Woods v Francis

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Georges and Henry, JJ.A.)
• Judgment Date: 01 December 1986
• Court: Court of Appeal (Cayman Islands)
• Date: 01 December 1986

Court of Appeal

(Zacca, P., Georges and Henry, JJ.A.)

A. WOODS (as Administrator of the Estate of N. E. WOODS, Deceased)

and

FRANCIS

P. Lamontagne, Q.C. and T. Shea for the appellant;

N. Hill, Q.C. and W. Rodger for the respondent.

Cases cited:

(1) Benham v. Gambling, [1941] A.C. 157; [1941] 1 All E.R. 7.

(2) Charran v. Savitri SinghUNK(1981), 30 W.I.R. 148.

(3) Clark v. RyanUNK(1960), 103 C.L.R. 486.

(4) de Lasala v. de Lasala, [1980] A.C. 546; [1979] 2 All E.R. 1146, dictum of Lord Diplock applied.

(5) Fitch v. Hyde-CatesUNK(1982), 56 A.L.J.R. 270.

(6) Froom v. Butcher, [1976] Q.B. 286; [1975] 3 All E.R. 520.

(7) Gammell v. Wilson, [1982] A.C. 27; [1981] 1 All E.R. 578, followed.

(8) Harris v. Empress Motors Ltd., [1984] 1 W.L.R. 212; [1983] 3 All E.R. 561, dictum of O”Connor, L.J. applied.

(9) Pickett v. British Rail Engr. Ltd., [1980] A.C. 136; [1979] 1 All E.R. 774; [1979] 1 Lloyd”s Rep. 519, followed.

(10) R. v. Murphy, [1980] Q.B. 434, [1980] 2 All E.R. 325; (1980), 71 Cr.App.R. 33.

(11) R. v. Oakley, [1979] RTR 417.

(12) Skeleton v. CollinsUNK(1966), 115 C.L.R. 94; 39 A.L.J.R. 480; [1966] Argus L.R. 449.

(13) Stupple v. Royal Ins. Co. Ltd., [1970] 3 All E.R. 230.

(14) Taylor v. Taylor, [1970] 1 W.L.R. 1148; [1970] 2 All E.R. 609.

(15) Wauchope v. Mordecai, [1970] 1 W.L.R. 317; [1970] 1 All E.R. 417.

Legislation construed:

Estates Proceedings Law, 1974 (Law 3 of 1974), s.2: The relevant terms of this section are set out at page 240, lines 34–38.

s.4: The relevant terms of this section are set out at page 241, line 39 – page 242, line 5.

Evidence Law, 1978 (Law 13 of 1978), s.32(1): The relevant terms of this sub-section are set out at page 220, line 34 – page 221, line 5.

s.37: The relevant terms of this section are set out at page 221, lines 21–29 and lines 31–35.

Evidence-previous proceedings-weight in subsequent proceedings-court to evaluate evidence on own merits and not rely on conviction in previous proceedings as having probative value-presumption of liability in subsequent proceedings raised under Evidence Law, 1978, s.37(2) to be considered only after all evidence heard-rebuttable by defence on balance of probabilities

Evidence-witnesses-expert witnesses-qualifications-evidence on ‘accident reconstruction’ admissible from witness with no academic qualifications but expertise acquired by practical experience

Tort-damages-lost years-multiplier/multiplicand formula-multiplicand balance of deceased”s earnings after deducting living expenses but with no deduction for expenditure in support of deceased”s dependants-multiplier based on age, life expectancy, length of working life, earning potential, any known factors likely to affect life expectancy and any unforeseen vicissitudes of life-‘loss of expectation of life’ damages within ‘lost years’ concept and justifies no additional award

The respondent brought an action against the appellant in the Grand Court to recover damages for the benefit of a deceased”s estate, under the Estates Proceedings Law, 1974 and for the benefit of the deceased”s mother under Part II of the Law of Torts Reform Law (Revised).

The deceased was killed when his car collided with one driven by the respondent. At the time of his death the deceased was 45 years old, unmarried and employed at an annual salary of $75,000. He had savings of $190,000 and his total expenditure during the last year of his life had been $35,000, of which $15,000 had been spent in support of his mother, who was 86 years old and in poor health.

The respondent was convicted of causing the death of the deceased by dangerous driving. The appellant, as administrator of the deceased”s estate, brought proceedings under the Estates Proceedings Law, 1974 to recover, for the benefit of the estate, damages for the ‘lost years,’ for loss of expectation of life and special damages; and under Part II of the Law of Torts Reform Law (Revised), for the benefit of the deceased”s mother, his only dependant, damages for loss of dependency. It was conceded that in the circumstances of the case, the claim for loss of dependency was subsumed in the claim for ‘lost years.’

