steve Fraser, Deceased

                                                  And

IN THE MATTER of the Fatal Accident Act, Cap 166 of the Revised Edition (1992) of the Laws of Antigua
                                           and Barbuda

                                                  And

IN THE MATTER of the Law Reform Miscellaneous provisions Act: Cap 244 of the Revised Edition (1992)
                              of the Laws of Antigua and Barbuda

BETWEEN:

                                      ROXANNE FREDERICK

                                    As Administratrix for the Estate of

                                    STEVE FRASER (Deceased)                  Claimant

                                            And

                                      RICHARD LAM                            Defendant

Appearances:

Mr. Cosbert Cumberbatch; for the Claimant

Mr. Hugh Marshall Jr. and Mrs. Cherissa Roberts-Thomas; for the Defendant.

                                  ……………….………………………

                                    2010: 24th March; 25th March;

                                    2010: 29th July;

                                  ………………..………………………



                                                                                                    1
      1. Harris J.: This is an action commencing in Negligence and arising out of a fatal motor vehicle
         accident. The claimant is the mother of the deceased, Steve Fraser (“deceased”.) and
         Administrator of the estate of the said Steve Fraser (deceased.) This action is brought pursuant to
         the Fatal Accidents Act Cap 166 of the Laws of Antigua and Barbuda and the Law Reform
         (Miscellaneous provisions) Act Cap 244. The deceased was 30 years old at the time of his death.



      2. At approximately 9:25 am on Monday the 28th of May 2007, the deceased Steve Fraser was riding
         a motor cycle along St. Johns St. in the City of St. Johns in Antigua and Barbuda. He was riding
         from East to West, when the defendant who was driving an unregistered and uninsured motor car,
         whilst overtaking a vehicle parked on his left side of the road, moved onto the oncoming lane of the
         deceased and collided with the motorcycle of Steve Fraser which was travelling in the opposite
         direction. Steve Fraser was thrown from his motor cycle and subsequently pronounced dead at the
         Holberton Hospital.



      3. The claimant alleges in her Statement of case, that the accident was caused by the negligence of
         the defendant when he lost control in the process of overtaking a vehicle when it was dangerous to
         do so and thereafter collided with the deceased.1



      4. The claimant alleges that by reason of the negligence of the defendant, the deceased estate
         suffered loss and damage as follows: $12,000.00 for the total loss of the motorcycle; a sum for the
         loss of monies the claimant reasonably expected to receive from her now deceased son, during his
         lifetime (and hers); $4000.00 for bereavement; $7,800.00 for funeral expenses. The claimant also
         claims other relief.


      5. The defendant denies liability as alleged and avers that on the day in question, he was lawfully
         driving along St. Johns St. and whilst in the process of lawfully and cautiously overtaking a double
         parked vehicle on his side of the road he observed the deceased travelling toward him on a
         motorcycle at an excessive speed, drifting and swerving from side to side in a negligent manner.
         He alleges that he applied his brake but the claimant ran straight into the front of his vehicle. The
         defendant claims in the alternative, Contributory Negligence.



      THE EVIDENCE


1
    See para 12 of the amended statement of claim at pp 22 of the Trial Bundle.

                                                                                                            2
       6. The claimant relied on the evidence of one, Freadlyn Teague, in support of the issue of negligence
          and liability of the defendant. On the issue of the claimant‟s dependency on the deceased, Steve
          Fraser, and the consequent loss and damage to her, the claimant testified on her own behalf. The
          defendant, Richard Lam, gave evidence in support of his defense to this action along with one,
          Shannakay Wright.



       7. Fredlyn Teague was an interesting witness and impressed me as being truthful. Her evidence was
          inherently consistent, logical and robust under cross examination. It contained detail suggestive of
          real observation and of good recall. At the onset, let me say that the evidence of Mr. Wright,
          witness for the defendant, although broadly consistent with that of the defendant, in several
          particulars ran against the grain of the evidence and was simply implausible. I did not weight his
          evidence very highly or at times, at all.



