Mr. Oswald Twist for the Plaintiff
Mr. Bernard Pitts for the First Defendant
Ms. Lois Young for the Second Defendant

Traffic accident involving death of a young girl - Contributory negligence by deceased - Assessment of appropriate damages - Damages for funeral expenses - Whether they include damages for wake expenses - Damages for loss of expectation of life - Whether such damages are payable for the death of young unemployed deceased persons - Damages for loss to estate - Applicable principles in assessment of damages for loss to estate.

J U D G M E N T

On the 7th of August, 1998, the First Defendant, Bernard Aguet was driving a pickup truck belonging to his employers, Belize Telecommunications Limited, on the Western Highway towards Belize City. It was a clear day and the road was dry. At about 4:15 p.m. he arrived in Camalote Village. The road there is very straight and declines slightly. Mr. Aguet was driving at least 60 mph. He knew the speed limit was 25 mph in the village. He saw in front of him a young girl riding a bicycle in the same direction as him on the extreme right of the highway. That was Nadine Casey who was 15 years old and the daughter of Lincoln Casey, the Plaintiff. She was carrying a little boy who was sitting on the cross bar of the bicycle. Before Mr. Aguet passed them, he saw them start to move out to the left. He braked hard but he was unable to avoid a collision with the back of the bicycle, which was, according to a plan prepared by police Corporal Errol Thomas, which I accept to be accurate, about 8 feet, 9 inches from the right hand edge of the road at the moment of impact.

Unfortunately, Nadine was killed in the accident. Her father brings these proceedings against Bernard Aguet and B.T.L. I must decide whether the accident was caused by Mr. Aguet's negligence, whether and to what extent it was caused by Nadine's carelessness and what damages Mr. Casey is entitled to.

Mr. Aguet was an impressive witness and it was clear that he did all he could to help Nadine after the accident. The fact is, however, that he was driving through this village at a speed well over double the legal limit. He saw a child cyclist on the right and he did not stop or slow down until he saw her start to move away from the right hand edge of the highway. It must be the case that had he been going through the village more slowly the accident would not have happened or at least Nadine would not have been killed. Ms. Young who appeared for the second Defendant make the point that people often drive at 60 mph down the Western Highway which is a major artery and that they drive through the many villages on the highway at this speed. I accept that that is the case but I cannot accept that they are not liable for negligence if such speed causes an accident like this. It is well known that there might be children on bicycles on the highway particularly in the villages and children tend to behave erratically when they are on bicycles. The purpose of the 25 mph speed limit is precisely to protect them. I therefore find Mr. Aguet and his employers liable for this accident.

It is clear from the position of the impact and Mr. Aguet's testimony that Nadine moved towards the center of the road before he hit her and I reject the evidence of Mr. Tillett to the contrary. This manoevre, whether deliberate or accidental, was unfortunately a careless one which caused the accident and she must bear some responsibility for it. I assess her responsibility bearing in mind her age at 40 percent.

I turn now to damages. First, Mr. Casey gave evidence that he had incurred expenses of $5,159.00 in connection with funeral which his daughter deserved. For some reason which I do not understand, the Defendants who were represented separately by Mr. Pitts and Ms. Young, obliged him to prove each item of expenditure and laboriously provide to the court each receipt. I have no doubt that Mr. Casey incurred the expenditures he claimed. Under Section 10(2) of the Torts Act, I can award him the funeral expenses that he incurred as damages in this action. Ms. Young say that the $1,118.00 spent by Mr. Casey on the wake is not recoverable because it is not funeral expenses and relies on a statement to this effect on an English textbook, Kemp and Mantle, at page 79. There is no authority cited for that proposition in the textbook and its seems to me even if it would be valid in England it should not apply in Belize where as I understand it wakes are a regular part of funeral arrangements.

