Pratap v Attorney-General of Fiji [1992] FJHC 2; Hbc0951j.86s (28 February 1992)

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

IN THE HIGH COURT OF FIJI

At Suva

Civil Jurisdiction

CIVIL ACTION NO. 951 OF 1986

BETWEEN:

HARI PRATAP
s/o Daya Ram
Plaintiff

AND:

THE ATTORNEY-GENERAL OF FIJI
First Defendant

AND:

OM PRAKASH
s/o Dud Nath
Second Defendant

Mr. H. Nagin for the Plaintiff
Mr. N. Nan the Defendants

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JUDGMENT

In this case the plaintiff claims as administrator of his late father's estate for damages under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27 and also under the Compensation to Relatives Act Cap. 29.

The father died in a motor vehicle accident on the 10th of September 1983 when the stationary motor vehicle in which he was in was violently struck by a motor vehicle belonging to the Fiji Government whilst it was being driven by the 2nd defendant along Edinburgh Drive.

Liability is admitted by the defendants and the only remaining issue is the question of n of the quantum of damages. However before dealing with the evidence in the case it is well to remind oneself of the basis upon which awards are made under the respective Acts and which was dealt with by Speight J.A. when he delivered the judgment of the Fiji Court of Appeal in Daya Ram v. Peni Cara and 2 Others Civil Appeal No. 59 of 1982 and in which the following passages occur at p.4 of the cyclostyle judgment:

"It is essential to remember throughout oconsideration of this topic the basis upon which such an award (for 'lost years') is made. ade. It is not an award to dependants for the loss of support which they would have been entitled to expect had there not been the death of the breadwinner. Such claims are brought in Fiji under the Compensation to Relatives Act (Cap.29). In such cases, in this and other jurisdictions, such a claim is calculated by examining the amount of money which dependant relatives had been receiving in the past for their support and which they might legitimately have expected to have received in the future provided the deceased had had the means to make such payments and could have been expected to continue making them. This was a purely mathematical calculation of how much he would have been worth in money terms to his dependants for what ever was the expected period of dependency."

and in respect of claims under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27 the learned judge said:

"The claim is brought under sec2 and is for the benefit of the estate in respect of all causes of action which the deceaseceased had at the time of his death. In the case of a person who is injured an action lies by him in tort for such damages as will represent in money terms his loss of future earnings; how he would have spent those earnings in the future is irrelevant to such a claim. By the statutory provision of Cap. 27 in the case of a man who is injured and dies the cause of action for the lost years vests in the deceased when he is injured and in the case of instantaneous death immediately before his death, and after death passes to his personal representative."

In this case although a claim has been made under the Compensation tatives Act the written tten submissions of learned counsel for the plaintiff seems to accept that "... the claim under the former Act (i.e. Law Reform) is more important then under the latter Act (i.e. Compensation to Relatives) because most of the deceased's children were not dependant as such (sic) were not too young." Furthermore counsel concedes that "Damages under (the) Compensation to Relatives Act would not exceed the damages under the Law Reform Act."

The plff's pleading on this score also left much to be desired. Section 9 of the Compensation to Relatives Act requires a plaintiff:

"... to deliver to the defendant or his barrister and solicitorether with the statement of claim, full particulars of the the person or persons for whom and on whose behalf the action is brought ..."

In this regard there are 4 named children in the Statement of Claim as follows:

"Chandra Wati (daughter, born 26.10.60)

Bigyan Pratap (son, born 1.12.62)

Andaraj Wati (daughter, born 10.2.65) and

Pratap Singh (son, born 2.8.66)"

At the trial however evidence was led that the deceased had six children incl including the plaintiff and the deceased's wife living with and presumably dependant on him at the time of his death and although letters of administration were granted to the wife in July 1985 no proceedings were instituted by her. Indeed these present proceedings were instituted by the plaintiff almost 3 years to the day when the deceased died just several days prior to the expiration of the limitation period (See: Section 8).

It is noteworthy that at the time the actas first instituted in 1986 the deceased's wife had had also passed away and the children for whose benefit the action was started were aged (in descending order) 26 years, 24 years, 21 years and 20 years. In addition, since then, the two daughters have married (in 1987) and left the family home and a son has migrated to the U.S.A. (in 1989) leaving the youngest (now 25 years and married) and employed on a casual basis as a part-time bus driver, living with the plaintiff and his family at Viria.

