Dolette Cyr Bartholomew v Kenton Hazzard
|04 April 2022
|GD 2022 CA 004
|Judgment citation (vLex)
| ECSC J0404-1
|Court of Appeal (Grenada)
The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal
The Hon. Mde. Louise Esther Blenman Justice of Appeal
The Hon. Mr. Mario Michel Justice of Appeal
THE EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
Civil appeal — Assessment of damages — Whether learned master erred in her assessment of damages — Aggravated damages — Injury to feelings — Whether the learned master erred in not awarding aggravated damages — Special damages — Whether the learned master erred in failing to make an award for special damages for the autopsy report — Whether the learned master erred in awarding only a nominal sum for the funeral expenses
Mr. Derrick Sylvester and Ms. Alicia Lawrence for the Appellants
Mr. Adebayo Olowu for the Attorney General
No appearance for the 1st – 5th Respondents
This is the judgment of the Court in respect of an appeal against the master's assessment of damages in a bifurcated trial consequent upon a judge's finding of liability of four police officers for the death of Peter Oscar Bartholomew (“Bartholomew”). Bartholomew died as a result of serious injuries inflicted on him at a police station. The Attorney General was found vicariously liable for their action.
At the assessment hearing, the master made various awards including loss of income of EC$937,463.39 and EC$10,000.00 for pain and suffering and loss of amenities. Nominal damages were awarded in the sum of EC$4,000.00 with interest thereon at the rate of 3% per annum from the date of the incident to the date of judgment on assessment, for funeral expenses. No award was made for aggravated damages, neither for special damages for an autopsy performed by Dr. Daisley, a forensic pathologist.
The appellants, the executors of the estate of Bartholomew, appealed the award of the master as it relates to (1) the failure to make an award for aggravated damages, and (2) the failure to award special damages of EC$53,400.00 in respect of an autopsy report; and (3) granting the sum of EC$4,000.00 as nominal damages for funeral expenses, a sum they consider unreasonably low, instead of the amount of EC$19,682.50 as pled.
The appellants seek an order from this Court that the order of the master in respect of special damages be set aside and substituted for an order that the appellants are awarded special damages in the amount of EC$19,682.50 for funeral expenses and EC$53,400.00 for the autopsy report, totalling EC$73,082.50 and aggravated damages in the sum of EC$100,000.00.
This appeal represents a challenge to the master's discretion in awarding damages and thus, engages the established principles governing appellate interference with such an exercise. The chariness of a Court of Appeal to interfere with the amount of damages commending itself to a judge doing the assessment, is well established. Appellate interference would require a conclusion that the judge or master conducting the assessment, erred in principle or made an award so inordinately low or so unwarrantably high, that it cannot be permitted to stand. 1
As Greer LJ stated in 2:
“In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.”
An Appellate Court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. It must be satisfied either that the judge, in assessing damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. 3
This Court will consider the appeal, mindful of the limitations indicated. In seeking to assail the master's award, the appellants contended on appeal that:
(a) The master misdirected herself in law in failing to apply the correct principles to determine whether an award for aggravated damages was appropriate in all the circumstances, in that the basis for refusing to award
(b) The master erred in failing to exercise her own independent judgment of the facts and evidence before her at the assessment hearing to determine whether the conduct of the respondents aggravated the injury caused to the deceased.
(c) The master erred when she simply concluded that the learned judge had not made any findings or pronouncements on the issue of malice, spite or ill will so that there is nothing that she could utilise to make an award of aggravated damages.
(d) The master erred in law in failing to award the special damages of US$20,000.00 in respect of the autopsy report of Dr. Daisley. The master failed to recognise that the autopsy report was a debt owed by the claimants, albeit not yet paid by them. The master failed to consider that the defendants did not deny the sum pleaded as special damages in the autopsy report in their defence but only sought to challenge the sum by way of submissions at the assessment hearing; and
(e) The sum of EC$4,000.00 awarded as nominal damages for the cost of the funeral was unreasonably low. The master failed to consider that the sum of EC$19,682.50 pleaded as special damages for funeral expenses was not denied by the defendants but was only challenged by way of submissions filed at the assessment hearing.
The ground of appeal relating to the failure to award aggravated damages falls to be considered. Before the master, the claimants contended that the deceased's estate was entitled to aggravated damages for the injury to feelings, mental distress, indignity, and humiliation that he would have suffered from being arrested and severely beaten without cause. Further, the conduct of the defendants demonstrated malice, spite and ill will and a total disregard for the life and liberty of the deceased. Counsel for the Attorney General had argued that the learned judge made no pronouncement that the servants of the Crown were actuated by malice, spite or ill will and as such this disentitled the claimants to an award for aggravated damages.
The master opined that aggravated damages are awarded in cases where the conduct of the wrongdoer is malicious and humiliating and is awarded to redress special injury to the innocent party's dignity or pride. The master went on to say that 4 identifies two components germane to the determination of an award for aggravated damages: first, exceptional or contumelious conduct or motive on the part of the defendant in committing the wrong and second, intangible loss suffered as a result by the plaintiff, that is, injury to personality.
The master stated that “… the sixth defendant [the Attorney General] argues that no pronouncement was made by the learned trial judge that servants of the Crown were actuated by malice, spite or ill-will and as such this disentitles the claimants] to such an award.” The master stated, “I am inclined to agree with counsel for the sixth defendant.” The master accepted the Attorney General's argument that the learned judge made no findings or pronouncements on the motives of the defendants or whether their actions were malicious or egregious. The learned judge made no comment on the actions of the defendants which would ground an award for aggravated damages. Further, the learned judge made no comments on the actions of the defendants which she could utilise to make an award for aggravated damages. Moreover, the claimants were not present in the interrogation room with the deceased and as such could not give evidence on what occurred during that time.
The learned master opined that although the injuries sustained appeared to have been extensive, this is not sufficient to warrant an award of aggravated damages.Further, in accordance with the authority of 5 which adjudged that it was ‘no longer appropriate to characterise the award for damages for injury to feeling as aggravated damages’ as well as the fact that these were pertinent considerations in the quantum of damages awarded for pain and suffering and loss of amenities, declined to make an award for aggravated damages
Mr. Sylvester, the appellants' counsel, submitted that the master abdicated her responsibility in assessing aggravated damages when she agreed with the 6 th respondent that the trial judge made no pronouncement that the respondents were actuated by malice, spite or ill-will thus disentitling the claimants to such an award. Counsel noted that the trial was bifurcated. The judge determined liability and forwarded the assessment of damages to the master; thus, the assessment of damages fell squarely within the domain of the master.
Learned counsel further submitted that was not authority for the proposition that aggravated damages must in every circumstance be included in general damages. Further, the learned master seemed to apply a universal principle in relation to ... thereby negativing the circumstances via which an award for aggravated damages
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