       8.    Fredlyn Teague said that she had just come from attending some street festivities and from
            following a music band on Old Parham street and was sitting on her gallery on the southern side of
            St. Johns Street catching her breath, when she observed the deceased, Steve Fraser, also known
            as “birdman”. She said she heard his motorbike coming. The accident she said happened right in
            front of her.



       9. Teague said that she had at the same time seen the defendant‟s car coming from up at the
          Popeshead St. corner and it did not stop. She said the defendant‟s car overtook another in front of
          her, at full speed and first hit a jeep parked on the other side of the road to where she was sitting.
          The upshot of her evidence in chief was that the defendant had overtaken a car at full speed and
          ended up on the side of the road that the deceased was coming up.2 She said she didn‟t take “her
          eyes of the two of them…two of them full speed …none of them could turn back. I knew there was
          going to be an accident”. She continued; “The collision was head on. The driver of the car never
          got back on his side of the road.”3 The witness testified that the defendant hit the parked jeep
          twice; once going forward and once going back. She said the owners of the jeep had just arrived
          on the spot in front of their house, and had not even finished taking all the groceries from the
          vehicle yet when the collision took place. The witness testified that just prior to the collision the girls
          in the defendant‟s car were screaming. The deceased body was tossed into the air and landed face
          down on the road. Blood was coming from his nose ears and mouth. He did not move. The Death
          certificate refers to him dying from Massive internal hemorrhage. He died the same day.



2
    See paras 3 of the witness statement of Teague at pp. 97 of the Trial Bundle.
3
    See para 4 of the witness statement of Teague at pp 97 of the trial Bundle.

                                                                                                                   3
       10. The evidence from Teague suggested that the deceased was also riding his motor bike at a fast
           rate of speed. The Defendant supports this observation. Further, the nature of the injuries
           sustained by the deceased as described also by Ms.Teague, including the fact of his death,
           suggests at the very least, that he was not riding at a slow rate of speed. I accept that he was
           riding fast and as Teague observed, “…two of them; full speed. None of them could turn back.”



       11. The evidence of Teague principally establishes in my view, the speed and manner of driving of the
           defendant. He too was driving at full speed, and could not turn back according to Ms.Teague. But
           further, the Defendant by his own admission and buttressed by the evidence of Ms. Teague,
           maneuvered his vehicle into the oncoming lane of the deceased in overtaking a double parked car
           on his left side of the road.



       12. It is the evidence and does not appear to be in dispute, that the road was a wide road. Wide
           enough to take four (4) cars across its width; that with a car parked on either side of the road was
           left adequate space for movement of vehicles along two centre lanes. The double parked car
           referred to by the defendant, would have effectively reduced the road from four lanes to one lane.
           That remaining one lane, in the normal course of things would be the lane to the defendant‟s right,
           or in simple terms, the oncoming deceased lane of passage.



       13. There is nothing in the evidence that suggest to me that the deceased came out of nowhere, so to
           speak. The deceased came up a straight road, albeit at a fast pace, with his motor bike making
           “…the sound like a motorcycle usually make.” 4 The defendant in cross examination admitted that;
           “St. Johns Road is straight and has good visibility for at least 100 yards”.



       14. The defendant testified as to the circumstances in which the accident took place5. He said that as
           he was driving down St. Johns Street heading towards Popeshead Street, he observed that cars
           were parked on both sides of the street and that there was a car double parked on his left side of
           the street. He testified, in chief, that as he approached the double parked vehicle he looked ahead
           to ensure it was safe to proceed. He said that there was no oncoming traffic, so he proceeded to
           pass the double parked car. In doing so, he says he saw a man riding a motorcycle in an erratic
           manner on the block below Popeshead Street heading towards him and drifting from one side of
           the road to the other. He was riding with some speed.


4
    See evidence of Fredlyn Teague in cross examination.
5
    See para 5 and para 6 of the witness statement of Defendant at pp 108 of the trial bundle.

