ACTION NO. 385

_____

BEFORE the Hon. Chief Justice Abdulai Conteh.

Mr. E. Andrew Marshalleck for Plaintiffs.
Defendant absent and unrepresented.

_____

DECISION

This is an assessment of damages in respect of a road accident which occurred on the Northern Highway near the entrance to Bella Vista on 4th June 1999.

Pursuant to an action commenced by the Plaintiffs against the Defendant in respect of the said accident, judgment in default of appearance was entered against the Defendant on 11th April 2000.

The first plaintiff was at the time of the accident the owner and driver of a 1994 V80 Yamaha motorcycle which was totally destroyed in the accident.

As a result of the accident, the first Plaintiff sustained severe personal injuries which resulted in comminuted fractures of both femurs, both tibias, both wrists, of the right hip and pelvis as well as bilateral sacroiliac joint subluxation.

As a consequence of these injuries, the first plaintiff underwent two surgeries and was hospitalized for two months, after which he was confined to bed for a further ten months and had to undergo physiotherapy to learn to walk again.

A medical assessment of the first plaintiff's condition was done on 6th June 2000 by Dr. Andre Sosa, Orthopaedic Surgeon at Karl Heusner Memorial Hospital. This states as follows:

". . . the patient is capable of walking though with shuffling gait and left limp due to leg length discrepancy, a consequence of the severe comminution of the fracture of the left femur. There is an external rotation to approximately 30° (normal is 20°) of the right foot which is a consequence of the right hip fracture. Muscle wasting remains considerable in spite of good flexion and extension capacity of both lower limbs. These (sic) and two scars of 10 x 10 cm to the left inner thigh.

X-ray findings are of bilateral intramedullary rods of the femurs and consolidated fractures of the pelvis, legs and wrists."

The doctor concludes his assessment of the first plaintiff's condition by stating that:

". . . the patient will continue to face severe restriction in both his personal and laboral life. The sequelae of the accident includes sexual dysfunction due to hip and sacroiliac injuries, as well as a loss of dexterity of both hands, important to be able to do carpentry. At some point he may require additional surgery of the left wrist to correct the alignment of the hand.

Permanent residual disability is calculated at 25%."

Although I have not had the benefit of hearing the first Plaintiff testify viva voce, nor of seeing him, I do not however think that this in any way increases or diminishes the difficulties which may be associated with my task to assess the damages in this case. I should also add that the defendant did not appear before me at the assessment of damages nor was he represented. So I only had the benefit of the materials the plaintiffs' attorney put before me. These materials consisted of an Affidavit by the first plaintiff and the exhibits referred to therein, a medical report on the first Plaintiff and written submissions by counsel for the plaintiffs. I want to acknowledge the assistance counsel offered me in this regard.

In the assessment of general damages for personal injuries, it is now accepted that several considerations ought to be borne in mind in the exercise. These were, for example, in the illustrative case of Cornillac v St. Louis (1965) 7 WIR 491, summarised as follows:

(a) the nature and extent of the injuries sustained;

(b) the nature and gravity of the resulting physical disability;

(c) the pain and suffering which had to be endured;

(d) the loss of amenities suffered, and

(e) the extent to which consequentially the plaintiff's pecuniaryprospects have been materially affected.

In this case, the learned Chief Justice in his judgment stated as follows at p. 494:

". . . It is not the practice to quantify the damages separately under each head or at any rate to disclose the build-up of the global award. But . . . it is important for making a right assessment that the several heads of damage should be kept firmly in mind and that there should be a conscious even if undisclosed quantification under each of them so as thereby to arrive at an appropriate final figure. I must not, however, be understood to mean that at the last count there should be a simple addition to a number of money sums. Any such arithmetical exercise would ignore the realities that are so often encountered. Frequently the unit factors overlap so that the aggregate of the several amounts which might be allowable in respect of each would be an over assessment of the total damage taking them all together . . ."

