Singh v Young [1992] FJHC 39; Hbc0242.90 (23 September 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 242 OF 1990

Between:

JAIPAL SINGH
s/o Brij Mohan Singh (as Administrator of the
Estate of Satendra Kumar Singh)
Plaintiff

- and -

TED YOUNG
s/o Lui Young
Defendant

Mr. V. Maharaj for the Plaintiff
Mr. J. Singh for the Defendant

JUDGMENT

On the early hours of the morning of the 30th of July 1987 Satendra Kumar Singh (hereafter referred to as ‘the deceased') met his untimely death when his Mazda car reg. no: AW 972 was involved in a head-on collision with a van reg. no: BV 646 approaching from the opposite direction.

It is common ground that the accident occurred on the deceased's incorrect side of the road at a slight bend which he was negotiating shortly after crossing the Laqere bridge on Ratu Mara Road at Nasinu 7 miles whilst on his way to work in Nausori.

Given those circumstances in the absence of any evidence or explanation to the contrary it might be inferred that the deceased was wholly responsible for the accident.

The deceased's father Jaipal Singh brings this action however on behalf of the deceased's estate claiming that it was the driver of a third vehicle involved in the accident who was wholly to blame.

That driver it is common ground is the defendant Ted Young who was driving a late model Stellar car bearing reg. no. CB 436 immediately prior to the accident and heading in the same direction as the van which the deceased collided with.

In order to prove that the defendant was wholly responsible for the accident the deceased's father has called 2 witnesses, PC 991 Yogendra Ram who attended at the scene of the accident shortly after it occurred and who assisted the investigating officer in the taking of various measurements at the scene. The second witness was Dhirendra Dutt a dairy farmer who was a passenger in the rear of the van with which the deceased's vehicle collided.

Before dealing more fully with the evidence of the plaintiff's witnesses there is one other item of undisputed fact which may be conveniently dealt with now and that is that on the 27th of August 1990 the defendant was convicted in the Suva Magistrate Court on his own plea of ‘guilty' to an offence of Causing Death by Dangerous Driving arising out of the accident the subject matter of this present claim.

The plaintiff relies on this admitted fact for the purpose of proving the defendant's negligence. The defendant on the other hand whilst admitting the fact of his conviction denies its relevance to any issue in these present proceedings. I cannot agree.

Section 9 of the Evidence Act (Cap.41) reads:

"9 - (1)In any civil proceedings the fact that a person has been convicted of an offence by or before any Court in Fiji, shall ... be admissible in evidence for the purpose of proving, where to do so is relevant in those proceedings, that he committed that offence ...

(2) In any civil proceeding in which by virtue of this section a person is proved to have been convicted of an offence by or before a Court in Fiji -

(a) He shall be taken to have committed that offence unless the contrary is proved."

In Jai Chand and Others v. Jitendra Prasad and Mohan R.K. Prasad & Co. Ltd. Civil Appeal No. 51 of 1985 the Fiji Court of Appeal (unreported) had occasion to consider the meaning and effect of the above Section in the context of a negligent driving action (such as the present). At page 3 of the judgment the Court said:

"Put in context the plaintiff alleges the defendant's driving is negligent. Ordinarily he has the onus of proving that fact but if he proves the conviction he proves that the defendant was guilty of driving carelessly (and hence negligently). He may rest his case at that or he may call other evidence. Whichever way it happens the defendant will he held to have been negligent unless and until he proves, by whatever means he can, and on a balance of probabilities, that he was not negligent."

Then further at page 6 the Court of Appeal said:

"If the conviction was on a plea of guilty, that amounts to a confession of responsibility for the conduct in question - just as would proof that after an accident the defendant had admitted in front of a witness that it had been his fault. He would need to explain why he made the admission ..."

In this latter regard the defendant explained in his evidence how the charge had hung over his head for over 2 years and how his criminal case had gone to the High Court at his election and then was inexplicably returned to the Magistrate Court where owing to a lack of resources and not a small amount of frustration, he had pleaded guilty on the advice of his then solicitor and was fined $200 and disqualified for a period of 12 months.

I accept the defendant's explanation as probable and reasonable and accordingly am driven to consider the other evidence led by the plaintiff to prove his claim.

