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Court awards EC$1 million for death of Oscar Bartholomew – Part II

Attorney-at-law Ruggles Ferguson – was involved in the Oscar Bartholomew court matter

A court in Grenada has handed out a one million $EC award in damages to the family of Grenadian-born Canadian naturalised citizen Oscar Bartholomew who met his death in December 2011 after he was badly beaten by several police officers at a police station in St. David.

Master Jan Drysdale handed down the ruling in a civil suit brought by Colette St Cyr, the wife of Bartholomew and Shem Pierre, on behalf of the Administrators of the Estate of the deceased.

Attorney-at-law Derick Sylvester was retained by the Bartholomew family to represent them in the lawsuit.

The 39-year old Bartholomew was on a Christmas visit to his homeland when he met his death in an incident that attracted worldwide media attention.

His wife had stopped at the St David’s police station to use the washroom when Bartholomew gave his trademark bear hug to a female police officer who cried out for help and her male colleagues attempted to arrest him.

There was some kind of altercation and he was taken into custody and mauled by police officers who were then charged with Manslaughter in 2017.

The civil lawsuit was filed by Attorney Sylvester against the Attorney General of Grenada along with police officers Kenton Hazzard, Edward Gibson, Shaun Ganness, Rody Felix and Wendell Sylvester.

Master Drysdale ordered that the Defendants pay the following in the Oscar Bartholomew case:

*Special damages in the sum of $4,000.00 with interest thereon at the rate of 3% per annum from the date of the accident to the date of judgment on assessment.

*Damages for loss of expectation of life in the sum of $5,000.00.

*Loss of income in the sum of $947,463.39.

*Damages for pain and suffering and loss of amenities in the sum of $10,000.00 with interest thereon at the rate of 6% per annum.

As a public service, THE NEW TODAY reproduces in full the 17- page judgement of the Master:-

Dr. Daisley Jr.
[34] The witness deposed that he is an experienced Clinical and Forensic Pathologist having conducted over 1000 autopsies throughout his career. That he examined the Deceased on the 31 51 day of December 2011 at the La Qua Funeral Home. There was evidence that a prior post-mortem had been undertaken.

[35] The examination revealed that the Deceased suffered numerous abrasions, contusions and lacerations about his body. The Deceased body had multiple blunt force injuries involving his upper and lower limbs. There was also extensive subdural haemorrhage involving the right temporal and parietal lobes of the brain causing marked oedema of the underlying brain and coning.

[36] The Deceased died from blunt force trauma to the skull caused by extensive subdural haemorrhage involving the right side of the brain, multiple skull bone fractures and had raised intracranial pressure and aspirated.

[37] On cross examination the Pathologist agreed that a person rendered unconscious would not during that state feel pain. He however disagreed that the degree of pain felt by the Deceased could not be quantified as the Deceased was conscious for a period of time. During his conscious period, he explained the Deceased would have felt severe pain.

[38] Finally Dr. Daisley confirmed that his fee for the services performed is the sum of US$20,000.00. He testified however that he has not been paid for those serv1ces.

The Legislative Framework
[39] The Claimant’s claim is made pursuant to the Compensation for Injuries Act.1 and the Law Reform Miscellaneous Act. 2 It is submitted that the cojoined effect of these two acts is to allow for the survival of actions after the death of the Deceased to be brought and maintained for the benefit of the estate and for a claim to be made by the dependants of the Deceased. For clarity, the relevant sections of these acts are set out below.

Compensation for Injuries Act
‘3. Action maintainable for injury notwithstanding death of person injured Whenever the death of any person is caused by a wrongful act, neglect or default, and the act, neglect or default is such as would before the commencement of this Act (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to a felony.’

Law Reform Miscellaneous Act
‘2(2)(c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss of gain to his Estate consequent upon his death, except that a sum in respect of funeral expenses may be included.

2 (5) The rights conferred by this section for the benefit of the estates of the deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Compensation for Injuries Act, Chapter 59 and so much of this section as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under that Act as it applies in relation to other causes of action no expressly excepted from the operation of subsection 1 of this section.”

Analysis
[40] The heads of damages associated with a survival action pursuant to the Compensation for Injuries Act include damages for funeral expense and other special damages, loss of expectation of life, pain and suffering if applicable and damages for lost income. These will be addressed hereunder.

Special Damages
[41] The Claimant has claimed the sum of $73,082.50 representing the aggregate cost of funeral expenses and the cost of the autopsy performed by Dr. Daisley.

The Claimant has exhibited the associated invoices to justify this claim. The Sixth Defendant challenges the Claimant’s ability to prove special damages and argues that in the circumstances only an award for nominal damages should be made.

[42] Special damages are damages which are capable of precise calculation. For that reason they must be specifically pleaded and proved. Lord Diplock made this pronouncement in llkiw v Samuels where he stated, “it is plain law … that one can recover in an action only special damages which has been pleaded and of course proved.” Therefore in order for these damages to be recoverable the Claimant must adduce satisfactory evidence to prove that these expenses have been incurred.

[43] In relation to the costs of the autopsy, Dr. Dais ley’s evidence is that he has not been paid. The invoice therefore only represents sums due for services performed and not evidence of payment. There being no incurred expense this is not recoverable as special damages.

[44] As it relates to the sum claimed for funeral expenses, the same is also not recoverable. As previously indicated the Claimant only provided an invoice seemingly as proof of payment. However an invoice unlike a receipt which is universally accepted as proof of payment is only an acknowledgment of a debt.

