Setting aside several decisions, the Caribbean Court of Justice (CCJ) has awarded $6.85m to the parents of a fisherman who died in an accident on 31st January, 2002 when his boat was hit by a pontoon towed by a barge owned by Barama Company Limited (BCL).
The timeline for the hearings in local courts has again underlined the lengthy delays in proceedings.
Following the death of Mahendra Sanasie in the accident, his mother Shantidai filed proceedings against BCL for the loss suffered as a result of her son’s death.
Judgment was granted in favour of Shantidai by Justice Sandra Kurtzious on August 4th, 2017. This was 14 and a half years after the claim was filed.
According to the decision of the CCJ which was handed down on December 9th this year, Justice Kurtzious awarded Shantidai damages in the sum of $12,450,000 together with interest at the rate of 6% per annum from 9 January 2003 to the date of Judgment, and at the rate of 4% per annum thereafter until fully paid. Barama appealed the award of damages and applied for a stay of execution. On 1 February 2018, Justice of Appeal Rishi Persaud ordered a partial stay of execution of the award of damages but ordered that an uncontested $2,000,000 be paid to Shantidai within 14 days of his Order. Shantidai appealed the stay of execution, but this was refused by the Full Bench of the Court of Appeal. She then applied to the CCJ for special leave to appeal the interlocutory decision of the Full Bench of the Court of Appeal.
Shantidai and Barama both agreed that if the CCJ granted special leave, it should treat the hearing of the special leave application as the hearing of the appeal against the refusal by the Full Bench of the Court of Appeal to lift the stay on the award of the damages. As a case management decision, the CCJ said it decided that the circumstances of the case and the sufficiency of the submissions allowed for the Application to be determined on the papers filed. Accordingly, by its Order dated 24 May 2019, the Court dispensed with an oral hearing of the application for special leave and decided it would determine the application on the papers. Having considered the submissions it granted the special leave to Shantidai and found in her favour against the Full Bench of the Court of Appeal.
The CCJ noted in its decision that in awarding damages, Justice Kurtzious considered the process set out by the Guyana Court of Appeal in Singh v Persaud in applying the provisions of the Accidental Death and Workman’s Injuries (Compensation) Act and the Law Reform (Miscellaneous Provisions) Act. The Judge had said that damages recoverable under the first named Act are ‘purely compensatory and are assessed according to the Court’s estimate of the economic loss which the dependents have suffered as a result of the end of the deceased’s support’. An award under the second named Act was based on considering loss of earnings up to the time of death, pain and suffering borne by the deceased, loss of expectation of life, funeral expenses and other special damages.
The CCJ pointed out that in making the award for the loss of dependency, the judge noted that Sanasie was 19 years old at the time of his death and, at the time, was contributing $40,000 to his parents ‘on each trip he returned home’. This, the CCJ pointed out was an error because the evidence was that the deceased gave his parents $40,000 per month rather than $40,000 per trip. As a result of this error, Justice Kurtzious considered that the Applicant was given $40,000 per trip at a rate of three trips per month, for a total of $120,000 per month and $1,440,000 annually. This figure was then multiplied by a multiplier of 10 years as the likely period when his parents could reasonably have expected to be supported by him, for a total of $14,400,000.
Deducted
The CCJ noted that Justice Kurtzious awarded a separate sum as compensation for the loss of expectation of life of $2,000,000 but then, erroneously, deducted this from the sum of $14,400,000 to give a figure of $12,400,000. The CCJ asserted that as was clearly stated in Singh v Persaud the two sums are separate awards and one does not affect the other. The judge then added $50,000 for expenses incurred for a ‘wake’, giving a final figure of $12,450,000.
The CCJ said that counsel for the parties recalled that Justice of Appeal Persaud took the approach that since there was no dispute as to liability, and since Counsel for Barama did not dispute that the figure for loss of expectation of life should be in the region of $2,000,000, that amount should be paid by Barama to Shantidai. The Justice of Appeal then stayed payment of the balance and the Full Bench of the Court of Appeal later dismissed the appeal by Shantidai against the stay.
In considering the Justice of Appeal’s decision to grant a partial stay of the award and the Court of Appeal’s decision to uphold it, the CCJ said the onus was on Shantidai to show that she could have repaid the judgment if Barama was to have succeeded at the Court of Appeal. The CCJ found that Shantidai had not met this requirement.
“The evidence of the Applicant’s financial weakness was of substantial weight and the failure to rebut it left the judge (Justice Persaud) in the position where the judge was bound to give full weight to it. The Court of Appeal made no error in upholding the decision of Persaud JA on this issue”, the CCJ found.
It however said that Shantidai’s inability to repay the trial judge’s award of damages was not, in this case, determinative of whether or not to grant a stay because she would not be required to repay the entire sum awarded, if Barama succeeded on appeal. The CCJ noted that Barama does not contest its liability for the death of Sanasie and was therefore required to pay some amount of money to the Applicant; hence, the grant of only the partial stay by Justice Persaud. Pointing out that the award of $2,000,000 for loss of expectation of life does not appear to be seriously challenged and there was no reason to expect this head would be disturbed on this appeal, the CCJ said that this left remaining the question of how much of the other heads of the award the Court could properly have decided that Shantidai, as a matter of likelihood, would not be obliged to return to Barama even if Barama succeeded on appeal in having the award reduced.