Constable Ram produced a rough sketch plan of the accident scene (Ex.P1) during the course of his evidence and although he didn't actually draw the sketch he was able to confirm that it accurately depicted the location and distance of the 3 vehicles involved in the accident and various other road features that were marked on it and I accept the plan as accurate and reliable in those respects.

I accept that he was unable to explain the ‘points of impact' marked on the plan by the Investigating Officer but I do not consider his evidence unreliable and I accept his evidence of the nature and extent of the damage which he saw on the vehicles as impartial and credible.

In cross-examination he said on the defendant's car he noticed slight impact damage to the front left door and panel and on the other 2 vehicles, namely, the deceased's Mazda car and the blue Ford panel van he noticed the front portions very badly damaged.

He also opined that the defendant's car over-turned when it struck the concrete kerb of the road.

The next witness called by the plaintiff was Dhirendra Dutt. He was a passenger in the rear of his father's blue Ford van BV 646 heading towards Suva. He described how he first noticed the defendant's car when it was a chain away from the van approaching at a very high speed. The car followed them for a minute and then proceeded to overtake the van in which he was a passenger.

He next saw the headlights of a vehicle approaching from the opposite direction and as the car which was overtaking them could not return to its correct side it collided with the on-coming car which then collided with their van on its incorrect side before going off the road and ending up in a drain.

In cross-examination he clarified that he had seen through the back window of the van, the defendant's vehicle approaching and then proceeding to overtake their van and he had turned towards the front when he heard his father say: "hey car!"

The collision between the defendant's vehicle and the on-coming Mazda occurred on the right side of the road (i.e. the defendant's incorrect side) and the impact was to the left front side of both vehicles. The two vehicles had merely glanced each other but the major impact was between their van and the deceased's Mazda car.

In re-examination he confirmed that there were 2 ‘impacts' the first, between the Stellar (defendant's car) and the Mazda (the deceased's car) and the second, between the Mazda (the deceased's car) and their van.

The defendant in his defence also gave evidence as to how the accident happened. He said:

"Just past the 1st quarry I overtook a blue van. Started then and towards the 2nd quarry I completed my overtaking and at the bend I was in the process of going back to my lane when I noticed the on-coming head lights approaching us directly in front very fast. I turned my steering to the left to avoid a head-on collision with him ... At that point my car was on the left side. The on-coming vehicle glanced me on the right side, my side of my car and on hearing that I pumped my brakes and we flipped over. The car the glanced me went past and collided with the van I had overtaken. The collision occurred with the van on the van's correct side of the road. My car flipped once and slid across the road on to the other side."

In cross-examination the defendant denied that he was overtaking on a bend or that he was travelling at a very high speed. He accepted however that the accident with his car occurred before he had completely returned to his correct lane and when half his car was on the left of the centre line and the other half on its incorrect side of the road. He also admitted that he had told the police during a caution interview recorded later that same morning that he was travelling at "80 kmph" before the accident and also "going at high speed".

Then in answer to a question from learned counsel for the plaintiff that he had created the ‘dangerous situation' the defendant replied:

"I admit I was partly to blame for the accident but he (the deceased) could have taken evasive action."

The defendant also called a passenger Wilisoni Loga who was sitting directly behind him in the rear seat of his vehicle and who confirmed that the accident had occurred after the defendant's vehicle had overtaken the van and was in the process of returning to its correct lane. The defendant's car was ‘glanced' as it was going towards the left.

He was adamant that the defendant's car was ‘glanced' on the driver's side and had sustained damage to the hood and right side of the car.

Having carefully considered the rough sketch plan (Ex.P1) and the testimony of the plaintiff's witnesses and that of the defendant and his witness, and bearing in mind their respective demeanours, I find that I prefer the version of the accident described by Dhirendra Dutt as the more probable and reliable one and I accept it.

In so finding I have borne in mind the various activities of the defendant during the course of a rather extended evening of drinking grog and then alcohol at 3 widely separated locations during which over a dozen bottles of beer were consumed and without the benefit of a meal.

I have also considered the various admissions of the defendant recorded in his police ‘caution interview record' (Ex.P5) and verified by him in his testimony and in particular his sworn admission that he was "partly to blame for the accident". I did not find his explanation in Court for his glaring omission to tell the police about his overtaking the Ford van credible and I reject it as a clumsy attempt to minimise his role in the accident.

