Claudia M. Grant (Administratrix of the Estate of Cylan R Stevens) v Francisco Samuel

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Benjamin, J.
• Judgment Date: 17 June 1998
• Neutral Citation: VG 1998 HC 11
• Docket Number: SUIT NO. 72 OF 1996,72 of 1996
• Date: 17 June 1998

IN THE HIGH COURT OF JUSTICE

BEFORE: Benjamin, J. (In Court)

SUIT NO. 72 OF 1996

BETWEEN

Claudia M. Grant (Administratrix of the Estate of Cylan R. Stevens)

Plaintiff

and

Francisco Samuel

Defendant

Mrs. J. George-Creque for Plaintiff

Mr. S. Bennett for Defendant

1 On 11th June, 1994, there was a motor-vehicular accident on the public road linking the Valley to the village of North Sound on the island of Virgin Gorda. As a consequence, young Cylan R.Stevens tragically lost his life. Having been born on 14th January, 1978, he was then an adolescent of sixteen years of age. At the time he was a fourth form student at the High School of the Bregado Flax Educational Centre of Virgin Gorda.

2 These proceedings were brought by way of a generally indorsed writ filed by the deceased's mother in her capacity as administratrix of his estate pursuant to letters of Administration granted on 24th July, 1995. The Plaintiff claims damages under the Causes of Action (Survival) Act, Cap 10 of the Revised Laws of the Virgin Islands 1991 for the benefit of the estate of the deceased. The claim was stated to be founded upon the negligence and breach of statutory duty of the defendant arising from the said accident.

3 At trial, the Plaintiff only relied upon the cause of action of negligence, as is consistent with the Statement of Claim, which, in derogation from the Indorsement of Claim, made no reference to any claim based upon breach of statutory duty. The crux of the Plaintiff's case was that the deceased was a passenger in a motor-vehicle driven by Bevern Smith on a journey from North Sound to the Valley when there was a collision with an approaching vehicle driven by the defendant which was overtaking one being driven by Adrian George in the same direction towards North Sound. In his Defence and at trial, the defendant sought to visit blame for the accident, partially or wholly, upon Bevern Smith, who was not made a party to the proceedings, though he appeared as a witness for the Plaintiff.

4 Before the close of the Plaintiff's case, Counsel for the Defendant, quite sensibly in the view of this Court, conceded liability on the part of the Defendant in negligence. Thereafter the Court was only concerned with the question of damages and entertained submissions thereon against the background of the Plaintiff's evidence.

DAMAGES

5 The evidence led relative to the issue of damages, was, at best, scant. The Plaintiff described her son as a good student. It is probable that he would have advanced to the fifth form from which he would have graduated in the following year of 1995. Thereupon he would have entered the job market at the age of seventeen years. At the time of the accident he resided with his mother as he had for his entire life. The Letters of Administration attest to the deceased having dies intestate.

6 The testimony disclosed that the deceased died almost instantaneously or the deceased died at any rate within a very brief time after the accident. This represented the totality of the evidence relevant to damages.

7 At common law, the Plaintiff would not have enjoyed a cause of action as the same would have been extinguished by the death of the deceased. This rule is embodied in the maxim action personalis moritur cum persona. This position was reversed in English law by the enactment of the Law Reform (Miscellaneous Provisions) Act, 1934, upon which the Causes of Action (Survival) Act, Cap 10 is patterned. Generally, section 2(1) of the local enactment operates to keep alive all causes of action subsisting against and vested in the deceased for the benefit of his estate. Therein lies the Plaintiff's entitlement to bring this action. The said section 2(1), which does not create any new cause of action, provides as follows:—

‘Subject to the provisions of this section, on the death of any person after the commencement of this Act 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….’

8 Although certain causes of action are excepted, the enactment encompasses damages for personal injuries, exemplary damages being excepted. Subsection (2) (c) goes on the provide that where an act or omission giving rise to the cause of action results in death (as in this case), the damages ‘shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.’

9 Counsel on both sides were ad idem that the Plaintiff is entitled to recover the funeral expenses incurred and there was no contest as to the sum claimed. Accordingly, I have no hesitation in awarding the sum of $4,360 as per the amended claim for special damages evidenced by a statement from the undertakers.

10 For several years subsequent to 1934, the Courts followed the decision in Rose v. Ford [1937] 3 All E.R. 359, wherein the House of Lords ruled that the estate of the deceased under the Law Reform (Miscellaneous Provisions) Act was entitled to recover damages for loss of expectation of life even where death was instantaneous.

11 In his speech, Lord Roche grappled with the conceptual difficulties of assessing such damages and had this to say (p. 379):—

‘I regard impaired health and vitality, not merely as a cause of pain and suffering but as a loss of a good thing in itself. Loss of expectation of life is a form in which impaired health and vitality, may express themselves as a result. In such a loss, there is a loss of temporal good, capable of evaluation in money, though the evaluation is difficult.’

12 In Benhan v. Gambling [1941] 1 All E.R. 7 the House of Lords again addressed the concept of loss of expectation of life and considered the appropriate measure of damages for loss of expectation of life of an infant boy of two and a half years of age, who suffered instantaneous death in a road accident. Damages were reduced from L1,200 to L200 and Viscount Simon, L.C. explained the approach of the House in the following dictum (at page 13):—

‘Damages which would be proper for a disabling injury may well be much greater than for deprivation of life. These considerations lead me to the conclusion that in assessing damages under this head, whether in the case of a child or an adult, very moderate figures should be chosen.’

13 There followed a conservative approach to the award of damages for loss of expectation of life in respect of persons killed instantaneously and it is useful to have regard to these conventional sums. In the case of Yorkshire Electricity Board v. Naylor [1967] 2 All E.R. 1, the Court of Appeal awarded the sum of L1,200 to make allowances for the reduction in the value of money but this award was reduced to L500 by the House of Lords.

14 The same figure of L500 was approved by the Court of Appeal in Cain v. Willock [1968] 3 All E.R. 817 in respect of a child of two and a half years. In McCann v. Shepherd [1973] 2 All E.R. 881, the Court of Appeal allowed an award of L750. Just prior to the abolition of this head of damages in England by S. 1(a) of the Administration of Justice Act, 1982, the usual award stood as L1,250 (See: Clerk & Lindsell on Torts, 15th Ed.—1982 paragraph 5–26).

15 The entitlement to damages for loss of expectation of life remains the law in the British Virgin Islands but I have not been made aware of any precedents as to an established conventional sum. The only regional authority I have managed to discover is the case of Bhagwandin v. Collins [1967] 11 WIR 335, where the Court of Appeal of Guyana considered local judicial patterns and Cummings, J.A. considered the conventional sum to...