The CCJ then set about making this determination. It ruled that Justice Kurtzious’s award of $14.4m must be reduced to correct the error the judge made in its calculation. The CCJ ruled that “The Court of Appeal did not consider that, because there was undeniably a loss of dependency, at least some portion of the sum awarded for this loss would not be repayable”.
Noting that in its written submissions Barama argued that the loss of dependency was claimed in the Statement of Claim to be $480,000 per annum and the evidence supported that figure, the CCJ said that using a multiplier of 10, which Barama said was on the high side, this would have produced a figure of $4.8m for loss of dependency.
“As a practical matter, the Respondent would be considerably benefitted and protected from injustice if, instead of having to pay $12,450,000.00 (the amount in relation to which it obtained the partial stay), the amount it was now required to pay was reduced to $6,850,000.00. But more than relieving the Respondent of the burden of paying the larger amount, if that figure were substituted it would take the court back to the starting point of the Respondent’s application for a stay of execution: does the Respondent have good prospects of success on appeal against an award of that sum?”, the CCJ asked
The CCJ said that Barama’s appeal to the Court of Appeal against the amount awarded for loss of dependency, apart from its focus on the stated errors by Justice Kurtzious, is that the multiplicand, the monthly amount which the Applicant could have expected to continue receiving from the son, should have been reduced to take account of his possibly getting married and having to reduce his contribution to his parents. The CCJ said that Justice Kurtzious found, there was no evidence to have made this a likely prospect; to have taken it beyond a mere possibility.
The CCJ pointed out that nothing was placed before the Court of Appeal or the CCJ to indicate the prospects of this argument succeeding; understandably so, since the issue did not arise in the stay proceedings. The CCJ said that it is a fact, however, that the dependents, the parents, both lived for more than 10 years after the death of Sanasie and continued, beyond that period, to suffer the loss of being able to depend on their son, so the prospect of reducing the multiplier seems weak.
Loss of dependency
Therefore, the CCJ said that so far as Barama’s case goes for challenging the corrected figure for loss of dependency, while it may have an arguable case as to the multiplicand, it does not seem to have good prospects of success. If a stay had been sought on this limited material, it would probably not have been granted, it said.
The CCJ noted that Shantidai had asked it, beyond setting aside the stay, to proceed to fully resolve this matter by determining the quantum of damages due to her and making a final award.
“The Court cannot so proceed because, as indicated in this judgment, there are outstanding challenges on both sides; not merely to the arithmetic, but to the principles and factors on which the award was based and these must be decided by the Court of Appeal, after full argument”, the CCJ said.
However, the CCJ said that in addition to allowing the appeal, it would exercise the jurisdiction given to it by Section 6 of Article XXV (Part III) of the Agreement establishing it which provides that in relation to any appeal to it, the CCJ may exercise all the powers possessed by the Court of Appeal.
This, the CCJ said, must surely include the power to correct any patent errors in the judgment of the trial court, and especially so where both sides agree on the nature and extent of the error and the Court of Appeal has concluded that the error was made.
“This Court, therefore, now corrects the errors in the calculation of the quantum of damages awarded to the Applicant as follows: (i) The sum of $480,000 is to be substituted as the annual dependency in place of $1,440,000. Using the High Court’s multiplier of 10, of which this Court neither approves nor disapproves, this produces a total award for loss of dependency of $4,800,000. (ii) The sum of $2,000,000 awarded for loss of expectation of life is a separate award and is not to be deducted from the loss of dependency. (iii) The total award of
$12,450,000 is replaced by an award of $6,850,000.
As a consequence, the CCJ ordered that:
(i)The Application for Special leave to appeal to it is granted and the appeal against the judgment of the Court of Appeal is allowed.
(i) The partial stay ordered by Persaud JA and upheld by the Court of Appeal is set aside.
(ii) The award of $12,450,000.00 is set aside and replaced with an award of $6,850,000.00
(iii) The award of interest made in the Judgment, at the rate of 6% from the filing of the action to the date of delivery of the Judgment, and at the rate of 4% thereafter until fully paid, shall take effect on the substituted award.
(iv) The sum of $2,000,000, already paid to the Appellant pursuant to the Order of Persaud JA, shall be subtracted from the sum at (iii) to be paid to the Applicant.
(v) The parties shall take the necessary steps to expedite (or otherwise dispose of) the appeal pending before the Court of Appeal.
(vi) Each side shall bear its own costs of this appeal.
Shantidai was represented by Kamal Ramkarran while Neil Aubrey Boston SC appeared for Barama Company Limited.
The decision was handed down by the CCJ panel comprised of Justices Winston Anderson, Denys Barrow and Andrew Burgess.