Similarly I reject as patently untruthful his assertion that he overtook the van on a straight stretch of road and I accept the evidence of Dhirendra Dutt as confirmed by Ex.P1 that the accident occurred on the defendant's incorrect side of the road where there was a "a gradual bend".

In the result I find on a balance of probabilities that the accident was caused by the negligent driving of the defendant on the night in question.

The defendant has also raised in his pleading and in counsel's submissions the question of ‘contributory negligence' on the part of the deceased.

In that regard Halsbury’s Laws of England (Vol. 34) 4th Edtn. states at para.69:

"In order to establish this the defendant has to prove that the plaintiff's negligence was a cause of the harm which he has suffered in consequence of the defendant's negligence. The question is not who had the last opportunity of avoiding the mischief but whose act caused the harm. The question must be dealt with broadly and upon commonsense principles ... the test is whether the plaintiff in the ordinary plain commonsense of the business contributed to the damage."

In particular much was made about the width of the road where the accident occurred and how the deceased could have avoided the accident by taking evasive action. I cannot accept such a submission which is made with hindsight and which seeks to view the driving of a motor vehicle not "broadly" but rather through a slow motion ‘frame-by-frame' analysis.

In my view the driving of a motor vehicle is by nature a continuous motion with constantly changing variables to which minor and sometimes major adjustments must be made and often in a matter of seconds.

Accordingly, a driver suddenly faced on a bend with an on-coming vehicle at night on his side of the road travelling at speed has very little time (if any) in which to take evasive action. To suggest that such a driver in the event that he chooses an ‘incorrect option' is ‘contributorily negligent' does not with respect appear to this Court to be a submission based on "commonsense principles".

In Shindora v. The State Lautoka Cr. App. No. 28 of 1987 this Court said at page 11 of its judgment:

"... a driver who is overtaking a moving vehicle is prima facie executing a potentially dangerous manoeuvre. He is almost invariably encroaching on his incorrect side and accelerating sometimes in the face of on-coming traffic and often while not having a wholly unobstructed view of the road ahead. He therefore has a duty to ensure that he is in a position to safely complete the manoeuvre and properly control his vehicle so as to cope with any contingency that might arise without endangering other road-users."

Applying those principles to the facts of this case I am not satisfied that the deceased's driving was negligent in any way and I reject as baseless the defendant's claim of ‘contributory negligence'.

I turn next to deal with the question of damages. In this regard the plaintiff claims the following items of special damages:

(1) Clothing and watch- $ 155.00;

(2) Funeral Expenses- $2,000.00;

(3) Legal Fees - $ 850.00 and

(4) Mazda vehicle (AW972)- $7,000.00.

As to (1) The plaintiff testified that on the night of his death the deceased was dressed in shirt and trousers and carried a bag in which he had some clothes. After his death he received none of the deceased's clothings or watch "... just an empty bag". In this regard I allow the plaintiff's claim up to an amount of $100.

As for ‘funeral expenses' the plaintiff testified that he arranged his son's cremation and performed religious ceremonies for 13 continuous nights and then after 6 months and at the end of 12 months. He estimated that he would have spent about $2,000. He was unable to provide any details (not surprisingly perhaps) but in any event he confirmed that his family members contributed money for the funeral expenses. Under this head I would allow a nominal sum of $350.

Similarly and somewhat unacceptably the plaintiff was unable to produce any evidence to support any payments he may have made to his solicitor for services rendered in obtaining the necessary Letters of Administration of the deceased's estate which I note was valued at a very lowly $10! In the circumstances learned counsel for the defendant describes this claim (with some justification) as "extreme exaggerations". Under this head of special damages recognising the fact that Letters of Administration were obtained I award a sum of $250.

Then there is the deceased's car which was a complete ‘write-off' in the accident and for which the plaintiff recovered a paltry $100 from the wreckers. I note that the vehicle was bought as a second-hand car and was involved in an accident shortly after it was acquired. It had been used by the deceased for about a year before his death and had had some improvements carried out to it. In the absence of a reliable valuation or any details and costings as to the improvements carried out to the car and mindful that the car was allegedly purchased for $6,000 of which the plaintiff and his wife contributed a proportion I am content to treat this item very conservatively and accordingly award a sum of $1,800 for the loss of the deceased's green Mazda vehicle reg. no: AW 972.

