IN THE HIGH COURT OF JUSTICE BETWEEN. TAWARI TOTA-MAHARAJ Administrator Ad Litem of the Estate of Arvind Tota-Maharaj Deceased Plaintiff AND

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1 TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE HCA: No.46 of 2003 BETWEEN TAWARI TOTA-MAHARAJ Administrator Ad Litem of the Estate of Arvind Tota-Maharaj Deceased Plaintiff AND AUTOCENTER LIMITED ANDRE RICHARDS THE BEACON INSURANCE COMPANY LIMITED Defendants BEFORE THE HONOURABLE MR. JUSTICE PETER RAJKUMAR APPEARANCES: Mr. Asaf Hosein for the plaintiff Mr. Lennox Sanguinette for the defendants Judgment I am asked to assess the damages payable in respect of the death of the Deceased arising out of a motor vehicular accident. The Deceased was born on 15 th June At the time of his death on 9 th January 1999, he was aged 19. It is common ground that sums are awardable in respect of the estate of the Deceased under the following heads: (1) Loss of expectation of life; (2) Earnings in respect of the lost years. - Under this heading, what is relevant is: (i) The appropriate multiplier to be applied in respect of the Deceased s earnings; and (ii) The appropriate multiplicand.

2 Disposition The award therefore would be as follows: In respect of the seven years from June 20 th 2001 to June 20 th 2008, loss of earnings $6, x 12 x 7 = $504, Post-assessment loss: $10, x 12 x 11 = $1,320, Loss of expectation of life: $20, Funeral expenses: $4, with interest thereon at 12% per annum from 27 th January 1999 to 20 th June 2008, date of judgment. Interest on the pre-assessment portion of the loss of earnings $504, at the rate of 6% per annum from 20 th June 2001 to June 20 th 2008 the date of judgment. Loss of expectation of life It is common ground that the conventional sum awarded in respect of loss of expectation of life at present stands at $15, This sum is a conventional sum. It appears that it does not rise in step with inflation and it is a sum that is awarded regardless of the status in life of the Deceased or his age. It is a conventional sum awarded to mark the fact that some loss, difficult though it may be to quantify, must necessarily arise in respect of a party s loss of expectation of his remaining life. In High Court Action No of 1993, Vishnu Ramsingh v Butcher, delivered on 24 th June 1999 the Honourable Justice Barnes increased the sum awarded under this head to $15, As recently as July an award of $ was being made under this head See for example Heru v Singh CV Delivered by the Honourable Justice Stollmeyer where an award of $ was agreed to by both counsel. I am asked to consider whether, bearing in mind the fact that nine years have passed since this sum was last re-visited and re-valued, the sum in respect of loss of expectation of life, although a conventional sum, should be increased. I bear in mind that inflation over nine years would have significantly decreased the purchasing capacity of the sum of $15, I also bear in mind the explanation of the rationale behind this award in McGregor on Damages 15 th ed para 1530/1531 2

3 and note that it is contemplated that this award would not remain static over time. Unlike in the United Kingdom the legislature has not abolished this head of damage and it remains part of our law. Accordingly, while taking into account the fact that the award is in respect of a conventional sum, I am minded to increase the figure awardable for loss of expectation of life to reflect the fact that failure to increase a conventional sum by an amount, however incremental, would result over time in that award ceasing to become of any relevance as it would have been eroded by the effects of inflation and converted from a conventional sum to a nominal sum. In the circumstances, I award the sum of $20, for loss of expectation of life. Multiplicand The Plaintiff has put forward evidence of earnings of an Engineer in the public sector and in the private sector. It has to be borne in mind that the Deceased was a first year mechanical engineering student and therefore would have only begun to work, if at all, upon completion of his degree. I am asked to discount the multiplicand based upon the possibility that he may not complete his degree. I am not minded to apply a discount in this regard. The Applicant comes from a family of professionals, with both parents and siblings qualified professionally. There is no reason to believe that the Deceased himself would not also have done so. I note that despite all the evidence produced concerning the academic qualifications of the Deceased s mother, father, sister and brother, none was produced in respect of the Deceased himself. While I would normally find this omission suspicious, I find in this case there is no reason to believe that the Deceased was anything other than a good student who would likely have followed in the footsteps of his family and sooner rather than later would have qualified as a professional. The Deceased died on 8 th January He was in his first year at the University of the West Indies. He would therefore have completed his degree in or around the middle of