The evidence as to "dependency" was extremely sparse but it is common ground that immediately prior to the deceased's death all the children lived with and helped their father in various ways in the running of the family shop and farm at Viria as would be expected of able-bodied family members who lived in the same household.

It is also common ground that after the father died the children with the help of casual labourers continued to operate the family shop and farm with varying degrees of success right up to the present moment.

Whilst I do not doubt that the absence of the father had an immediate impactmpact on the profitability of both concerns equally, I do not accept that any "dependency" of his children would have continued for any appreciable length of time, indeed, the converse is the more likely as the father got older and the children took on a greater responsibility for the running of the shop and farm.

Compensation to Relatives Act Cap. 29.

I turn next to consider the question of damages under the Law Refot Cap. 27.

The evidence in this case was provided exclusively by the plaintHe testified that his fathefather was 54 years at the time of his death and was in good health. He suffered no ailments such as diabetes or blood pressure and was a strong man who worked on his 21 acres farm in Viria besides running a small grocery shop.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Even accepting that the father had no serious ailments the fact is that on the plaintiff's own admission his father was a smoker up till his death and had been since the witness was 10 years of age (i.e. a period of some 21 years). He also drank grog at times.

His father's earnings from the shop averaged $500 per week for total sales from which he made a gross profit of $125.00 which reflected a nett profit figure of $75.00 per week. In addition the farm produced a commercial crop of about 12 to 13 tons of dalo annually which was sold to middlemen at Suva for $250 per ton. The total combined annual income from both sources was estimated at about $(3,900 + 3,000) = $6,900.

The Statement of Claim however merely avers that the deceased "... was self-employed as a farmer/shopkeeper earning $100.00 per week". This gives an annual income of $5,200 from both sources. Whether this was nett or gross is not disclosed.

If I may say so the above figures are no more than a poor "guesstimate" of the father's income at the time of his death. No books of accounts, receipts or invoices were produced to substantiate any of the figures as might be expected would be kept and maintained by a retailer with such a substantial average weekly turn-over or of a farmer engaged in the commercial production of a cash crop.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Neither did I find the plaintiff's "excuse" for the absence of any records an acceptable one given that the father would have had to file income tax returns and given that invoices and receipts would have been readily available from the suppliers of stock to the shop. Needless to say the plaintiff himself helped run the shop and farm after his father passed away but presumably those records (if any) were also taken away by their accountant when he migrated.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Indeed I was left with the distinct impression that the plaintiff has kept his evis evidence on this aspect purposely vague in the hope that such evidence as was given would be unquestioningly accepted by the court faced with the already difficult task of assessing damages in circumstances which have been described elsewhere as "... little more than speculation". He alone must bear the consequences for his failure.

In the circumstances doing the best I can on the evidence placed before me and bearing in mind the written submissions of counsel which I found helpful, I make the following assessments:

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Income from shop (at $50 nett per week): $2,600

Income from farm (8 tons per annum at

$200 per ton nett) : $1,600

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Total nett income : $4,200

Less personal expenses of the deceased

(at $20 per week) : $1,040

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Therefore nett surplus : $3,160

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(b)Multiplier

In this case having regard to the age of the father and the likely ever-decreasing sing dependency of his children on him I consider that a multiplier of 3 would be appropriate in all the circumstances.

The estate is also entitled to an award for loss of expectation of life and although learned counsel for the plaintiff suggests a figure of $3,000, I cannot agree having regard to the deceased's smoking habit. Accordingly I award a sum of $1,500 under this head of damages for the sudden pre-mature curtailment of the deceased's life.

As for special damages the plaintiff claims fl expenses of $750 which inch included such things as a coffin box; clothes; donations to the pundit; food and the observance of Hindu religious rites associated with the burial of the deceased. Again no supporting evidence was provided but on the other hand the deceased met his death in Suva giving rise to unexpected transportation costs. I allow the full extent of the plaintiff's claim under this head and award $750.00.

Judgment is accordingly entered forplaintiff in the following sums:

(1) Special damages:.00

(2) Loss of expectation of life :$1,500.00

(3) Loss of earnings for 'the lost years': $9,480.00

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: $11,730.00

together with interest which I fix at 3% with effect fre date of the issuance of t of the writ. The plaintiff is also to have the costs of the action to be taxed in default of agreement.

D.V. Fatiaki
JUDGE

At Suva,
28truary, 1992.

HBC0951j.86s