                                                                                                             4
       15. The defendant says that he continued to proceed cautiously while keeping an eye on the
           motorcycle. The deceased he said, continued to approach him at a high speed and swerving from
           side to side. Just as the defendant was alongside the double parked vehicle, the defendant
           testifies, that he applied his brakes, not knowing what the deceased would do next. He said that as
           he applied his brakes the motor cycle ran head on into his vehicle; “as though the rider never saw
           me.” 6 . The defendant‟s witness, Mr. Wright, himself not a licensed driver, testified in cross
           examination that the defendant ended up on the right hand side of the road because he was trying
           to avoid the deceased. Well, not even the defendant gave this evidence for himself. I do not accept
           this opinion from the witness. In any event, the evidence of Ms. Teague is preferred.



       16. The evidence of the defendant in cross examination is that he was not going at a fast rate of
           speed. He said that the accident did happen on the right hand side of the road and said; “Yes, that
           is the side of the road for vehicles travelling from the west to the east” 7. He admitted that he was at
           the Jueve festivities that morning and had been drinking alcohol, but that at the time of the collision
           he was not drunk. He said in cross examination that as a prudent driver, seeing an erratic motor
           cyclist coming toward him he ought to be mindful of him. He continued in cross examination;
           “Depending on the situation I would say yes, I ought to have stopped” and further; “Yes it is my
           duty to ensure that it is safe to overtake”. The defendant testified that when he saw the deceased
           he was to his (defendant) left. The whole of the evidence of the defendant (and the other
           witnesses) considered by the Court is in the witness statements and the notes of evidence.



       17. In the end, Roxanne Fredrick, the mother of the deceased, testified that the deceased was her son
           and that he earned an income of 900.00 per week and gave to her approximately $250.00 a week.
           She testified in chief that prior to the accident he was assisting her to travel to the USA to seek
           medical attention. In amplification of her witness statement, she testified that she had been
           hospitalized for Kidney problems and she and the deceased were making plans for her to go
           overseas for medical help. She said she expected her son to continue to help her financially for
           another 2-3 years.



       18. In cross examination, she said that she does not work and is supported by her husband. She said
           that at the time of his death, the deceased was not living with her. She testified that her son was
           born in Guyana and trained in Guyana to be a mechanic, but at the time of his death he was a
           builder- a scaffold director - working on a tall hotel construction. She could not account for when

6
    Ibid., para 6.
7
    The defendant was travelling east-west; in the opposite direction.

                                                                                                                 5
        last her son had obtained a work permit to work in Antigua, but was sure that he had a valid work
        permit. She testified that the motor bike was valued at $3,000.008.



                                              FINDINGS OF FACT



    19. Suffice it to say, I accept that the deceased is in fact dead as evidenced by the testimony in this
        matter and the Small Estates Probate ANUHPB2008/0092 – Letters of Administration extract of the
        21st April 2008 - exhibited at pp 15 and pp 16 of the Trial Bundle and the Death Certificate
        extracted on the 24th march 20089. There is no evidence to contradict this; the defendant has not
        refuted this fact and the deceased is more likely than not to be deceased as alleged10. I accept that
        he died from the subject collision11.



    20. I accept as the truth, the evidence of Fredlyn Teague as to how the accident took place and for the
        reasons variously provided above. I find that the defendant‟s account of the facts implausible,
        especially having regard to the short instance in time that the whole incident took to unfold. His
        account suggested a slowly unfolding saga, allowing time for deliberation. This not what happened.
        The incident unfolded in few seconds. The defendant was driving at a fast rate of speed, and
        contrary to his evidence that he observed the road being clear, he did observe the deceased
        coming up in the opposite direction and at this point was required to take prudent action, but
        nonetheless did not do so and proceeded to maneuver his vehicle in such a manner that was
        always likely to wrought the catastrophic results it did. He failed to adequately control his vehicle
        and or lost control of the vehicle; he failed to drive with due care and attention; he failed to avoid
        the collision; failed adequately to heed the presence of the deceased motorcycle; failed to drive
        with reasonable care and skill; failed to take appropriate care for the safety of other road users, in
        particular the deceased; drove at excessive speed in all the circumstances; collided first with a
        parked vehicle and then the deceased. Counsel for the defendant submits that the claimant has
        failed to establish by evidence, that the defendant lost control of his vehicle thereby causing the
        collision. He submits that that is the case pleaded by the claimant. The claimant‟s case is not so
        restricted. But in any event, in my view, the defendant first veering to the far side of the road, then
        hitting the parked jeep and then colliding with the deceased is each, and/or collectively, evidence




8
  The pleading place the value at $12,000.00
9
  See pp 18 of the Bundle.
10                                                                                                         th
   The Amended Defense at para 1 thereof, expressly admits the death of the deceased. at age 30 on the 28 May
2007.
11
   See the “Cause of Death” entry on the death certificate and see the Statement of Case and the evidence.