4 The Salary scale for engineers in the public sector was tendered into evidence. The earnings of an Engineer in the public sector in 2005 commences in the monthly sum of $6,875.00, rising to $7, in 2006 and $8, in 2007 plus a monthly professional allowance of $ By the year 2005, assuming that he had worked in the public service and had not pursued higher education like his brother, he would have been working for a little over four years. The evidence is that the salary scale of Mechanical Engineers carries a minimum, maximum and a longevity salary point and that movement along the scale is dependent upon the completion of a performance appraisal attesting to the satisfactory completion of the preceding year certified by the employer. I find it unlikely that, if he had been working for four years, he would have remained at point A in the salary scale. It is clear that by 2008 he would not have reached the maximum of the salary scale for Mechanical Engineer I. It is probable and in fact more likely that before he reached that maximum on the salary scale for Mechanical Engineer I, he would have been promoted to Mechanical Engineer II. I find it likely that by 2005, the date when the salary scale commenced, the Deceased would in all likelihood, given the recent state of the economy and the construction sector, have been promoted to a Mechanical Engineer II and that as at the date of assessment (June ), he would not have qualified for longevity payments in respect of either the post of Mechanical Engineer I or Mechanical Engineer II. I find that assuming rapid progress in his career it is likely that he may have achieved salary point F in the post of Mechanical Engineer II. Basic pretax salary- pre 2005 There is no evidence as to what his salary would have been were he to be employed as Mechanical Engineer I prior to However, I take the lowest point on the public sector salary scale provided and assume that it certainly could not have been higher than that before Accordingly, I find that for the years 2001 to 2005, he would probably have been a Mechanical Engineer I, that his basic salary would have been no more than $6, per month, that even using 2005 to 2007 salary scales, his salary 4

5 as Mechanical Engineer I would not have exceeded $7, and that the average therefore of his pre tax basic salary would have been between $6, and $7,872.00, that is, $7, I take into account that $7, is the salary under the 2005 to 2007 scale and that it is likely to have been less than this before Accordingly, I assume that the deceased s average earnings in fact would be in the vicinity of $10,500.00, that is, $7, [rounded off] plus $3, per month up to Basic pretax salary onwards As a Mechanical Engineer II at salary point F for 2005, his basic salary could therefore have been $8,575.00, in 2006 his monthly salary could have been $8,832.00, and in 2007 his salary could have been $l0, To these sums an allowance of $3, is to be added. From 2005 to 2007 his basic salary would have ranged from $8, to $10, I use the average of those as $9, (plus $3,500.00) per month over the period 2005 to 2007 giving an average of $ per month for that period. Basic pretax salary onwards For the period mid 2007 to 2008, I use the sum of $10, (plus $3,500.00) per month. Mid $10, per month (4 years * 12) Mid $12, per month (2 years * 12) Mid $13, per month (1 year * 12) The Average over 84 months is $11, per month pretax. This accords with the $10, per month net earnings accepted by Counsel for the Defendant as being payable to the deceased on completion of his degree. I find this sum of $10, proved as net pre assessment monthly earning. Other Scales There is in evidence rates at the Water and Sewerage Authority in respect of graduate Engineers whose monthly pay after tax is $11, and Engineers in range 60 whose monthly net salary is $13, plus to Engineers in range 68 whose monthly 5

