Carter v Dawson

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 01 January 1998
• Court: Grand Court (Cayman Islands)
• Date: 01 January 1998

Grand Court

(Smellie, C.J.)

CARTER (as Administratrix of the Estate of D.V. CARTER, deceased)

and

D.A. DAWSON, A.B. DAWSON, F.M. DAWSON and BRITISH CAYMANIAN INSURANCE COMPANY LIMITED

R.D. Alberga, Q.C.and A.J. Taylor for the plaintiff;

C.H. Allen for the first, second and third defendants;

Ms. S.J. Collins for the fourth defendant.

Cases cited:

(1) -Cookson v. Knowles, [1979] A.C. 556; [1978] 2 All E.R. 604, dicta of Lord Diplock applied.

(2) -Harris v. Empress Motors Ltd., [1984] 1 W.L.R. 212; [1983] 3 All E.R. 561, applied.

(3) -Hunt v. Severs, [1994] 2 A.C. 350; [1994] 2 All E.R. 385, observations of Lord Bridge of Harwich followed.

(4) -Pickett v. British Rail Engr. Ltd., [1980] A.C. 136; [1979] 1 All E.R. 774, applied.

(5) -Wells v. Wells, [1997] 1 W.L.R. 652; [1997] 1 All E.R. 673; on appeal [1998] 3 W.L.R. 329; [1998] 3 All E.R. 481, dicta of Hirst, L.J. applied.

(6) -Woods v. Francis, 1986–87 CILR 207, considered.

Legislation construed:

Torts (Reform) Law (1996 Revision), s.2: The relevant terms of this section are set out at page 207, lines 10–13.

s.3: The relevant terms of this section are set out at page 207, lines 14–19.

s.4(1): The relevant terms of this sub-section are set out at page 207, lines 21–27.

(2): ‘In any such action damages may be awarded in respect of the funeral expenses of the deceased person if such expenses have been incurred by the parties for whose benefit the action is brought.’

Tort-fatal accidents-proper plaintiffs-under Torts (Reform) Law (1996 Revision), s.2 step-grandchildren not ‘dependants’ for purposes of recovery of damages under s.4

Tort-fatal accidents-damages-future loss-court to apply con-ventional method of calculation, taking into account contingencies of life and information about deceased-actuarial method based on UK not Cayman statistics and unrealistically dependent on economic certainties

Tort-fatal accidents-damages-future loss-62-year-old public works foreman and part-time taxi driver, married, healthy and planning to drive taxi full-time after retirement-7.8 year multiplier

The plaintiff brought an action to recover damages for herself and her grandchildren as dependants of her late husband, under the Torts (Reform) Law (1996 Revision) and for the benefit of her husband”s estate under the Estates Proceedings Law (1995 Revision).

The deceased was killed in a car accident as a result of the negligence of the first defendant. The second and third defendants were joined as the beneficial and registered owners of the car driven by their son, the first defendant. The deceased was a 62-year-old foreman at the Public Works Department, who also drove a taxi part-time to supplement his income and support his wife and step-grandchildren. He had a been a hard worker, enjoying good health, and there was evidence that he had

intended to continue driving the taxi full-time after his retirement from the Public Works Department.

Held, awarding damages as follows:

(1) Conventional awards would be made in respect of loss of expectation of life ($2,000) under the Estates Proceedings Law (1995 Revision) and for funeral expenses ($6,777) under the Torts (Reform) Law (1996 Revision) (page 206, lines 40–45; page 215, lines 15–17).

(2) No award would be made for the benefit of the deceased”s step-grandchildren under s.4 of the Torts (Reform) Law (1996 Revision) since they did not fall within the definition of ‘dependants’ in s.2 (page 207, lines 1–13).

(3) In assessing the value of the deceased”s future lost income for the purpose of compensating his wife, the court would employ the conventional approach without recourse to actuarial tables. The use of such tables was a flawed method of assessment since they relied on a constant rate of interest yielded by investment to produce the desired income, which did not reflect the realities of modern economic life, and were based on information and assumptions about UK residents which did not apply to the Cayman Islands. The conventional approach would take into account the contingencies of life and the availability of information about the deceased at a late stage in his life (page 207, line 40 – page 208, line 33; page 210, lines 1–10).