                                                                                                                6
         of a loss of control by the defendant thereby resulting in the collision. No evidence has been led as
         to pain and suffering or loss of amenities with respect to the deceased12.



     21. On the question of the dependency considerations between the claimant and the deceased; I
         accept that the deceased was required to have a work permit in Antigua and Barbuda. There is
         insufficient evidence as to whether at the time of his death he had such a work permit. The Court
         takes Judicial Notice of the substantial number of persons living and working in Antigua without the
         appropriate formal immigration status13. The fact of his working in Antigua and Barbuda is not of
         itself, evidence of his lawful status in the Island.



     22. I accept also that the deceased, born in Guyana, was trained as a mechanic in Guyana. I accept
         the evidence that he was a scaffold director in Antigua and worked for $900.00 a week. There is no
         evidence to contradict this. Certainly, if the defendant‟s suggestion that the deceased did not have
         a work permit and by extension was unlawfully working in the island, one would not expect the
         deceased to have been in receipt of a pay slip and to have been making the various statutory
         deductions referred to by counsel for the defendant in cross examination of the Claimant. In any
         event, even if these existed or had existed or been issued to the deceased at some time in the
         past, the deceased mother would not necessarily be able to access them after the death of her
         son. The best evidence before the court in these circumstances is the testimony of the
         mother/Claimant. The type of occupation and the wages associated with that hazardous
         occupation of the deceased as testified to by the claimant, are not inconsistent with the work place
         that is Antigua and Barbuda, so as to excite the suspicion of the Court. I accept the evidence of the
         claimant, that the deceased used to give her $250.00 per week, but she pleaded only $200.00 and
         is bound by this. Again, there is no evidence to the contrary; and the indulgence displayed by her
         son in giving his needy mother14 approximately twenty five percent of his wages over a limited
         period of time, is very plausible and does not in itself excite the doubt or suspicion of the Court.



     23. I cannot accept the evidence of the value of the motorbike from a witness, the claimant, who has
         not established that she has the expertise to render such a valuation. The evidence is that the bike
         was badly damaged. The nature of the accident – head on collision – and the speed of the two
         parties, support the evidence of a badly damaged motorbike. I am not prepared to venture a scrap
         value, even a nominal value, where there is no basis15 upon which such a calculation can be made
         by this court. More fundamentally, the proof of ownership of the bike by the deceased was not

12
   If claimant was relying also on the Causes of Action (Survival) Act, this would be a head of damage claim.
13
   See paras 47.25 - 47.32, Blackstone’s Civil Practice 2003, for discourse on the ambit of ‘Judicial Notice’.
14
    His mother came to Antigua and Barbuda from Guyana before him, as I understand the evidence.
15
   Or even a knowledge base derived from life experience.

                                                                                                                 7
           established. This proof can be obtained from the Transport Division and is the type of proof where
           the circumstances of the case and its availability demand its production.



       24. The evidence in support of the funeral expenses is accepted16.



       25. As I said earlier. I accept the evidence of Ms.Teague with respect to the speed at which the
           deceased travelled also. I accept that he was riding fast. Sufficiently so, as to render him culpable
           for Contributory Negligence in the circumstances.



