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Question 2 - Remedies

Pat can bring an action against Regional Corporation on behalf of her deceased son Michael's estate under Guyanese law. As a representative of the estate, Pat may recover special damages for Michael's private nursing home costs and funeral expenses. The estate can also claim general damages for Michael's pain and suffering before death, though the award would be nominal due to his in and out of consciousness. The estate could further claim damages for the loss of Michael's expected life, given he was 17 and displayed intelligence for a promising future.

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33 views

Question 2 - Remedies

Pat can bring an action against Regional Corporation on behalf of her deceased son Michael's estate under Guyanese law. As a representative of the estate, Pat may recover special damages for Michael's private nursing home costs and funeral expenses. The estate can also claim general damages for Michael's pain and suffering before death, though the award would be nominal due to his in and out of consciousness. The estate could further claim damages for the loss of Michael's expected life, given he was 17 and displayed intelligence for a promising future.

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Jensen
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LEGAL OPINION

This legal opinion is prepared in accordance with the laws of the Co-operative Republic of
Guyana and is intended to provide advice to Pat as to whether she may be able to recover any
compensation from Regional Corporation on behalf of her now dead son Michael.

ISSUES
1. Whether Pat can recover compensation from Regional Corporation on behalf of her
now dead son Michael
LAW AND ANALYSIS
1. The common law position is that where death occurs as a result of the actions of a
tortfeasor, no action can survive against said tortfeasor.
2. This position has however been altered by statute. Thus, Section 11 of the Law
Reform (Miscellaneous Provisions) Act (LRMPA) grants to the estate of a deceased
person, the right to pursue any legal action that the deceased would have been entitled
to bring prior to his/her death.
3. Further, by virtue of Section 4 of the Accidental Deaths and Personal Injuries
(Damages) Act (ADPIA), certain dependents within specific categories can initiate
legal action against the tortfeasor responsible for the injury and/or death.
4. Where Pat is concerned, she may be able to bring an action under Section 11 of the
LRMPA as a surviving representative of Michael’s estate. However, since the facts as
presented does not disclose her to be a dependent within the context of Section 4 of
the ADPIA she would not be able to pursue an action in this regard. If she is able to
establish herself as a recognized dependent under Section 4 of the ADPIA however,
she would be able to initiate an action in that regard.
5. It should be noted that the action to be brough is not for the death caused, but rather
for the personal injuries the deceased would have suffered as a result of the action of
the intended defendant.
6. In this regard, the estate of Michael would be entitled to recover such damages as he
could have recovered had an action been initiated on his behalf immediately
preceding his death (Andrews v Freeborough [1967] 1 QB 9.
7. Therefore, the estate would be entitled to recover damages under the category of
special damages to the extent that they are pleaded and proved (Perestrello v United
Paint Co. [1969] 3 All ER 479 at p. 485-886 per Lord Donovan) and, under general
damages for the resulting injuries which flowed naturally from breach of the
tortfeasor (Prehn v Bank of Liverpool (1890) LR 5).
Special Damages
8. The case of Lim Poh Choo v Camden and Islington Area Health Authority [1980]
AC 174 has established that a person suffering personal injuries is able to recover
special damages for cost expended on medical and nursing care.
9. The facts as presented suggests that the injuries caused Michael to spend seven days
in a private nursing home before he died. The fact that this was private care would
suggest that incurred expenses for such.
10. Since Michael would have been able to recover damages in this regard, his estate
would be similarly entitled to recover such.
11. Additionally, Section 11(2)(c) of the LRMPA makes provision for the recovery of
funeral expenses albeit that this was a cost the deceased would not have been entitled
to prior to death.
12. Thus, it is likely that special damages may be awarded for both the cost expended for
care at the private nursing home as well as for funeral expenses.
General Damages
13. In Cornilliac v St Louis (1965) 7 WIR 491 at p. 492, Wooding CJ asserted that in the
assessment of General Damages the court should take into account, inter alia, :

a. The pain and suffering endured; and


b. The loss of amenities suffered.
14. Losses recoverable under the head of pain and suffering is viewed by the court as
being subjective in that the quantum of damages that may be awarded depends on the
awareness of the pain and suffering (H. West and Sons Ltd v Shepherd [1963] 2 All
ER 625 at 633 per Lord Morris).
15. The facts disclose that Michael was drifting in and out of consciousness. It can be
inferred that whenever he was in a conscious state, limited a time as it might have
been, he would have been aware of his pain and suffering.
16. The court may take into account however, the fact that he was not totally conscious at
all material times preceding his death. It is submitted however that this may not
altogether preclude an award of damages under this head, but the award may be
nominal to account for the reduction in awareness of pain and suffering.
17. Where loss of amenities is concerned, H.West per Lord Morris (supra) has asserted
that the fact of unconsciousness does not preclude recovery of damages as the award
is made for the mere fact of being deprived.
18. The facts do not disclose anything about the habits and the things he enjoyed in life
which he would have been deprived of as a result of the injuries. It is suggested
however, that he was intelligent and had good prospects of winning a scholarship
which would have likely allowed propelled him to higher educational heights and to
eventually lead a successful career. This is however speculative and the fact is, he
cannot be said to have been deprived of that which he did not enjoy. While his
chances may have been good, it was not certain that he would in fact win the
scholarship.
19. An, additional award may also lie in relation to the shortening of Michael’s life
expectancy by virtue of the Negligence of the Regional Corporation and to that extent
an assessment must be made as to whether his life expectancy was significantly
shortened and whether the quality of his life would have been greatly reduced had he
survived (Flint v Lovell [1935] 1 KB 354).
20. If such is the case he would have been entitled to sue under this head of damage had
he survived and thus his estate may be able to sue for damages under Section 11 of
the LRMPA and as established in Rose v Ford (1937) AC 826.
21. When determining the quantum of damages, the court is likely to consider not only
Michael’s age but also his prospects of leading a predominately happy life (Benham v
Gambling (1941) AC 15).
22. The facts disclose that Michael was 17 years of age at the time of his death, which
may be seen as an age where there is some degree of certainty regarding his future. It
can be said that he had settled prospects and displayed intelligence which was likely
to propel him to lead a predominately happy life.
23. It should be noted that Because of the very nature of these categories of general
damages, the quantum of damages is incapable of precise mathematical calculation
and the court has to take into consideration a wide array of factors in arriving at a
value to ameliorate the loss of the claimant (Heeralall supra at p. 124) including
looking at awards made for similar losses or injuries in previous cases.
ADVICE
24. Pat is advised that she may be able to bring an action against Regional Corporation as
a personal representative of Michael’s estate by virtue of entitlement under Section 11
of the LRMPA.
25. Under such an action, on behalf of the estate it is likely that damages would be
recoverable in respect to cost expended for the private medical care as well as funeral
expenses under special damages.

26. Where General Damages is concerned the estate is likely to recover for pain and
suffering and loss of expectation of life. The award for loss of expectation of life are
likely to be proper sums in accordance with the considered factors; however, the
award for pain and suffering is likely to be nominal since Michael had been drifting in
and out of consciousness up to the time of his death.

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