Woods Furniture and Design Ltd v James

• Jurisdiction: Cayman Islands
• Judge: (Goldring, P., Field and Beatson, JJ.A.)
• Judgment Date: 30 July 2020
• Court: Court of Appeal (Cayman Islands)

WOODS FURNITURE AND DESIGN LIMITED

and

JAMES

(Goldring, P., Field and Beatson, JJ.A.)

Court of Appeal (Cayman Islands)

Tort — personal injuries — damages — conversion rate — where damages assessed in sterling but to be awarded in CI dollars, conversion rate is rate at date of judgment — where material deterioration in exchange rate since claim issued, court may grant uplift

Civil Procedure — costs — indemnity basis — plaintiff in personal injuries claim entitled to indemnity costs against employer who unreasonably refused to admit liability for long period and made hopeless contributory negligence claim

Held, dismissing the appeal:

(1) It would have been preferable for the judge to have invited short written submissions from both sides and obtained information as to whether the issue of damages could be quickly decided by another judge before reaching his decision to proceed to give judgment notwithstanding his accidental knowledge of the payment into court by the appellant. Such a course would not have involved undue expense or led to any significant delay and should be the general practice in cases of this sort. However, the judge’s failure to adopt this course was not sufficient to invalidate the exercise of his discretion. A new trial before another judge could have been very prejudicial to the respondent given his impecuniosity and the long delay between the occurrence of the accident and the trial. Further, the judge’s consideration of the issues in the case was well advanced and considerable weight should be given to the view of the very experienced judge that he could put the payment-in out of his mind when finally deciding the issues before him. The fair-minded observer would not, in the circumstances, think that it would be unfair for the judge to proceed as he did. The court therefore concluded that the judge’s decision to finishdetermining the case was not a good reason for overturning his judgment and ordering a new trial (para. 9).

(2) The appellant’s appeal against the dismissal of its contributory negligence case would be dismissed. An appellate court should be very cautious in differing from a judge’s evaluation of a legal standard such as negligence which involved no question of principle but was simply a matter of degree. It was clearly within the general ambit within which reasonable disagreement was possible for the judge to hold on the evidence that the respondent was not contributorily negligent because the other employee should not, unexpectedly and without warning, have lowered the platform in circumstances in which the respondent was entitled to assume that the other employee clearly understood that the respondent was placing his arm under the platform to point out the wire (paras. 21–24).

(3) In respect of the quantum of damages, the court did not interfere with the award for pain and suffering and loss of amenity. The court would only interfere with an award of damages by a trial judge if he or she had misapplied principles of law and/or misunderstood or misapplied the evidence, resulting in a global award that was exceptionally high or low (para. 35).

(4) The judge’s adoption of the conversion rate of 1.35 could not stand. The reason he gave for adopting the conversion rate used in a previous case, namely that legal policy generally favoured using fixed conversion rates, reviewed from time to time, to promote settlement through increased certainty, was not legally sound. It was not appropriate to depart from the established judicial practice of adopting the date of judgment as the conversion date. If the judge, post-trial, was concerned that the respondent would be unfairly prejudiced by the deterioration in the conversion rate if the judgment date was to be the conversion date, he should have invited short written submissions from the parties as to whether it was open to the court to compensate the respondent for the loss in value of sterling since the commencement of the proceedings. Had he done so, there was a reasonable chance that he would have been persuaded to grant an uplift in the damages due to the respondent. The need to fix a conversion date in personal injury claims in this jurisdiction arose from (a) the understandable reliance by the courts on the JSB Guidelines and other sources in assessing the quantum of general damages; and (b) the practice that these claims were brought in Cayman dollars with the courts giving judgment in that currency. The adoption of the date of judgment as the conversion date in personal injury actions had long been the practice of the Cayman courts and should continue to be so unless and until provision was made by legislation or within the GCR for a specified conversion rate subject to periodic review, for three principal reasons. First, the date of the tort or the date of payment were not better options. Secondly, converting at the date of judgment need not inevitably mean that the parties were at risk of an unjust outcome due to material changes in the exchange rate because, pursuant to its duty to achieve restitutio in integrum in fixing the level ofcompensation, the court could adjust an award if it could be plainly shown that it was necessary to do so to avoid injustice. Thirdly, the practice was long standing and to change it abruptly when there was no better option available risked injustice in cases that were currently pending before the courts. According to the XE currency converter, the sterling/Cayman dollar rate on the date the claim was issued was 1.2936 and on the date of judgment it was 1.009. There had been a material deterioration in the exchange rate since the respondent’s claim was issued which could potentially have a significant negative impact on the damages to which he was entitled. In the circumstances, in order to give full and proper effect to the principle of restitutio in integrum, it was only fair and reasonable to award the respondent an uplift on what would otherwise be his recovery for pain and suffering if the conversion rate was that prevailing at the date of judgment. The fair and just way to compensate the respondent was to adopt the average rate for the years 2010–2015, i.e. 1.313. The slow progress of the action was due in part to the respondent’s dilatoriness but that did not disentitle him to the proposed uplift. To hold otherwise would be to give the appellant an unwarranted benefit and would be inconsistent with the finding that if the appellant had admitted liability in June 2010, as it should have done, the claim would almost certainly have been resolved by the end of 2012 at the latest. The respondent was entitled to general damages for pain and suffering in the sum of CI$26,260, which when added to the damages awarded of CI$8,687.10 for (agreed) medical expenses, CI$1,012.50 for travel expenses and CI$1,850 for loss of earnings, produced a total of CI$37,809.60 (paras. 56–62).

