Can the family claim if someone dies because of another’s negligence in Trinidad and Tobago?

When the claim exists

Where a death is caused by a “wrongful act, neglect, or default” which would have entitled the injured person to sue for damages if they had not died, the person who would have been liable is liable to an action for damages despite the death (Compensation for Injuries Act (Chapter 8:05), s 3). So if the deceased could not have succeeded, the family cannot either. No claim may be brought if, at the date of death, the deceased could no longer have sued because of a time limit or for any other reason, although where the bar was the personal injury time limit the Court has power to direct that this rule does not apply (Limitation of Certain Actions Act (Chapter 7:09), ss 6(1), 9).

Who can benefit

A “dependant” means a wife, husband, parent, grandparent, child or grandchild, and any person who is, or is the issue of, a brother, sister, uncle or aunt (s 2(1)). For this purpose (s 2(2)):

• an adopted person is treated as the child of the adopter or adopters only;
• relationships by marriage count as blood relationships, half-blood as whole blood, and a stepchild as a child;
• a child born outside marriage is treated as the legitimate child of the mother and the reputed father.

Can a common-law spouse claim?

Not in their own right under the Compensation for Injuries Act. The definition of “dependant” lists relatives by blood, marriage and adoption and does not include an unmarried partner (s 2(1)–(2)). A child of the relationship is a dependant, because a child born outside marriage is treated as the legitimate child of the mother and the reputed father (s 2(2)(c)). By contrast, for workmen’s compensation, a woman who lived with the workman as his wife for at least 12 months immediately before his death or incapacity, and depended wholly or partly on his earnings, can be a dependant (Workmen’s Compensation Act (Chapter 88:05), s 2(1)); see the page on injuries at work.

Who brings the claim, and by when

1. The action is brought by and in the name of the executor or administrator, for the benefit of all the dependants (Compensation for Injuries Act, s 4). How an administrator is appointed is explained on the pages on letters of administration and dying without a will.
2. If the executor or administrator has not brought it within 6 months of the death, any dependant may bring it in their own name, still for the benefit of all the dependants (s 4).
3. Only one action lies for the same death (s 5(2)). It must be brought in the High Court (s 9).
4. The action must be brought within 4 years from the date of death or, if later, the date of knowledge of the person for whose benefit it is brought (Limitation of Certain Actions Act, s 6(3)). The period is extended for a dependant who is under a disability, such as a child (ss 6(4), 11). The Court has power to direct that the 4-year limit does not apply, weighing the prejudice to each side, but it has a discretion and may refuse (s 9).

What can be recovered

The Court may award “such damages ... as are proportioned to the injury resulting from the death” to each person for whose benefit the action is brought, and divides the amount among them in shares it decides at the trial (Compensation for Injuries Act, s 7). These damages compensate each dependant for the financial loss the death causes them, such as the loss of support the deceased provided or could reasonably have been expected to provide. The loss of a reasonable expectation of financial benefit can be recovered even if no benefit had yet been received (Taff Vale Railway Co v Jenkins, a House of Lords decision that is persuasive in Trinidad and Tobago). Funeral expenses may be awarded if the dependants paid them (s 10).

In assessing these damages, the Court must not take into account payments on the death under a contract of insurance, National Insurance or similar social security benefits, payments by a friendly society or trade union for the relief of the dependants, or pensions and gratuities paid to the dependants under a law, pension scheme or agreement (s 8).

If the deceased was partly to blame for their own death, the dependants’ damages are reduced in proportion (Supreme Court of Judicature Act (Chapter 4:01), s 28(4)).

The estate’s own claim

Separately, the causes of action the deceased had at death survive for the benefit of their estate, and this is in addition to the dependants’ claim (Supreme Court of Judicature Act, s 27(1), (5)). The estate’s damages do not include exemplary damages, and are calculated without reference to any loss or gain to the estate resulting from the death, except that funeral expenses may be included (s 27(2)). If the deceased’s own 4-year period had not expired when they died, the personal representative has 4 years from the date of death or, if later, the date they first knew of the cause of action (Limitation of Certain Actions Act, s 5(3)).

What if the person responsible has also died?

If the person responsible has also died, a claim in tort against their estate is subject to a stricter rule. Unless proceedings were already pending at their death, the cause of action must have arisen not earlier than 6 months before their death, and proceedings must be taken not later than 6 months after their personal representative took out representation (Supreme Court of Judicature Act, s 27(3)). Where the liability was covered by motor insurance, the rights of the injured person, and of the family, are preserved against the insured person’s personal representatives as if the insured had survived, despite any other written law (Motor Vehicles Insurance (Third-Party Risks) Act (Chapter 48:51), s 16).