The Court of Appeal has ruled that damages can be assessed in the Supreme Court in the suit brought by Elaine Dotting against the Spanish Town Funeral Home because of its failure to pay the full settlement agreement before the agreed date.

Dotting threatened to sue the funeral home in 2003 for negligence arising from the badly decomposed body of her husband which was given to the funeral home for storage.

She claimed her husband, Clement Dotting, died on February 13, 2003 while she was abroad.

When she went to view the remains of her late husband, she discovered that it had deteriorated almost beyond recognition. She said she fell ill as a result of seeing the body, and produced a medical report to support her claim that she suffered nervous shock and emotional devastation.

She threatened legal action and discussion between the parties resulted in a settlement dated October 6, 2003 in which the Funeral home agreed to pay Dotting $500,000 in full and final settlement of all claims and damages on or before November 30, 2003.

The funeral home paid $250,000 but, up to January 2006, the balance was not paid and Dotting, who is being represented by attorney-at-law Georgette Scott, filed a suit on January 30, 2006 seeking damages in negligence against the funeral home. The funeral home applied to the Supreme Court to strike out the claim on the grounds that the settlement agreement extinguished any claim in negligence.

No strike

Mrs Justice Marva McDonald Bishop (acting) refused to strike out the claim and the funeral home appealed.

In dismissing the appeal, the Court of Appeal comprising Mr Justice Algernon Smith, Mr Justice Howard Cooke and Ms Justice Gloria Smith held that the trial judge was not in error in refusing to strike out the claim in negligence. The court said further that Dotting could have sued on the agreement, but opted not to do so and was therefore perfectly entitled to pursue her cause in negligence. It was the court's ruling that in any award of damages, the amount of $250,000 which had already been paid to Dotting must be taken into account.