6 net salary would be $18, plus. There is no evidence as to what number of years of experience would be required for Engineers in these various ranges at the Water and Sewerage Authority. There is also evidence of salary ranges at Lee Young & Partners. As at 2007, a graduate Engineer s salary would be $8, per month and a travelling allowance of $1, per month plus a telecommunications allowance of $ per month and a vehicle. A project Engineer with 3 years experience, which the Deceased would have had as at this point in time, is $14, per month and a travelling allowing of $1, a month and a telecommunications allowance of $ a month. A Project Engineer with 5 years experience would have had a gross salary of $17, per month, a travelling allowance of $1, per month and a telecommunications allowance of $ a month plus a vehicle. I find that from 2008 onwards, it is likely that the Deceased would not have remained in a position which did not provide him with compensation equivalent to that which he could receive elsewhere. I find that the relevant rate in the private sector would be that from Lee Young & Partners for a Project Engineer with 5 years experience of $17, before tax and allowances of $1, per month. (I disregard the evidence found in the memo of 15 th March 2007 with the schedule of rates for professional Engineers. It would be unusual for a salaried professional to be paid at an hourly rate.) The Lee Young salary breakdown is broadly consistent with the Water and Sewerage Authority schedule of salaries. I use the figure of $18, per month and deduct therefrom a sum in respect of tax. 6

7 Based upon the figures for Engineer in range 60 for the Water and Sewerage Authority, I find that monthly tax would be approximately $2, and therefore the post tax take-home salary for the Deceased, were he to be employed in the private sector at this point in time, would have been in the vicinity of approximately $16, ($18, minus approximately $2,500.00). The Applicant claims $ I find this sum applicable and proved. That sum would be applicable for the post assessment portion of this award. Living Expenses From this sum must be deducted the Deceased s living expenses. I take into account the fact that the Deceased was single, that at some point in time it is likely that he would have gotten married, that it is not likely that he would have remained unmarried beyond age 30 and in fact it is likely that as at this point in time were the Deceased alive that he would be married. Principles This is a case under the Supreme Court of Judicature Act for damages for the estate of the Deceased. There is no claim in respect of a dependency in this matter. I am therefore guided by the position in the case of Harris v Empress Motors Limited. I note the reference at page 571(b) to the guidance of Lord Salmon in the House of Lords case of Pickett v British Rail Engineering Limited [1980] AC : Damages for the loss of earnings during the lost years should be assessed justly and with moderation. Also at page 576(d) the case of White v London Transport Executive [1982] QB 499 is cited: Thus for example in this day and age the ordinary working man s life would not be regarded by him as reasonably satisfactory and potentially enjoyable if he cannot afford a short holiday, a modest amount of entertainment and social activity and, depending on his particular circumstances, a car. Also at page 500 of the White v London case cited at page 576(h) to (j): The first inference that needs to be drawn as it seems to me, if my definition of the loss in question is correct, is whether, and if so, broadly to what extent, the deceased s prospective earnings match the circumstances into which he had been born and was living. Because if a man born and brought up in very comfortable circumstances is a relatively low earner, his earnings might not even be sufficient to meet his reasonable needs, let alone to exceed them, while, on the other hand, a man with relatively modest demands, earning 7