(5) The court accepted the appellant’s submission that in awarding indemnity costs the judge erred in law in pursuing a policy of enforcing the overriding objective of the Grand Court Rules rather than confining himself to the requirements of GCR O.62, r.4(11). When deciding whether costs should be awarded on the indemnity basis, the court should have regard exclusively to whether the requirements of O.62, r.4(11) had been met. It followed that the judge’s exercise of discretion in awarding indemnity costs must be set aside, leaving the present court to determine for itself whether the application for indemnity costs should be upheld (paras. 75–76).

(6) The respondent was entitled to his costs of establishing liability on the indemnity basis from June 23rd, 2010 to August 29th, 2018. The appellant’s defence that no duty of care was owed to the respondent, its employee, and that it was not liable to any extent for his injuries was hopeless from the outset in light of the content of the incident report and the absence of a witness statement signed by the other employee containing an account of the incident that had the respondent putting his arm under the raised load when it would have been obvious that the other employee was going to lower the load without warning. It was unreasonable to an even higher degree, entitling the respondent to indemnity costs, for the appellant to persist in its denial of all liability for the accident from June 23rd, 2010to August 2018 whilst rebuffing the proposal that liability be admitted or an interim payment be agreed in the knowledge that the respondent was impecunious and dependent on compensation to be able to undergo the necessary second operation. If the appellant had admitted liability in June 2010, as it should have done, instead of waiting until August 29th, 2018 to do so, the respondent would have obtained an interim payment to finance the second operation and his claim overall would have been resolved almost certainly by the end of 2012 at the latest. The respondent was also entitled to his costs of resisting the appellant’s contributory negligence case on the indemnity basis. The contributory negligence case at trial was hopeless. No witness was called by the appellant to support its pleaded contributory negligence case and the incident report, which was signed by an official of the appellant, was extremely strong evidence against it. The court had no hesitation in finding that the pursuit of the contributory negligence case was unreasonable to a high degree (paras. 82–85).

Cases cited:

(1)A (A Child) v. South Tyneside MBC, Bishop Auckland County Ct., March 12th, 2002, unreported, considered.

(2)AX v. A, 2016 (2) CILR 150, considered.

(3)Ahmad Hamad Algosaibi & Bros. Co. v. Saad Invs. Co. Ltd., 2012 (2) CILR 1, dicta of Smellie, C.J. followed.

(4)Allen v. Ebanks, 1998 CILR 190, referred to.

(5)Archer v. UBS (Cayman Islands) Ltd., 2009 CILR 531, referred to.

(6)Assicurazioni Generali SpA v. Arab Ins. Group, [2002] EWCA Civ 1642; [2003] 1 W.L.R. 577; [2003] 1 All E.R...