Second, Mr. Twist claims a sum to represent Nadine's loss of expectation of life. This claim is strictly speaking one that should be brought, not under the Tort's Act, but by the Estate of Nadine under the Administration of Estates Act. Mr. Casey's Writ and Statement of Claim did not expressly claim anything on behalf of the estate though his statement of claim makes reference to a claim for loss of expectation of life. Ms. Young, during her final speech for both defendants very fairly conceded that the presence of a claim on behalf of the estate would not have caused the conduct of the defence to be any different. In the circumstances, I invited Mr. Twist to indicate whether Mr. Casey also wished to bring a claim on behalf of his daughter's estate and he said that he did. Given that I am quite sure that her estate has no other assets or liabilities and her parents are bound to inherit anything under it, I see no difficulty with proceeding in this way without any further formality and I intend to do so. It is conceded, I think, that a claim for loss of expectation of life is allowable in principle in circumstances like these. Ms. Young says there is a conventional amount of $2,500.00. Mr. Twist asked for $3,000. Ms. Young's submission was based on the Perrera case, (217/92) which was decided over five years ago. I think it would be fair to award more than $2,500.00 in the year 2000 given the inflation, albeit modest, that we have all suffered since 1995. I award $3,000.00 under this head.

Third, Mr. Twist claims for loss of earnings during the lost years. Such claims can be for loss of dependency and/or for loss to the estate. The claim for loss of dependency is in my view, far too speculative for me even to consider. Nadine was 15 when she died and had at least two years left in school. She was the fourth of five children. Even assuming she had started work at 18, there was no basis for saying that she would then or at any later date have supported her father. She might have married, gone away or lived on her own. In any event, he would probably have continued to work and supported himself. This claim fails.

The claim for loss to the estate would be for lost earnings which she would have received and not had to spend on her own support or that of any dependents during her lost years. In this connection, Ms. Young referred me to part of the speech of Lord Scarman in the Gamell case which I quote:

"There is no room for a conventional award in a case of alleged loss of earnings of the loss years. The loss is pecuniary. As such, it must be shown on the facts found to be at least capable of being estimated. If such facts are established to enable the court to avert the fancies of speculation, even though not enabling it to reach mathematical certainty, the Court must make the best estimate it can. In civil litigation, it is the balance of probabilities which matters. In the case of a young child the loss years of earning capacity would ordinarily be so distant, that mere speculation, no estimate being possible, no award not even a conventional award should ordinarily be made. Even so, there will be exceptions. A child television star cut short in her prime at the age of five might have a claim. It would depend on the evidence. A teenage boy or girl, however, as in Gamell may well be able to show actual employment or real prospects in either of which situations there will be an assessable claim. In the case of a young man already in employment as in the case of young Mr. Furness, one would expect to find evidence on which a fair estimate of loss can be made. A man well established in life like Mr. Pickett will have no difficulty but in all cases it is a matter of evidence and a reasonable estimate based on it."

As I have said, Nadine still had at least two years of school. She was doing well but she was an average student. She was studying hard, and she helped her mother. However, I have no real idea what she would have done when she left school. Mr. Casey told me she had expressed the desire to be a doctor: that desire if carried through would have involved a lot further education and may never have worked out. For all I know she may have got married very young and started a family and not worked at all. In the circumstances I regret to say that this head of claim is also simply too speculative and must fail.

Mr. Casey's damages on a full liability basis are therefore $5,159.00 plus $3,000.00, that is $8,159.00. They must be reduced by 40 percent for Nadine's contributory negligence leaving $4,895.00. There will be judgment for that sum.
Mr. Casey should understand that the amounts of awards for the loss of young lives are based on well established legal principles which often give very modest awards. He should not think that I, or the Court, or the law regard the value of Nadine's life as in any way less than anyone else's. The reason the award is so low is simply that her death has not resulted in any substantial financial loss to him or anyone else. I wish to express my sympathy to him and his wife for the loss of their daughter and my admiration for the dignified way that he has dealt with that loss and these legal proceedings. So there will be judgment as I have said for $4,895.00 and I wish to thank all Counsels for their helpful contributions.

There will be costs to the Plaintiff to be taxed if not agreed.

------------- O O -----------