Mohammed v Grocery & Market Products Ltd et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Hassanali, J. |
| Judgment Date | 01 July 1977 |
| Neutral Citation | TT 1977 HC 42 |
| Docket Number | No. 1316 of 1975 |
| Court | High Court (Trinidad and Tobago) |
| Date | 01 July 1977 |
High Court
Hassanali, J.
No. 1316 of 1975
Mrs. V. Alcala for the plaintiff.
Mr. K. Lalla for the defendants.
Tort - Damages — Fatal Accidents.
The plaintiff is the Administratrix of the estate of Majid Mohammed her late husband (hereinafter referred to as “the deceased”). The deceased died on the 10 th August 1974, from injuries he received in a vehicular accident on the Eastern Main Road, Sangre Grande, on the 7 th August 1974, between his car PN-9057 and. a van TL-1014. On the 3 rd June 1975, on behalf of the estate of the deceased and also on behalf of herself and her four children as dependants, the plaintiff brought this action in negligence against the first and the second defendants as owner and driver respectively of TL-1014. By court's order of the 8 th March 1976, the third defendant was joined and the plaintiff's statement of claim was amended. On the 23 rd August 1976, the plaintiff took up judgment against the third defendant in default of defence.
At the trial before me Counsel agreed that the first defendant was named in error, that “Grocery and Market Products Ltd.” was not a legal entity; and it was conceded that the third defendant was the owner of TL-1014 and that “Grocery and Market Products Ltd.” was merely a business name for the defendant's grocery; and liability of the second defendant as servant of the third defendant was admitted. In the circumstances, I proceeded to assess damages as between the plaintiff and the second and third defendants.
Damages were claimed:
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(a) Under the Supreme Court of Judicature Act, No. 12 of 1962 (hereinafter referred to as “the Judicature Act”) for the benefit of the estate of the deceased; and
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(b) Under the Compensation for Injuries Ordinance, Ch. 5, No. 5 (hereinafter referred to as “the Ordinance”) for loss of expectation of life and the consequent loss to the dependants of the deceased.
At the time of his death, the deceased was 46 years and the plaintiff 38 years old. And they had four children then aged respectively as follows: Hanifa 22; Nizamuddeen 21; Jennifer 16 and Andre 2 years. The plaintiff and the deceased had been married on the 29 th May 1951, and had since lived together and with their family until the 7 th August 1974. His income was the sole source of support for the plaintiff and the children.
The deceased was driving his car PN-9057 West to East on the Eastern Main Road when, owing to the negligence of the second defendant then driving the third defendant's van TL-1014, there was a collision between the two vehicles resulting in the wreck of the plaintiff's car and in personal injuries to him as a result of which he died on the 10 th August 1974.
The evidence on the question of damages under the Ordinance ( supra) consisted substantially of that of the plaintiff herself apart from the evidence of the Hospital Records Officer which related to the hospitalization and medical treatment of the deceased from the 7 th August 1974, until the time of his death. I think the plaintiff an honest witness who strove quite disinterestedly in the course of her testimony to assist the court.
During hospitalization and while conscious the deceased must have suffered considerable pain and discomfort over the period of three days before his death. I would award the sum of $3,000.00 for pain and suffering under the first part of the claim.
Special damages have been agreed at $1,900.00; made up of $200.00 for funeral expenses and $1,650.00 for damage to the deceased's car; that is to say, its pre-accident value less $350.00 the value of the wreck.
The aggregate sum payable under the Judicature Act is thus ($3,000.00 + $1,900.00) $4,900.00; I would award this sum.
I turn now to the plaintiff's claim for damages under the Ordinance.
In Davies v. Powell Dufferyn Associated Colleries Ltd. [1942] A.C. at page 619, Lord Wright (in the oft quoted passage of his judgment) stated the method which ought ordinarily to be employed in assessing such damages. He was dealing with the English equivalent of the Ordinance when he said:
“There is no question…of what may be called sentimental damage, for bereavement, or pain and suffering. It is a hard matter of pounds shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages which ‘he deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase. That sum however has to be taxed down by having due regard to uncertainties for instance that the widow might have again married and thus ceased to be dependent and other like matters of speculation and doubt…”
It seems, however, that the modern practice is to take the various uncertain factors – all the chances and contingencies of life – into account in fixing the multiplier. The courts now apply to the basic annual dependency a multiplier which both takes into account an appropriate discount for a lump sum payment and also has due regard to uncertainties. See Kemp and Kemp on Damages, Vol. I; 4 th Edition at pp. 230, 259. I propose to guide myself accordingly. See also the local cases Hosein v. Cuffie C.A. 41/65 on 1 st June 1966; and Narine v. Deonarine (1967) 14 W.I.R. 33. Of course, whereas by English law the prospect of a (plaintiff's) widow's re-marriage is no longer taken into account, it is by our law still a factor to be considered in deciding upon a multiplier.
First I must ascertain the value of the annual dependency.
The deceased was a contractor in quarrying and transport. He was generally in good health. He played cricket regularly. About two years before his death and with his business expanding he had ceased driving a truck. He had bought a car which he used to get to and from his office and otherwise in the supervision and direction of his business. I would estimate that his active working life would have extended until he was aged about 65 or 66 years.
The deceased gave $900.00 per month to the plaintiff for groceries including market and home laundry. Further, he separately bought or paid for clothes for all members of the family including himself and paid school fees and bought books for the children when necessary. At the time of the death of the deceased, Jennifer was a student at High School and Nizamuddeen was a student at the Eastern Caribbean Farm Institute at Centeno. Hanifa was employed but unmarried and also living at home. Nevertheless the deceased supplemented her income by a monthly allowance of $50.00. Last year the plaintiff ceased supplementing Hanifa's income. The evidence suggests that the deceased would have maintained and probably improved the quantum of financial support he gave to the members of his family. He started into business eight years before his death, with one truck – which he drove himself. In 1974 he had a total of four trucks, all working satisfactorily. Until a year before his death his average monthly contribution to the home was between $650.00 and $700.00; and it was $900.00 during the last year. In all the circumstances and discounting for the personal and living expenses of the deceased I take $800.00 as the monthly contribution and arrive at an annual dependency value of $9,600.00.
I turn next to the question of a suitable multiplier – the probable remainder of the working life of the deceased being about 19 or 20 years. Notwithstanding her age and apparent good health, having regard to the surgery she has undergone, and to the number and the respective ages of her children, and the probable duration and nature of her parental responsibilities, I think the prospect of her re-marriage is fair only, if not negligible. Having due regard to the fact of an immediate lump sum payment of damages, and to all the other relevant considerations including uncertainties, I am of the opinion that twelve years' purchase is adequate and reasonable and I would apply the multiplier accordingly. The aggregate lump sum would thus be ($9,600.00 x 12) $115,200.00.
It is of course well established law in this type of case that:
“…the damages to be awarded (under the Ordinance) to the dependant of a deceased person… must take into account any pecuniary benefit accruing to the dependant in consequence of the death of the deceased. It is the net loss on balance...
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