                                            CONTRIBUTORY NEGLIGENCE



       26. The Defendant alleges contributory negligence. It is trite law that in order to establish the defense
           of contributory negligence, the defendant must prove first that the Claimant failed to take “ordinary
           care of himself “or, in other words, such care as a reasonable man would take for his own safety,
           and second, that his failure to take care was a contributory cause of damage flowing from the
           accident.17


       27. The standard of care in contributory negligence is; what is reasonable in the circumstances, which
           in most cases, corresponds to the standard of care in Negligence. It does not depend on breach of
           duty to the defendant; however, It is dependent on foreseeability. Denning L.J said in Jones v.
           Livox Quarries Ltd. [1952] 2QB.608 at page 615:
                            “Although contributory negligence does not depend on a duty of care, it does
                            depend on foreseeability of harm to others, so contributory negligence requires the
                            foreseeability of harm to oneself. A person is guilty of contributory negligence if he
                            ought reasonably to have foreseen that, if he did not act as a reasonable, prudent
                            man, he might be hurt himself; and in his reckonings he must take into account the
                            possibility of others being careless.”



16
     The cross examination went a greater way in establishing these cost items than did the evidence in Chief.
17
     du Parcq L.J. In Lewis v Denye [1939] 1 AER 310.

                                                                                                                 8
28. The deceased ought to have foreseen that there was a distinct possibility that the
    defendant/motorist could have come through the remaining single lane, albeit the deceased‟s lane,
    thereby interfering with his right of way at the said point in time. The deceased had a duty of care
    to other road users in particular a duty of care for his     own safety. The deceased culpability,
    however, is not primary.


29. In the circumstances, I attribute 25% of the extent of loss and damage to his contributory
    negligence – the high speed with which he was travelling in the urban area.



30. The defendant having been found liable in Negligence, the Court must determine whether the
    claimant has succeeded on the next limb of her claim - the loss and damage claim - which is
    hinged substantially(although not entirely) on the provisions of the Fatal Accidents Act Cap 166 of
    the revised Laws of Antigua and Barbuda (the “Act”) and the learning thereto.



                                    THE FATAL ACCIDENTS ACT



31. Section 3 of the Fatal Accidents Act (the “Act”) sets out the type of action that can be brought
    under this Act. The instant action can properly be brought pursuant to this Act. Further, by section
    4 of the said Act, provision is made for the parent of a deceased to bring an action under the Act in
    the name of the Executor or Administrator of the person deceased. Section 5 provided that such
    action be commenced within twelve calendar months after the death of the deceased. The
    deceased died on May the 28th 2007 and the action was commenced on May 27 th 2008 by the
    deceased mother as Administratrix of the estate of the deceased. The claimant is in full compliance
    with these several requirements of the Act



32. The Act provides at section 7 that the claimant shall deliver with the statement of claim to the
    defendant or his solicitor, a statement containing the full particulars of the person for whom and on
    whose behalf such action is brought and of the nature of the claim in respect of which the damages
    are sought to be recovered. The claimant did not provide a separate statement at the time of the
    statement of claim, but delivered it at a later date, 25th of May 2009. Counsel for the defendant
    raised this point during the trial and earlier took objection to this omission in paragraph 4 of the
    Defense. The point was not further taken at Case Management or at any other time up to and
    including, as a preliminary point at the commencement of trial. No application was made by the
    defendant to amend his statement of case as a result of the late production of the separate section

                                                                                                       9
           7 statement. The Statement of Case of the Claimant identifies her name, relationship to the
           deceased, capacity in which she brings this action and exhibits the Small Estates Probate in her
           name. Section 7 of the Act is silent on what constitutes “full particulars” of the person bringing the
           action or whether it is required to be a separate document and appears procedural. No authority in
           support of the defendant‟s contention that the omission has been referred to or put before the
           court. In the absence of the defendant having made an application for a request for information
           under Rule 34 of the CPR2000 and no information there provided, or for a successful application
           for Summary Judgment on the grounds that the failure to serve the „statement‟ along with the
           statement of claim is fatal to the action; the court is satisfied that section 7 has been complied
           with.18 In any event, no prejudice to the defendant as a result of this omission (if that is what it is)
           has been established by the defendant or gleaned by the Court. There is no particular contained in
           the „statement‟ that was served late, that is at variance with the testimony in the case and no
           finding of fact or item of award in the case that is predicated on the particulars of the „statement‟.
           This omission (if that is what it is) on the part of the claimant, in my view, is not fatal to its claim.
           The Claimant however, having failed either by the said „section 7 statement‟ or by its statement of
           case generally, to indicate that she relies on the Causes of Action(Survival) Act, cannot now rely
           on it.