8 relatively a lot of money compared with that earned by most men in his circumstances, would be likely to have a large surplus. I accept the reasoning in the Harris v Empress case that the surplus funds approach is to be adopted in preference to the savings only approach for the purpose of calculating the amount of the multiplicand to be used representing the earnings of the Deceased in the lost years. Deductions I was invited to make a deduction of two-thirds of the Deceased s earnings. I decline to do so. I note that in the White case the Judge deducted two-thirds of net income for the first five years until the Deceased would have left home. However, I note the reason for this at page 577(c) in Harris v Empress as follows : The reason for supporting this high rate of deduction in cases such as White, Gammell and Furness, is that the future is speculative and allowance has to be made for the fact that a man may never marry, may never save a farthing, may never support anybody; but when one is faced with the position in Pickett or in the present two cases, the position is entirely different. That which is speculative in Gammell to a very high degree is not speculative at all; that which is not to be deducted can be seen with reasonable clarity and, as one would expect, a very much smaller part of the net earnings will fall to be deducted. At pages 577(d) to (e): We were asked by counsel for the defendants in the Cole case and by counsel for the defendants in the Harris case to give guidance, if we could, as to what proportion of the net earnings in the lost years should be deducted for the purpose of the Law Reform Act claim. Regretfully, I find it impossible to do this because so much depends on the amount of the joint expenditure and the number of persons among whom it is to be divided; that in general, according to the circumstances, it seems to me that the proportion will be greater than the percentage used for calculating the dependency under the Fatal Accidents Act. I also note that under the Fatal Accidents Act, the amount of living expenses is conventionally assessed at no more than one-third of net earnings. Applying those principles to the instant case, I find as follows: (1) Each matter is fact specific. (2) The Deceased in this case would have commenced earning at age 21. (3) I make no deduction for the chance that he would not have completed his degree. I accept as in Herring v Ministry of Defence [2004] 1 All ER 44 that 8

9 it neither necessary nor appropriate to adopt the percentage chance approach in respect of the possibility that the Deceased would not have become a Mechanical Engineer. (4) I find that on a balance of probabilities it is likely that the Deceased s earnings would be as I have set out above. (5) I consider the following matters would be relevant to the deductions to be applied in respect of the instant Deceased: (i) I accept the evidence of the Deceased s father that the Deceased would have been provided for to a considerable extent, that is, his living expenses would have been largely taken care of. (ii) I find that there is nothing unusual and it is increasingly common that the Deceased would have continued to live at home until the time that he got married. (iii) I find it is less likely that the Deceased would have lived at home after he got married. While it is possible that this is the case, it is not so common that I can find it inevitable that he would have remained at home after he got married. (iv) I do not accept that the Deceased would have had a motor vehicle provided for him. I take note of the fact that the Deceased at the time of his death was a pedestrian and there is no evidence that the Deceased was the owner of a motor vehicle at that point in time. (v) I find it is likely on a balance of probability that the Deceased would have had the expenses of acquiring a motor vehicle. (vi) Even if the Deceased s would have had a motor vehicle provided for him, I find that it is unlikely that the Deceased would have been absolved of the duty of maintaining such a vehicle and providing it with fuel. I find it is likely therefore that the Deceased would have had the expenses of maintaining a motor vehicle. (vii) I find also if the Deceased were working, it is likely that the Deceased would have been required to pay the insurance on such a vehicle. (6) I note that even if I had accepted the savings only approach (which I do not) the expense of a mortgage (expenditure on a capital asset for creation of wealth) would have been part of the Deceased s savings and therefore available for the estate. On principle, therefore, the amount of a mortgage 9

10 would not be deductible from any amount that I assess as the Defendant s living expenses. (7) I accept in accordance with Harris v Empress (ibid) that the sum to be deducted as living expenses is the proportion of the Deceased s net earnings that he would have spent exclusively on himself to maintain himself at the standard of life appropriate to his situation. (8) I accept that for the first five years up to the date of trial the Deceased would in all probability not have had to maintain anyone other than himself. (9) I consider it unlikely that the Deceased would have remained unmarried much beyond the date of this assessment and therefore for the purpose of assessing post-assessment earnings, I assume that the Deceased would be married and would have had to incur additional expenditure in maintaining a wife. (10) I therefore propose to assess the monthly cost of the Deceased s enjoying a standard of living which would include: (i) a short holiday, (ii) a modest amount of entertainment and social activity, (iii) a car. Taking those matters into account, I consider it hardly conceivable that the Deceased would have spent any less than $4, per month on himself up to the time of assessment. I find it unlikely that the Deceased would have been given this sum by his parents and that this sum would have had to have been expended by the Deceased himself out of his own earnings: car $1,500.00; clothing and miscellaneous $1,000.00; travel $1,000.00; entertainment $1, I consider these figures highly conservative and a minimum of expenditure that can reasonably be anticipated in respect of a young, newly qualified professional with a conservative social life, living at home and having most of his meals there. Surplus Accordingly, I find that the surplus that would have been available to the Deceased up to the date of assessment would have been higher than that in the White case. I find, however, that that surplus would diminish once the Deceased got married since on a balance of probabilities he would have had to expend some sum on rent. Even if he were to have remained at home, a higher proportion of expenditure would have been required for his personal living expenses which would have increased both because of 10