It is not proof of payment. The case of Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited was applied in the case of Anthony v Yhap et al and it was accepted that neither an invoice which does not bear the words paid thereon nor a proforma invoice which is a commitment to purchase were a receipt or proof of payment. It is therefore insufficient for the Claimant to simply provide unendorsed invoices as satisfactory proof entitling a party to special damages. The documents submitted by the Claimant have failed to meet the strict proof required and therefore are not subject to recovery.

[45] If the absence of proof, reasonable and nominal awards may be granted. The authority of Carlton Greer v Alston’s Engineering Sales and Services Ltd established that where loss has been shown but the necessary evidence as to its amount is absent the Court can award nominal damages. I accept that the Claimant would have incurred expenses associated with the burial of her husband. Therefore, the Claimant is awarded nominal damages in the sum of $4,000.00.

Loss of Expectation of Life
[46] Damages for loss of expectation of life are in respect of the loss of life. It is awarded irrespective of age of the Deceased. Issues of future pecuniary prospects, wealth, status of the Deceased prior to his untimely demise are not relevant concerns to determine the basis of the award. Support for this position is gleaned from the case of Yorkshire Electricity Board v Naylor. In that case Lord Morris of Borth-y-Gest stated:

“It is to be observed and remembered that the prospects to be considered and those which were being referred to by Viscount Simon L.C. in his speech were not the prospects of employment or of social status or of relative pecuniary affluence but the prospects of a ‘positive measure of happiness’ or of a ‘predominantly happy life’.”

[47] Judicial authority indicates that a modest conventional sum is to be awarded as damages. Accordingly, I have taken cognisant of the cases of Nichanna Lewis v Nash, Gemma Cherubim qua Administrator of the Estate of Anthony Cherubin v The Attorney General and Phillip et al v Gaston et al consolidated with Fad lien et al v Gaston et al.10 In all of the aforesaid cases which were decided between 2019 and 2020 damages in the sum of $5,000.00 was awarded for loss of expectation of life. In each case an examination of the effect on inflation on the previously accepted sum which the Courts had routinely applied for loss of expectation of life was undertaken before arriving at the decision that an uplift in the conventional sum was warranted at this time. I see no need to deviate from these authorities and as such similarly award the Claimant the sum of $5,000.00 for loss of expectation of life.

Loss of Earnings -The Lost years
[48] Damages for the lost years are compensatory in nature and are awarded for to the estate for the years in which the Deceased would have been earning an income but for his premature demise.

[49] In this aspect of the claim, both the Claimant and the Sixth Defendant suggest that damages for loss of earnings should be calculated utilising the two-stage approach as propounded in the case of Cookson v Knowles. I pause here to note that whilst this authority advocated a two staged approach in the calculation of damages, this was with respect to a claim for dependency and not a survival action to which we are concerned. I note further that at the material time survival actions had not yet been abolished in the United Kingdom.

Notwithstanding this, both survival and dependency actions utilize the same method of calculation being the multiplier/multiplicand methodology. It is my considered opinion that notwithstanding the manner of calculations for survival actions may not have been in the contemplation of the courts in the Cookson case that the principle laid down is similarly applicable to survival actions. I am also of the opinion that the recent authority of Kaneur v Ministry of Justice which did not follow Cookson v Knowles regarding the start date of the multiplier and instead ruled that damages should be calculated from the date of trial and not death has no effect on the applicability of Cookson principle as that case was expressly decided in relation to the Ogden Tables.

The Ogden tables take into account issues of ‘mortality risk and whether, for example, a deceased would have remained in employment or become ill, or for other reasons ceased to provide maintenance, are all matters which a Court has to assess on the evidence available to it at the trial. ‘ Therefore the Odgen tables can be used to determine in a less arbitrary way the uncertainty of the deceased’s life expectancy. For that reason it was determined that the start date of the multiplier could be pegged at the date of trial without doing any injustice to the parties. Sadly, the Odgen tables are not used in this jurisdiction and as such the principles as propounded by Cookson v Knowles which at the time was an attempt to remedy the unfairness in the computation of loss where there had been a delay between the death and the trial is still good law and shall be applied to these proceedings.

Stage 1 – Pre Trial Loss
[50] In this two staged-approach the multiplier is calculated with reference to the number of years between the Deceased’s death and the assessment hearing.

The Deceased died on 27th December 2011 and the assessment was conducted on 2nd November 2020 thereby making some eight years and 10 months between the two periods.

[51] The Claimant has satisfactorily proved that the Deceased’s annual net income prior to his death was the sum of CAN$28,936.03 or $59,646.56. The Claimant posits that the Deceased being a family-oriented man, spent one third of his income upon himself with the remaining two thirds on his family. The Sixth Defendant suggests that a more acceptable multiplicand is calculated by using 50% as the measure of income that the Deceased spent on himself. It is unchallenged that the Deceased was a family-oriented man. In such circumstances it is more likely that the lion’s share of his income would be devoted to the care of his family. Therefore, I accept the Claimant’s assertion that the Deceased allocated 2/3 of his income to the care of his family being his wife and minor daughter. That being the case the applicable income or multiplicand is the sum of CAN$19,290.69 or $39,743.05. As a result, the pretrial loss is the sum of $351 ,028.61.

TO BE CONTINUED

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