       33. The essential legal regime governing actions under the Fatal Accidents Act legislation is
           adequately set out in Commonwealth Caribbean Tort law, 3 rd edit., by Kodilinye19. I set it out below
           for the reader‟s convenience: The assessment of damages in respect of the death of a victim of
           negligence is governed by the fatal accidents legislation of the particular jurisdiction (see below
           Appendix 2). The purpose of such legislation is to ensure that the dependents 20 or near relations
           of the deceased receive adequate compensation for the material loss they have suffered as a
           result of the death. In Lord Wright‟s words, this is „a hard matter of pounds, shillings and pence‟. 21
           As in the assessment of loss of future earnings in personal injuries cases, the courts in fatal
           accident cases use the multiplier/multiplicand approach; but there is a difference, in that whereas in
           personal injuries claims the multiplicand is an estimate of the plaintiff‟s annual loss of earnings, in
           fatal accident claims it is an estimate of the annual value of the dependency, 22 this is, of the


18
   Even if the claimant was to fail under section 7, had Cap 78 been applicable she would be entitled to similar loss
of earnings and funeral expenses under the Causes of Action (Survival Act) Cap 78. See para. 38 and 42 below for
more on that Act.
19
   At pp 389-390.
20
   It has been held that a ‘common law wife’ was not a dependant within the Compensation for injuries Act, Ch
8:05 (Trinidad & Tobago). See Samuel v Surajah (2002 High Court, Trinidad & Tobago, No 2156of 1998)
(unreported).
21
     Davies v Powell Duffryn Associated Collieries Ltd [1942] 1 ALL ER 657, p 665.
22
     Khan v Khan [1974] LRG 287, Court of Appeal, Guyana, p 291.


                                                                                                                   10
         amount which the deceased would have spent on his family. Thus, the multiplicand in fatal accident
         claims will usually be lower than in personal injuries actions, because it is necessary to deduct a
         percentage from the net income to represent what the deceased would have spent exclusively on
         himself.23 The multiplier will also normally be lower in fatal accident claims, since the Court must
         take into account not only the age, health and future prospects of the deceased before his death,
         but also those of the dependants themselves.24



     34. In the instant case, the claimant pleaded that the deceased gave her $200.00 a week. She gave
         evidence of a figure higher than that, but is limited to that which she pleaded. The total monthly
         income of the deceased was $3,200.00 ($900.00 x 4wks) of which he gave his mother, $800.00
         ($200.00 x 4). The balance on which the deceased would have lived is $2400.00; an amount that is
         more than double the minimum wage rate in Antigua and Barbuda. The permanence of jobs in the
         construction industry at the deceased level is unusual. Clearly, the more specialized your job, the
         greater the level of permanence associated with ones employment. The claimant must prove the
         level of permanence of the job on a balance of probabilities. Making several allowances which
         include the absence of permanence of the employment and continuous pay in Antigua and
         Barbuda; I fix the Multiplicand at the lower figure of $600.00 a month or EC$7,200.00 per annum
         up to the date of trial - pre trial loss. The construction industry in Antigua and Barbuda as a result
         of the international financial predicament, has taken a blow. Construction is down significantly. At
         the same time, the immigration department has, in 2010, made very public, it‟s conservative policy
         towards the continued grant of work permits and indicated its proactive engagement with unlawful
         workers in Antigua and Barbuda. For the post trial loss, the lower dependency figure of $450.00 a
         month amounting to EC5,400.00 per annum calculated based on the deceased income as
         explained in paragraph 35 below, is a more appropriate figure.