11 inflation and because he would have had to support himself in accordance with his station in life which would have changed by virtue of marriage. If he were to contribute to the household of his parents, it would be reasonable to include a further sum of $ which should be as a minimum contribution. However, I find that in the circumstances of family life described by the Plaintiff, such a contribution would probably not have been required. I therefore apply a deduction of $4, per month to pre assessment earnings and $5, per month to post assessment earnings. The monthly surplus for the deceased s estate pre-assessment I find would be $10, less $4, That gives a figure of $6, per month for 7 years or $504, In respect of post-assessment loss, I award the sum of $1,320, being $15, minus amounts spent by the deceased of $5, multiplied by 12 multiplied by 11. Pension Having used a multiplier of 18, I find that as the Deceased was 19 years old at the date of death, it would be highly speculative to attempt to calculate his pension. (1) The evidence in respect of pension assumes that he remains in Government service. I have chosen to use the higher multiplicand in respect of the Deceased from the date of assessment onwards and have derived that figure from the evidence relating to the private sector. (2) There was no evidence that the private sector salary includes any proportion in respect of pension. A pension can either be contributory or non-contributory but in the private sector I take note of the fact that it must arise as a result of contributions paid into a plan. There is no material to suggest that any of the private sector employers referred to operate such a plan. The Deceased would therefore have had to make his own provision out of salary paid to him in respect of any pension he expected to receive at age 60 or

12 Public Sector If the Deceased had remained in the public sector, he could, as things stand at present, probably have expected to receive a pension. However, he would have received such pension at the age of retirement. That age of retirement would be more 44 years after he began to work. Even if he qualified for a pension after less years of service than that it is unlikely that he would so qualify after 18 years of service which is the multiplier I used. Even with a multiplier of 22 as contended for by the Claimant, it would have been well beyond the 22 years projected before the Deceased would have begun earning a pension. Many things could have happened before then. The Deceased could have left Government service, as I find highly likely. The Deceased may have migrated like his sister or pursued further studies like his brother. The Deceased may have gone into private sector employment where he would have had to contribute in respect of his pension or to his own private annuity fund. Another option is that the Deceased may have stayed with one or other agency of the Government but elected to remain on contract and provide for his own pension. I find that given all the various permutations, that an attempt to calculate the Deceased s potential pension 45 years later would be highly speculative and I decline to do so. Multiplier I note the injunction referred to in Harris v Empress from the case of Pickett that damages for loss of earnings during the lost years be assessed justly and with moderation. I note the case of Young v Percival [1974] 3 All ER 681 referred to in Harris v Empress at page 565(c) where the Court assessed the right multiplier to be 14 in respect of the Deceased aged 29 and considered a multiplier of 16 was too high. I note also the case of Mallett v McMonagle [1970] AC 177 per Lord Diplock at page 565(b): In cases such as the present where the deceased was aged 25 and the appellant his widow about the same age Courts have not infrequently awarded 16 years of dependency. It is seldom that this number of years purchase is exceeded. The Deceased was born on 15 th June As at the date of assessment he would have been 28 years old. In respect of a Deceased who was 28 years old at the date of 12