(4) Since the aim of the assessment was to place the plaintiff in no better or worse position than she would have enjoyed had her husband lived out his natural life, the calculation of both the multiplier and the multiplicand for future loss would take into account the likelihood that the deceased would have worked until the age of 70, when a taxi driver”s licence would no longer have been available to him. The court would deduct from his projected post-retirement earnings (which were estimated to be roughly equal to those before the age of 65) one-third in respect of his own probable living expenses. The usual lesser deduction of one-quarter for a family man did not apply, given the status of his step-grandchildren. To the resulting multiplicand of $26,737 would be applied a multiplier of 7.8 years, arrived at by deducting 40%-in deference to life”s contingencies and the deceased”s advanced age-from a starting-point multiplier of 13 years for a 62-year-old man anticipated (according to life expectancy tables) to live to age 75. Unlike the actuarial tables, this method achieved a multiplier roughly equivalent to the deceased”s remaining working life (page 211, lines 23–28; page 212, lines 11–31; page 212, line 44 – page 213, line 31).

SMELLIE, C.J.: This is the plaintiff”s application for the assessment
25	of damages due to her, as a dependant of her late husband, and due to his
estate. He was killed on January 29th, 1995 in a motor vehicle accident
when his car collided with a car being driven by the first defendant. The
second and third defendants are joined in the action as the beneficial and
registered owners respectively of the car driven by the first defendant and,
30	as such, the persons who authorized his use of the car. The fourth
defendant is joined in on its application for the purposes only of
contesting this assessment of damages.
In another cause the fourth defendant seeks declaratory relief to the
effect that the policy of insurance issued by it in respect of the car driven
35	by the first defendant was null and void and that it is not liable to
indemnify him. Subject to that issue of liability, the fourth defendant
agrees to abide by the outcome of this assessment. The same applies to
the other defendants (the first and third of whom have already had
judgment entered against them in this action).
40	The claim is brought pursuant to the Torts (Reform) Law (1996
Revision) (‘the Law’), in respect of the dependency of the plaintiff, and
under the Estates Proceedings Law, in respect of the now conventional
claim (as limited since the amending Law in 1987) for the loss of
expectation of life on behalf of the estate. That conventional award is
45	agreed at $2,000.

Claims on behalf of minor step-grandchildren of the deceased were
also pleaded but, on the view I have taken of the meaning of ss. 3 and 4 of
the Law-which creates the statutory cause of action for dependants-
could not be separately entertained as they do not come within the
5	meaning of the Law for those purposes. This is notwithstanding that they
had been living with the deceased and had been maintained by him. Mr.
Alberga, Q.C. felt unable to advance any other construction of those
sections and I think the reason is plain enough from the sections
themselves, when taken with the definition of ‘dependants’ given in s.2
10	of the Law: ‘“[D]ependant” includes spouse, child, grandchild, step-child,
parent, grandparent and step-parent and illegitimate persons shall be
regarded as legitimate for the purpose of establishing any of the above
relationships.’ Section 3 provides:
‘Whenever the death of a person is caused by a wrongful act,
15	neglect or default, and the act, neglect or default is such as would (if
death had not ensued) have entitled the party injured to maintain an
action, and recover damages in respect thereof, then and in every
such case the person who would have been liable, if death had not
ensued, shall be liable to an action for damages . . . .’
20	Section 4(1) provides:
‘Every action brought under section 3 shall be for the benefit of a
dependant or dependants of the person whose death has been so
caused and shall be brought in the name of his personal represen-
tatives; and in every such action the court may give such damages as
25	it thinks proportioned to the injury resulting from such death to the
parties respectively for whom and for whose benefit such action is
brought . . . .’ [Emphasis supplied.]
No reference is made to step-grandchildren in the definition of
dependants in s.2 of the Law. Accordingly, the maxim inclusio unius,
30	exclusio alterius applies.
As the wife of the deceased intends to continue to support the step-
grandchildren, the only practical impact of the exclusion of their claim
will be the conventional deduction of one-third of the sum calculated for
the loss of earnings-to reflect what the deceased would have spent on
35	himself-instead of one-quarter, which is the conventional deduction
where the dependants include a family unit of children: see Harris v.
Empress Motors Ltd. (2).
Methods of calculation
40	There appears, from the cases, to be a growing trend to attempt the
assessment of damages in cases of personal injury and death by reference
to actuarial computations. Tables prepared in that manner have been
published (see e.g. the Ogden Tables in 1997 Facts & Figures, Tables for
the Calculation

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