     35. The multiplier is to take into account an indefinite future, subject to life‟s vicissitudes and
         contingencies not only of the deceased, but also of the claimant. Now, the deceased was a scaffold
         director working on the construction of tall buildings; a higher than normal risk factor I would
         suggest. Coupled with the fact that he was a motor bike rider, another high risk factor. The future
         work prospects of the deceased in Antigua are not entirely clear. Being on a work permit, at best,
         makes him a periodic worker in Antigua and Barbuda, subject to the dictates of the Immigration
         regime in Antigua and Barbuda. As an illegal worker in Antigua on the other hand – if that is what
         he was - he could only calculate being in Antigua from hour to hour. But in any event, his non-
         residence status, and it appears that is what it is, is relevant largely to the inconsistency of the level
         of his income in the future. That is to say, if he would have generated his income in Antigua or

23
   Harris v Empress Motors Ltd [1983] 3 ALL ER 561, followed in Pilgrim v Transport Board (1990) High Court,
Barbados, No 1110 of 1983 (unreported).
24
   In Mallet v McMonagle [1969] 2 ALL ER 178, Lord Diplock referred to multiplier of 16 as one rarely exceeded.

                                                                                                                  11
         elsewhere, there is no reason to suppose that he would not continue to support his mother at
         whatever level of income he earned in the future. He is a construction worker, more particularly a
         scaffold director. He was also a trained mechanic. This gentleman, wheresoever he may have
         found himself in this region, including Guyana, having regard to his skill set, would not have worked
         for less than EC$1800.00 a month. Twenty five percent of this lower end wage would be
         $450.00/month; a figure substantially less than the dependency figure based on his Antiguan
         income level.25 This calculation is of necessity somewhat speculative and somewhat reliant on
         conjecture26, but in my view is accurate and fair and does also make the point as to the effect on
         the multiplier (and multiplicand) of the vicissitudes and contingencies of the future. The award, I
         must recognize, will be a lump sum award paid in advance.



     36. Then there is the health of the claimant. She testified as to her kidney problems and efforts on her
         and her son‟s part, to have her seek medical help in the USA. How critical is this medical
         condition? She did not indicate the imminence of death. At the time of trial, almost three years after
         the death of the deceased, she was alive and looking in good stead, to the extent one can judge
         that from the external appearances. I note also that the Claimant is married and has several other
         children.



     37. The claimant has herself placed a cap on the multiplier by testifying that she anticipated that the
         deceased would have continued to support her for 2-3 more years27. Her dependency would have
         come to an end in 2-3 years after the death of her son. Having regard to the law above, along with
         all the other considerations including the extent of the vicissitudes and contingencies of the future
         along with the claimant‟s health, I fix the multiplier at 3 (36month purchase)



                                                   BEREAVEMENT



     38. The court is unable to discern what statutory basis the claim for “bereavement” relies on. As
         kodilyne points out, different jurisdictions have their own peculiar statutory remedies. The Fatal
         Accidents Act of Antigua and Barbuda provides generally for the recovery of damages from the
         defendant as if the deceased had not died and specifically provides in section 3(3) thereof that
         damages may be awarded for funeral expenses actually incurred. In the oft cited case of Davies v


25
   See calculation post trial loss in para 34 above.
26
   See dicta of Narine J. the necessary reliance on conjecture, in Maraj v Samlal(1982) High Court, Trinidad and
Tobago, No. 1058 of 1973(unreported)
27
   Her statement of Case suggested the period of 5 years.

                                                                                                                   12
         Powell etc28 lord Wright at pp 665, in relation to arriving at the measure of damages in a Fatal
         accident case said that: “There is no question here of what may be called sentimental damages,
         bereavement or pain and suffering. It is a hard matter of pounds shillings…”. The Causes of Action
         (Survival) Act cap 78 of the Revised laws of Antigua and Barbuda allows however, for the award of
         damages as if it were an ordinary action for personal injuries29. The deceased estate can bring this
         action. But, here also „bereavement‟ would not be a condition of the deceased, but a condition of
         the dependants, in an action under the Fatal Accidents Act. The Fatal Accidents Act as I noted
         above however, does not appear to allow for a claim under this head.



     39. In any event, the claimant would not have been permitted to be doubly compensated by one Act
         over the other. The claimant however, has not in its statement of case (or section section 7
         statement) expressly relied on the Causes of Action Act cap 78.30



                                                    CONCLUSION



     40. The claimant has proved the post trial dependency to the value of $5400.00 per annum for a
         purchase of three (3) years to a trial award after trial of EC$16,200.00.