13 assessment, his working life, were he to have worked to age 65, would be 37 years. However, that period of working life is discounted to take into account the contingencies of life In respect of pre-trial loss, I take into account the fact that nine years have elapsed since the date of the Deceased s death, and that his earnings could be expected to have commenced when he completed year 3 of his degree post In doing so, I take into account the fact that: (1) The award is not susceptible to precise mathematical calculation but constitutes a Court s best effort at projecting from the evidence into the future and estimating as best as it can what the Deceased s prospects would have been. It is a process, however, that is necessarily uncertain. Those uncertainties for example include: (i) the possibility that the Deceased may have fallen ill or may have passed away, were it not for the accident, well before he came to the end of his working life. (ii) the possibility that the Deceased may have been unemployed. (iii) the possibility that the Deceased may not have passed his exams at first sitting or even finished his degree. (iv) the possibility that the Deceased may have changed careers. These are just a subset of possibilities that are encompassed in the uncertainties inherent in predicting the future. A multiplier of 22 is sought by the Plaintiff. A multiplier of 16 is sought on behalf of the Second and Third Defendants. I note that in High Court Action No. SCV-1063 of 1966, Christopher v Rampersad & Rampersad, (a the decision of the Honourable Justice Kangaloo (as he then was) delivered on 16 th July 2001,) a multiplier of 20 was used in respect of a plaintiff who suffered personal injuries who at the date of trial was 18 years old and would have a life expectancy of 70 years and a working life of 52 years if he were self employed. 13

14 In the case of Peter Seepersad & Theophilus Seepersad v Capital Insurance Limited Privy Council appeal delivered on 1 st April 2004, the appellant who suffered personal injuries was 37 years old at the date of trial. I note that at paragraph 18 the Privy Council took into account the current discount rate on treasury bills in Trinidad and Tobago as being between 5% and 6% and assessed a multiplier of 16 years in order to provide proper compensation to the appellant taking into account interest rates in Trinidad and Tobago and making some allowance for the contingencies of life. I take into account that in the Seepersad case the multiplier used was 16 for a plaintiff 37years old at the date of trial. I therefore note the following: (1) The Deceased in the instant case would have been 27 years old at the date of trial and a few weeks short of 28 years old at the date of assessment. (2) The multiplier of 16 in the Peter Seepersad case was for future loss of earnings, loss of earnings pre-assessment having been quantified. (3) I note also that interest rates in Trinidad and Tobago have been on the increase and are currently in the vicinity of in excess of 8%. (4) I consider that the earning capacity of the Deceased would not be speculative since although he had not yet commenced earning, the path which he chose (namely, qualification as a Mechanical Engineer) and the earnings thereof were matters not in dispute. (5) I also consider that the Peter Seepersad case and the case of Christopher v Rampersad are personal injuries cases whereas this is a fatal accident case. However, I find that there is no reason in principle why as the multiplier in respect of loss of future earning capacity for the lost years, the lost years being the same period of earning capacity as under consideration in respect of personal injuries, that guidance should not be obtained from the above two cases. The Deceased could have been expected to start working from July Accordingly, I find that the multiplier that I am prepared to use for post-assessment loss would be 18 on the basis that the Deceased would be 28 years, plus or minus a few weeks, at the date of assessment with a working life of 44 years at the time of death and 35 years from date of assessment. Special Damages Funeral Expenses, $4, Interest thereon at the rate of 12% per annum from 14

15 27 th January 1999, [date of incurring this expenditure and being out of pocket] of writ to date of judgment. Conclusion The award therefore would be as follows: In respect of the seven years from June 20 th 2001 [date estimated his earning ability would have commenced] to June 20 th 2008, loss of earnings $6, x 12 x 7 = $504, Post-assessment loss: $10, x 12 x 11 = $1,320, Loss of expectation of life: $20, Funeral expenses: $4, at 12% per annum from [date of incurring this expenditure and being out of pocket] January 27 th 1999 to 20 th June 2008 date of judgment. Interest on the pre-assessment portion of the loss of earnings $504, at the rate of 6% per annum from June 20 th 2001 to June 20 th 2008 the date of judgment. Dated the 20 th day of June 2008 Peter A. Rajkumar Judge 15