To prove liability the appellant relied upon the defendant”s conviction for causing the death by dangerous driving, since by the Evidence Law, 1978, s.37(2) if a person is proved to have been convicted of an offence it is to be presumed in subsequent civil proceedings that he committed it unless the contrary is proved. The appellant relied on certified copies of the evidence of witnesses called on behalf of the Crown at the trial of the defendant, introducing this evidence under s.30 or s.32 of the Evidence Law, 1978. The respondent inter alia adduced the evidence of a witness who claimed to be an expert in ‘accident reconstruction’ to establish that he was not driving dangerously at the time of the accident. This witness had no academic qualifications in physics or engineering and described his expertise as having been acquired by practical experience. He had given evidence on accident reconstruction in trials in the United States.

The Grand Court (Summerfield, C.J.) gave judgment for the appellant on the grounds that (a) the respondent had failed on the balance of probabilities to rebut the presumption raised by his conviction under s.37(2), there was an abundance of evidence at the criminal trial which justified the jury”s rejection of the respondent”s version of events, the submissions of the expert witness were found to be very inaccurate, and the appellant had therefore succeeded in establishing liability; (b) the respondent had also failed to establish any contributory negligence by the deceased which would justify a reduction in the amount of damages awarded either in respect of the cause of the accident or of the deceased”s failure to wear a seat belt; (c) special damages had been agreed at $10,340 and the award for loss of expectation of life was conventionally set at $2,000; (d) in calculating for the benefit of the deceased”s estate the damages for the ‘lost years’ resulting from the deceased”s early death, the court declined to follow strictly the decisions of the House of Lords, which would have required it simply to take a figure representing the deceased”s annual savings (the balance of his income after deduction of all expenditure constituting net outflow and therefore including expenditure on dependants) and apply a multiplier based on the deceased”s expectation of life; it took age and income into account and also factors such as the possibility that the deceased might have married and reduced his rate of saving, the compound interest payable on a lump sum, the possibility of early retirement depleting his capital, and fluctuations in the rate of capital growth and inflation which would have affected the real value of the estate in the future. The court therefore made a reduced award of $90,000 which it believed would fairly compensate the estate for the lost years; (e) no award was made for the loss of dependency under Part II of the Law of Torts Reform Law, since the deceased”s only dependant was his mother, whose life expectancy was little more than four years; since, as sole beneficiary of her son”s estate, she became entitled to assets far in excess of the maximum which could be awarded for lost dependency, and she had therefore suffered no loss; and (f) the court therefore gave judgment for the plaintiff for a total of $102,340. The proceedings in the Grand Court are reported at 1984–85 CILR 510.

On appeal, the appellant submitted that the proper approach had not been adopted in the assessment of the quantum of damages under the Estates Proceedings Law, 1974 and sought an increase in the award for the ‘lost years’: it had not been calculated using the conventional multiplier/multiplicand formula, as it should have been, simply because the court had considered that this would produce too high an award. On cross-appeal the respondent contended that (a) liability had not been established since the evidence conflicted on how the collision had occurred; the undisputed evidence should have been used as a background against which the acceptability of the oral evidence (including the strong evidence of the expert witness) should have been evaluated; (b) there should have been a finding of contributory negligence as a result of the evidence of the deceased”s negligent driving in failing to take the evasive action open to him at the time of the collision and the fact that he had not been wearing a seat belt; and (c) it was open to the judge to use any formula he considered appropriate to assess damages for the ‘lost years,’ the multiplier/multiplicand formula did not have to be used if the common law principle was followed that damages should be only compensatory.

Held, allowing the appeal:

(1) The evidence given on behalf of the respondent had failed on the balance of probabilities to rebut the presumption (under the Evidence Law, 1978, s.37(2)) raised by his conviction that he had caused the death of the deceased by his dangeroud driving. The proper approach in a civil case following upon previous criminal proceedings resulting in a conviction was that once the presumption had been brought into play under s.37(2), the conviction itself ceased to have any probative effect and the civil case proceeded on the basis of the evidence adduced-including any transcripts of the evidence in the previous criminal proceedings made admissible by ss.30 and 32. The evidence should be evaluated by the court on its merits without any predisposition to accepting it as true or false, following which the presumption under s.37(2) would come into play and the court would have to resolve whether, on the balance of probabilities, the defendant”s evidence rebutted that evidence. If it did not, judgment would be given for the plaintiff (per Georges, J.A., at page 228, line 22 – page 230, line 30)...