This position found support in the latter case of Fletcher v Autocar and Transporters Ltd. (1968) 1 All E.R. 726; (1968) 2 W.L.R. 743, where Lord Denning M.R. stated the position thus at pp. 723-733:

". . . (it would be) . . . wrong to take each of the items separately and then just add them up at the end. The items are not separate heads of compensation. They are only aids to arriving at a fair and reasonable compensation . . . There is . . . a considerable risk of error in just adding up the items. It is the risk of overlapping."

Indeed, in his submission, counsel for the first Plaintiff correctly stated that it was not suggested that I should simply aggregate the awards for the various injuries suffered in order to assess the amount due to the plaintiff. He urged that I must have regard to the overall effect of the injuries when taken as a whole.

However, a practical difficulty I confronted in arriving at an assessment in this case is the fact that all the authorities provided by counsel for the first plaintiff are from United Kingdom cases although counsel again correctly urged me to bear in mind that "standard of living is higher in the UK than in Belize."

In this regard, I can only adapt with approbation, the dictum of the learned Chief Justice of Trinidad and Tobago in the case of Aziz Ahamad Ltd. v Raghuntan Raghubar (1967) 12 W.I.R. 352 where he stated at p. 356:

"In a jurisdiction such as ours in which assessments of general damages are made by judges without the aid of juries it has become accepted principle that the courts should strive as high a measure of uniformity of award as is reasonably practicable . . . "

and he continued at p. 357:

"Such uniformity as may be practicable should conform with current trends here and not elsewhere. As Lord Morris of Borthy-Gest, speaking for the Privy Council, said in Singh v Toong Fong Omnibus Co. Ltd. (1964) 3 All E.R. 925 at p. 927: "To the extent to which regard should be had to the range of awards in other cases which are comparable such cases as a rule be those which have been determined in the same jurisdiction or in neighbouring locality where similar social economic and industrial conditions exist." We ought consciously to set about establishing and following trends of our own. But until we do we should pay heed to and take such guidance as we can from awards elsewhere, making such adjustments as may be appropriate having regard to our own prevailing condition . . .

In looking at past cases it is essential to remember that they serve no more than as a guide."

In the light of these principles, I shall now consider a single award in respect of the first four heads of general damages while bearing everyone of them firmly in mind. That is to say, a single award for all the personal injuries sustained by the first plaintiff. I bear also in mind in this process the awards made in the cases which counsel referred me to and after making the necessary adjustments, I award the sum of $275,000 (Two Hundred and Seventy-Four Thousand dollars) as general damages to the first Plaintiff, plus interest at the rate of 3% from the date of the accident to the date of this assessment.

I now turn to consider the special damage claimed by the first plaintiff. Under this head the plaintiff claim the sum of $3,000 for the total loss of his motorcycle; the sum of $4,359.08 for medical expenses including the costs of ambulance (see paragraphs 15 and 16 of first Plaintiff's Affidavit dated 26 June 2000), and the sum of $24,000 representing loss of earnings for one year.

It is observed that the plaintiff paid $3,600 for the V80 Yamaha motorcycle in 1994, and is claiming $3,000 after using it for four years. I think, making allowance for depreciation over the period, the sum of $2,500 would be a fair one to award in the circumstances in respect of the said motorcycle.

I therefore award the sum of $30,859.08 (Thirty Thousand Eight Hundred and Fifty-Nine dollars and eight cents) as special damage to the first plaintiff plus interest thereon at 3% from the date of the accident.

I now turn to deal with the claim for damages by the second to seventh Plaintiffs. The second, third, fourth, fifth, sixth and seventh Plaintiffs in this action are the minor dependent children of Tomas Sanchez who at the time of the accident was riding as a passenger on the said motorcycle of the first plaintiff. Tomas Sanchez sustained severe personal injuries as a result of the accident and died on the spot. As a result, the second to the seventh plaintiffs as his dependents, sued by this action through their next friend, Jose Augustine Sanchez, for loss and damage pursuant to sections 9, 10 and 11 of the Laws of Torts Act - Chapter 134 of the Laws of Belize, Revised Edition 1980-1990. The necessary particulars pursuant to section 13 of the Act were filed with the Statement of Claim in this action.

