IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
ANTIGUA AND BARBUDA
Suit No. ANUHCV 2008/0322
IN THE MATTER of a Fatal Accident Involving Steve Fraser, Deceased
IN THE MATTER of the Fatal Accident Act, Cap 166 of the Revised Edition (1992) of the Laws of Antigua
IN THE MATTER of the Law Reform Miscellaneous provisions Act: Cap 244 of the Revised Edition (1992)
of the Laws of Antigua and Barbuda
As Administratrix for the Estate of
STEVE FRASER (Deceased) Claimant
RICHARD LAM Defendant
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. 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
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.
See para 12 of the amended statement of claim at pp 22 of the Trial Bundle.
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,
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.
See paras 3 of the witness statement of Teague at pp. 97 of the Trial Bundle.
See para 4 of the witness statement of Teague at pp 97 of the trial Bundle.
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.
See evidence of Fredlyn Teague in cross examination.
See para 5 and para 6 of the witness statement of Defendant at pp 108 of the trial bundle.
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
Ibid., para 6.
The defendant was travelling east-west; in the opposite direction.
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
The pleading place the value at $12,000.00
See pp 18 of the Bundle.
The Amended Defense at para 1 thereof, expressly admits the death of the deceased. at age 30 on the 28 May
See the “Cause of Death” entry on the death certificate and see the Statement of Case and the evidence.
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
If claimant was relying also on the Causes of Action (Survival) Act, this would be a head of damage claim.
See paras 47.25 - 47.32, Blackstone’s Civil Practice 2003, for discourse on the ambit of ‘Judicial Notice’.
His mother came to Antigua and Barbuda from Guyana before him, as I understand the evidence.
Or even a knowledge base derived from life experience.
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.
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
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.  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.”
The cross examination went a greater way in establishing these cost items than did the evidence in Chief.
du Parcq L.J. In Lewis v Denye  1 AER 310.
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
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
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
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.
At pp 389-390.
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)
Davies v Powell Duffryn Associated Collieries Ltd  1 ALL ER 657, p 665.
Khan v Khan  LRG 287, Court of Appeal, Guyana, p 291.
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
Harris v Empress Motors Ltd  3 ALL ER 561, followed in Pilgrim v Transport Board (1990) High Court,
Barbados, No 1110 of 1983 (unreported).
In Mallet v McMonagle  2 ALL ER 178, Lord Diplock referred to multiplier of 16 as one rarely exceeded.
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
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)
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
See calculation post trial loss in para 34 above.
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)
Her statement of Case suggested the period of 5 years.
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
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
See above at fn. 16
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.
See Sir John Dyson SCJ in Privy Council Appeal, Charmaine Bernard v Ramesh Seebalack, No. 0033 of 2009;
 UKPC 15.
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.
the factual circumstances of the case, I would make no further award under the said Causes of
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:
i. Judgment for the Claimant in the sum of:
Ante, fn. 29
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.
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
Less interest and Costs.
See para 45 (and fn. 33) above for the application of the section 27 interest.