     41. The claimant has proved the funeral expenses of the EC$7800.00 claimed31.



     42. The period since the 28th of May 2007 to the date of trial amounts to 2 years and 10 months.
         Applying the multiplicand of $600.00 a month this gives rise to an award of EC$20,406.00 for the
         pre- trial period.



     43. The claimant has not specifically claimed under the Causes of Action (Survival) Act. If that Act is
         applicable at all, the calculation with respect to the loss of earnings (pre and post trial) will in my
         view, on the facts of this case, be the same as I have done here under the Fatal Accidents Act. In

28
   See above at fn. 16
29
   In any event the Claimant has not referred to this statute in his statement of case and does not appear to have
relied on the provisions of this Act in this action.
30
   See Sir John Dyson SCJ in Privy Council Appeal, Charmaine Bernard v Ramesh Seebalack, No. 0033 of 2009;
[2010] UKPC 15.
31
   The claimant submitted receipts for what appear to be funeral related expenses, to a value of $8940.00. She
pleaded $7800.00 and that is what is awarded her.

                                                                                                                 13
            the factual circumstances of the case, I would make no further award under the said Causes of
            Action Act32.



     44. In my view, the claimant has proved the deceased had contributed to the support of the claimant
         during his life and the substantial prospect that the deceased would have continued to have
         contributed to the support of his mother/ claimant if he had survived.



     45. Interest is payable on the pre trial award under the Eastern Caribbean Supreme Court Act. This
         interest is discretionary and I award it at the rate of 5% per annum from the 28th May 2007 to the
         date of this Judgment33. Further, Judgment Act interest is awarded on the whole of the award.



     46. Prescribed Costs to be paid to the Claimant pursuant to the CPR2000.



     For the reasons provided above, I HEREBY ORDER as follows:




                                                  JUDGMENT ORDER




       i.      Judgment for the Claimant in the sum of:

32
   Ante, fn. 29
33
   Tate and Lyle Food and Distributor v G.L.C.[ 1981]3 All ER 716(722d-j) Forbes J put it thus: “ I feel satisfied that
in commercial cases the interest is intended to reflect the rate at which the plaintiff would have had to borrow the
money to supply the place of that which was withheld.” The award of interest on damages is part of the attempt to
achieve restituto in integrum. This court finds much logic in the learning in the UK White Book 2000 volume 1.
Where an issue arises as to the appropriate S. 27 interest rate to apply to a particular type of action including the
judgment debt/agreed damages “...it is within the discretion of the court to award interest at the judgment Act
rate, and there is nothing exceptional about using such rate as an exercise of discretion. When a court is
considering the appropriate rate of interest for a period from the date of the cause of action to the date of the
judgment, the rate payable on judgment debts is a convenient starting point” (see 7.0.15, Civil PROCEDURE, Vol. 1
2000.) The white book is here referring to our equivalent of interest pursuant to the Judgment Act, which is 5% per
annum, applicable on a judgment sum from the date of judgment to satisfaction as an appropriate starting point. I
adopt this reasoning and consider 5% as the appropriate point in the scale in this case and do so as I consider this
matter as not being wholly commercial.

                                                                                                                    14
          ii.   Pre-trial dependency loss of – EC$20,406.00;
         iii.   Post-trial dependency loss of – EC$16,200.00;
         iv.    Funeral expenses of – EC$7,800.00;
          v.    Sub-total award of – EC$44,406.00
         vi.    Sub-total less 25% Contributory Negligence: EC$44,406.00 – EC$11,101.500 = TOTAL
                FINAL JUDGMENT AWARD34 of EC$33,304.50
        vii.    Five percent (5%) Interest is awarded pursuant to section 27 of the Eastern Caribbean
                Supreme Court Act, Cap 143 on the pre-trial dependency loss of EC$16,200.00 and on the
                Funeral expenses of EC$7,800.0035;
        viii.   Further, Judgment Act interest on the whole of the FINAL Judgment Award above;
         ix.    Prescribed Costs to be paid to the claimant pursuant to the CPR2000.




……………………………………..

DAVID C HARRIS
HIGH COURT JUDGE
ANTIGUA AND BARBUDA




34
     Less interest and Costs.
35
     See para 45 (and fn. 33) above for the application of the section 27 interest.

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