Matthew Franklyn Veinotte v Daniella C Williams Mitchell (2024)

Before:

Mrs. Michelle John-Theobalds Master [Ag.]

GDAHCV2019/0549

Between:

Matthew Franklyn Veinotte

Claimant

and

1. Daniella C Williams Mitchell

(Executrix for the Estate of 1st Defendant Royianson De Freitas, Deceased)

2. Akim Frank

Defendant

Ms. Chrystal Braveboy-Chetram of counsel for the claimant

Mr. Akim Frank, present but unrepresented.

1

John-Theobalds M [AG.]: On 6 ^th December 2015, 36 year old Linnea Veinotte was out for a morning run along the L'Anse Aux Epines main road, in the parish of St. George. What was intended to be recreational soon turned tragic when she was hit by a Suzuki Escudo which was being driven by the second named defendant, Akim Frank. As a result of the collision Ms Veinotte lost her life. The administrator for her estate filed a claim against the owner of the vehicle as well as the driver of the vehicle. Somewhere during the proceedings the owner of the vehicle died and by order of Glasgow J on 10 ^th July 2020 the executix of the estate of Royianson De Fraitus (deceased) was substituted as the first named defendant.

2

On 14 ^th October 2020 judgment in default of acknowledgment of service was entered against Akim Frank for special damages in the sum of $8, 832.50 and general damages to be assessed by the court. This is the assessment of these damages.

3

The claim is for the recovery of damages for the estate of the deceased. The claimant relies on section 2(1) Law Reform ( Miscellaneous Torts) Act, 1 which provides that on a person's death, a cause of action may survive after the person's death in a case such as this one. Where a cause of action survives, the Act also makes it clear that damages are recoverable for injury and loss suffered by the deceased, but it excludes loss or gain to the estate, save for funeral expenses. Corbin M buttressed this finding in Kida Harvey v Don Mcintosh 2 by holding that the Act allows an action to be maintained by the estate for injury and loss suffered by a deceased.

4

I am satisfied that the administrators of the deceased's estate are entitled to recover damages for loss of expectation of life, pain and suffering, lost earnings for lost years, funeral expenses and other special damages and will now assess the damages to be awarded to the claimant under the headings claimed by the claimant.

5

The claimant has in their Statement of Claim, claimed for funeral expenses in the sum of $8.832.50. A receipt from Otway/Bailey Funeral Home was annexed to the Amended Claim Form and Amended Statement of Claim filed as Exhibit “LV 8”

evidencing that this amount has been paid in full. The claimant has proven this amount satisfactorily and I therefore award funeral expenses in the sum of $8.832.50

6

The claimant submits that General Damages should be awarded under 3 heads; Lost Earnings for Lost years, Loss of expectation of Life and Pain and Suffering. I will take each in turn.

7

At the time of her death, Mrs. Vienotte held a PHD in Genetics and Immunology and was employed as an Assistant Professor and Learning Strategist with the Department of Educational Services at Saint George's University. For this position she earned an annual salary of US$ 87,681.52 before the deduction of the statutory withholding tax of 15%. This was evidenced by a copy of her letter of Appointment dated 22 ^nd April, 2015 which was annexed to the First Claimant's Witness Statement. This letter also stated that she would be eligible for an annual target performance bonus of US$886.94, which would have been paid at the end of October of the following academic year and which is also subject to the statutory withholding tax of 15%. On this basis, the claimants suggest that the deceased's gross annual salary, taking the bonus into consideration, was US$88,568.46 and her annual net salary after tax was US$75,283.19. I accept this sum.

8

When making an award under this head, the court must give consideration to the proportion of the deceased's earnings which would have been applied for the benefit of the family.

9

In Irma Smith et al v Omari Phillip, 3 Mathurin M (as she then was) stated:

“[4] The principles in calculating the award for loss of earnings was stated as follows in the Pickett case …;

“The loss to the estate is what the deceased would have been likely to have available to save, spend or distribute after meeting the cost of his living at a standard which his job and career prospects at the time of death would suggest he was reasonably likely to achieve.”

Additionally, the court must make the best estimate based on the known facts and prospects at the time of death.”

10

To inform how the court should determine the multiplicand used to calculate the lost earnings, Mathurin M went further to state:

“[5] The judgment of Benjamin J. in Anna Modeste et al v Jacobs et al (GDAHCV2000/0583) addressed in detail the manner in which the court determines the annual salary which is the multiplicand used for calculating the lost earnings. He referred to Lord Scarman in Gammel v Wilson who confirmed the approach taken by Lord Wilberforce in Pickett's case;

‘the amount to be recovered in respect of earnings in the “lost years” should be after deduction of an estimated sum to represent the victim's probable living expenses during those years. I think that this is right because the basis, in principle, for recovery lies in the interest which he has in making provision for dependents and others, and this he would do out of his surplus.”

[6] Benjamin J also referred to Connor LJ in the unanimous Court of Appeal judgment in Harris v Empress Motors Ltd (1983) 3 All ER 561

“However, where the deceased expended the whole or part of his net earnings on living expenses (such as rent, mortgage, interest, rates, heating, electricity, gas, telephone etc and the cost of running a car) for the joint benefit of himself and his dependents, a proportion of that expenditure (the exact proportion being dependent on the number of dependents) should be treated as expenditure exclusively attributable to his living expenses and thus deductible from his net earnings in making the assessment under the 1934 Act; for example, where the only dependent is the deceased's wife one-half of the expenditure for their joint benefit should be deducted from his net earnings, but where there is a wife and two dependent children, one quarter of the expenditure for the family's benefit should be deducted from his net earnings.” (emphasis mine)

11

Taking into...