Pottinger v Ebanks

• Jurisdiction: Cayman Islands
• Judge: (Summerfield, C.J.)
• Judgment Date: 27 April 1983
• Date: 27 April 1983
• Court: Grand Court (Cayman Islands)

Grand Court

(Summerfield, C.J.)

POTTINGER

and

EBANKS

R.D. Alberga, Q.C. and P. Boni for the plaintiff;

Miss R. Irving for the defendant.

Cases cited:

(1) Birkett v. Hayes, [1982] 1 W.L.R. 816; [1982] 2 All E.R. 710, not applied.

(2) Jefford v. Gee, [1970] 2 Q.B. 130; [1970] 1 All E.R. 1202, not applied.

Legislation construed:

Judicature Law (Revised) (Law 11 of 1975, revised 1976), s.62: The relevant terms of this section are set out at page 345, lines 21–39.

Tort-personal injuries-damages-interest-Judicature Law, s.62 only Cayman provision enabling award of interest on damages-restricted to interest on fixed sum awards and doubtful whether applicable to awards of general damages

The plaintiff brought an action against the defendant to recover damages for personal injuries caused by the defendant”s negligent driving.

The defendant was charged with and convicted of careless driving in connection with the incident allegedly causing the personal injuries. It was conceded that such a conviction was prima facie evidence of negligence and the court duly gave judgment for the plaintiff on the issue of liability and awarded damages of $23,476.

On the issue of damages, the plaintiff submitted that an award of interest should be made following the common law principles on the application of s.3 of the English Law Reform (Miscellaneous Provisions) Act 1934 as amended by s.22 of the U.K. Administration of Justice Act 1969 which had been applied on previous occasions. In relation to general damages, interest should be awarded from the date of the writ to the date of the trial at the average rate allowed over this period on money in court placed in a short-term investment account. Interest on special damages should be awarded from the date of the accident to the date of the trial at half the rate of interest allowed in respect of general damages. The defendant denied that the English rules could be applied because the only Cayman legislation governing an award of interest was s.62 of the Judicature Law, which referred only to fixed sum

awards and which, by sub-s. (2), gave the court power to award additional compound interest where either the indebted party had no serious defence to the action or he was guilty of using delaying tactics in order to postpone payment.

Held, on the issue of damages:

The common law principles were inapplicable in the Cayman Islands as there was no provision in local legislation equivalent to that in the English legislation enabling the court to order interest on an award of general damages. The only provision in the Cayman Islands empowering an award of interest in civil suits was s.62 of the Judicature Law, which could not apply in the present case as there was no suggestion that either of the conditions contained in sub-s. (2) were satisfied, nor was it clear that the power to order interest extended to interest on awards of general damages (page 345, line 8 – page 346, line 5).

SUMMERFIELD, C.J.: In this running-down case the import-
ant issue of fact is whether the plaintiff was on the shoulder of the
road, as she claimed, or had stepped on to the asphalt road, as
claimed by the defendant, when she was struck by the defendant”s
30	Dodge car. On that issue I have no difficulty in finding for the
plaintiff. She made a far more favourable impression on me as a
witness of truth-than did the defendant. The defendant appeared
to become taut and excitable and, on occasions, evasive, when
pressed on this vital issue. Furthermore, as will be discussed later,
35	the plaintiffs version was consonant with the probabilities
whereas the defendant”s version appeared unlikely. Wherever
there is a conflict on a material matter, I prefer her evidence.
Walkers Road is a main arterial road between Hospital Road
and South Sound Road. At the relevant spot (where the plaintiff
40	was struck) it is 23 ft. 7 in. wide and on the left-hand-side (as one
faces South Sound Road: all bearings given will be on the same

basis, i.e. facing in this direction) is a 3 ft. 2 in. shoulder. The
road is asphalt and the shoulder is grass, operating as a sidewalk.
Where the asphalt and the shoulder meet, the asphalt is slightly
higher than the grass shoulder. The relevant spot was about 150
5	yds. from a

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