I should point out here that although section 12 of this Act talks of assessing damages in such a case, such as the one at hand, that is, damages for the wrongful death of another for the benefit of the wife, husband, parent or child of that other, it does not direct or specify the quantum of such damages, it only provides that ". . .such damages proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought may be awarded . . ."

In other words, the Act does not direct or specify the measure or quantum of damages that may be awarded in an action for causing death. One is therefore left to seek guidance from general principles and precedents applicable in this area of the law. That is to say, the actual method for computing the damages for the wrongful death of another is to be found in case law. The object of the exercise is to make an award for the loss of the pecuniary benefit arising from the relationship between the claimants and the deceased which would be derived from the continuance of the life. In other words, the value of the dependency.

In this exercise, the Courts have evolved a particular method for assessing the value of the dependency, or the amount of pecuniary benefit that the dependant could reasonably expect to have received from the deceased in the future. This amount is calculated by taking the present annual figure of the dependency, (the multiplicand), and multiply it by a figure which is based upon the number of years that the dependency might reasonably be expected to last (the multiplier). However, because a lump sum is being awarded now instead of periodic payments, this latter figure, the multiplier, is usually discounted to take account of this fact - McGregor on Damages sixteenth edition, 1997, p. 1145.

This formula has been used here in Belize by the Courts over the years, see for example, Marilyn Perera v The Attorney General - Action No. 217 of 1992 (unreported) and Maria Castaneda et al v Douglas Sutherland and Cisco Construction Ltd 2 Belize Law Reports, p. 92.

From the affidavit evidence submitted for the assessment of damages in this action, the following particulars are given for the second to seventh Plaintiffs, in particular, paragraph 3 of the affidavit of Jose Damien Sanchez, the first Plaintiff, dated 26 June 2000:

"3. The other Plaintiffs herein are the children of Tomas Sanchez at the time of his death. The dates of birth of the children are as follows:

It was averred in the Statement of Claim that Tomas Sanchez was at the time of his death 45 years old and was self-employed as a building contractor earning an average of $24,000 per annum, and that he was the primary means of support. It was also deponed in the affidavit of the first plaintiff (who was a brother of Tomas Sanchez) that he took care of all his children financially and that more often than not he kept very little money for himself after taking care of his children.

Given the ages of the second to seventh plaintiffs and the time within which they would respectively reach majority, I have, for the purposes of determining the value of their dependency on Tomas Sanchez, their deceased father, used the average of 6 (six) which I discount to 5 (five), as a lump sum is to be awarded to them for their loss; and also using the sum of $18,000 (Eighteen Thousand dollars) as the annual value of their dependency on the deceased father, I arrive at the global sum of $90,000 (Ninety Thousand dollars), that is, a multiplicand of $18,000 by a multiplier of 6.

I therefore award the sum of $90,000 to the second to seventh plaintiffs, plus 6% as interest, making a total of $95,400 (Ninety Five Thousand Four Hundred dollars).

I therefore award the sum of $95,400 to the second to the seventh plaintiffs in the following proportions:

It is also stated in paragraph 17 of Jose Sanchez's affidavit that the sum of $1,235 (One Thousand Two Hundred and Thirty Five dollars) was spent on the funeral expenses of Tomas Sanchez, which sum was lent to his dependants from monies borrowed from friends by their uncle Jose Augustine their next friend in this action. Photocopies of receipts evidencing this expenditure are annexed to the Affidavit.

I accordingly, also award the sum of $1,235 (One Thousand Two Hundred and Thirty Five dollars) pursuant to section 16(2) of the Torts Act - Chapter 134 of 1990 Revised Edition of The Laws of Belize.

I award the costs of this action in the sum of $3,500.

A. O. CONTEH
Chief Justice

Dated: October, 2000.