Pratap v Attorney-General of Fiji [1993] FJCA 24; Abu0014u.92s (20 August 1993)

Fiji Islands - Pratap v The Attorney-General of Fiji - Pacific Law Materials

IN THE FIJI COURT OF APPEAL

CIVIL JURISDICTION

CIVIL APPEAL NO. 14 OF 1992
(High Court Civil Case No. 951 of 1986)

HARI PRATAP
APPELLANT

AND:

THE ATTORNEY-GENERAL OF FIJI
OM PRAKASH
RESPONDENTS

Mr Nagin for the Appellant
Mr N. r N. Nand for the Respondents

Date of Hearing: 12th May, 1993
Date of Delivery of Judgment: 20th August, 1993

JUDGMENT OF THE COURT

This is an appeal by the plaintiff administrator from the assessment of damages and judgement of His Lordship Mr Justice Fatiaki given at Suva on 28th February 1992.

Essentially the proceedings on 7 August 1991 before the learned judge were an assessment of damages due to the estate of the deceased who is referred to in the Statement of Claim as Prahalad alias Daya Ram. The deceased was injured in a road accident on 6 September 1983 and eventually succumbed on 10 September 1983. Any other questions which might arise in the action were disposed of by the concession of liability by the defendant. This occurred in appearances before His Lordship on 4 June 1991.

It is unnecessary for this Court to do more than acknowledge the very careful and full summary of the matters which transpired between the date of the incident causing death and the assessment of damages. For the reasons detailed by His Lordship, the assessment of damages by him was one solely under the Law Reform Act Cap. 27, for damages to the estate consequent on the death of the deceased. At the hearing of the assessment of damages was greatly assisted by carefully researched and well presented arguments by counsel on behalf of their respective clients. This Court was similarly treated.

We feel it appropriate to say here that had the same efforts been made by whoever had the conduct of the case in the respective office of the parties, to prepare it for trial by collecting all available relevant evidence. His Lordship's task would have been much simple. We refer particularly to that part of the assessment referred to in the judgment as the "multiplicand" of the loss. His Lordship pointed to a reference in another case of assessment of damages where the circumstances of the evidence presented, led the Court to act on "little more than speculation." The present case is an excellent example of the type of case where, in the state of the evidence, the trial judge must "do the best he can."

The only witness called was the son of the deceased. His evidence (including cross examination) occupied about 4 pages of the record.

No useful records or books of account could be produced. No attempt was made to elicit evidence of any comparable earnings from like businesses in the general area.

When ones turns to the other issues determined by His Lordship he had little to guide him. No actuarial evidence was produced or its absence explained. No expectation of life figures were produced.

The grounds of appeal state

1. THE Learned Judge erred in law and in fact in fixing the multiplicand at $3,160.00.

2. THE Learned Judge erred in law and in fact in applying a multiplier of three.

3. THE Learned Judge erred in law and in fact in awarding only $1,500.00 for loss of expectation of life.

4. THE Learned Judge erred in law and in fact in taking into account the deceased's smoking habit in assessing loss of expectation of life.

5. THE Learned Judge erred in law and in fact in fixing interest at the rate of 3% when the prevailing interest rate is 13.5%.

6. THE Learned Judge erred in law and in fact in ordering interest to be effective from the date of issuance of the writ rather then from the date of death.

The hearing of the action took place on 7 August 1991. Both parties were presented by counsel. The learned trial judge reserved his decision. Judgment was given on 28 February 1992 for the plaintiff in the sum of 11730.00 plus interest at 3% from the date of issue of the Writ with costs to be taxed.

His Lordship gave a detailed and carefully reasoned decision. The facts and issues are very clearly set out. We do not feel it necessary to do other that to draw attention to the careful summary on each ground of appeal.

As to ground 1, this Court has no problem in accepting the figure of $3160.00 used by His Lordship as the multiplicand. It would be true to say that he did "the best he could" with the evidence to the advantage of the appellant. In a case such as this one should never overlook where the onus of proof lies.

Ground 2 of the Notice of Appeal alleged that His Lordship erred in choosing a multiplier of three.

Mr. Justice Michael M. Helsham
President Fiji Court of Appeal

Sir Mari Kapi
Justice of Appeal

Sir Edward Williams
Justice of Appeal

Abu0014u.92s