In summary I make the following awards of special damages:

(1) Clothing and watch-$ 100.00

(2) Funeral expenses-$ 350.00

(3) Legal Costs-$ 250.00

(4) Motor vehicle (AW972) - $1,800.00

$2,500.00

The plaintiff also claims general damages for the benefit of the deceased's estate under the Law Reform (Misc. Provisions) (Death and Interest) Act (Cap. 27) and for the benefit of 3 named relatives (including the plaintiff as the father of the deceased) under the Compensation to Relatives Act (Cap. 29). This would appear to be a very common form of pleading in cases of this type that comes before the Court and is clearly based on the provisions of Section 2(5) of the former Act.

However it is helpful for counsel drafting claims in such cases to bear in mind the dicta of Marsack J.A. when he said in Somari v. A.G. and Mohammed F.C.A. Civil Appeal No. 26 of 1980 at p.4 of his lordship's judgment:

"Some confusion arises from the fact that the appellant is claiming in two capacities: under the Law Reform Ordinance, Cap. 20, as administratrix of the estate of the deceased and under the Compensation to Relatives Ordinance Cap. 22 in her personal capacity. It is clearly established that she is not entitled to recover damages amounting to a total of what could be claimed under each of the Ordinances. If, for example, she is held entitled to a sum under the Law Reform Ordinance then that sum must be taken into account in assessing her entitlement under the Compensation to Relatives Ordinance."

Later in refusing to assess damages seriatim under both Ordinances his lordship said:

"... there would be no point in making an award under this heading as the amount of it would necessarily have to be deducted from the damages payable to her under the Compensation to Relatives Ordinance."

Bearing the above dicta in mind and having regard to the manner in which learned counsel for the plaintiff has treated the claims under the respective Acts and the amounts calculated in his written submissions, I propose instead to adopt the commonly employed method of fixing a basic yearly figure for the deceased's probable earnings (less an amount for his personal use and enjoyment) (i.e. a ‘multiplicand') and a number of years purchase (i.e. a ‘multiplier').

It is common ground that at the time of his death the deceased had attained 29 years and was a regular soldier in the Fiji Military Forces earning a nett fortnightly wage of $75.48.

Although he was never married, at the time of his death he lived in a ‘de-facto' relationship and had a daughter Royneel Sonia Singh who was born on 30.6.86 (almost 13 months to the day of the deceased death).

It is also common ground that at the time of his death the deceased and his ‘de-facto wife' and child lived rent-free with his parents and as one would expect and as the plaintiff testified, contributed towards the household expenses by "... buying the groceries".

The plaintiff also claims that the deceased gave separately to him and his (plaintiff's) wife, on average, $20 every fortnight, sometimes more, sometimes less and although, if true, this represents over half the deceased's fortnightly wages, the deceased ‘de facto wife' also worked in a garment factory and undoubtedly assisted her ‘husband'.

On a nett fortnightly wage of $75.48 the deceased who was in regular employment would have received a nett annual wage of $1,962.48. Allowing for personal and vehicle expenses of 50% I estimate that the deceased would have contributed approximately $900 towards his parents and the family's total living expenses per annum and I would accordingly adopt that figure as the appropriate "multiplicand".

I am of course mindful that had the deceased lived there is every likelihood that he would have married and even without promotions his wages would have increased over time. Indeed Filipe Mika the deceased's paymaster at the relevant time testified that since the deceased's death soldiers have received 2 wage increases which in his opinion would have raised the deceased's nett wages (at the time of trial) to "... roughly $90 per fortnight".

Furthermore bearing in mind the plaintiff's declared intention to eventually leave his property to the deceased (his only remaining son in Fiji) there is every likelihood that the deceased would have continued to live with his parents for some considerable length of time and continued to contribute towards the household's living expenses and he may even have taken on additional financial responsibilities for the repairs and maintenance of the house which the plaintiff describes as "... a very old wooden house worth nothing".

I am also not unmindful that since his death the deceased's ‘de-facto wife' and daughter have emigrated to New Zealand and although learned counsel for the defendant referred to the "welfare benefits" payable in New Zealand, in the absence of any evidence as to their eligibility I do not consider that to be a relevant factor. In any event it is my view that the deceased as the father has the primary responsibility of providing for his daughter.

I turn next to the assessment of an appropriate "multiplier" which ought to be based upon judicial precedents in similar cases and a consideration of the number of working years of which the deceased has been deprived, the numerous and various perils of uncertainties in life, including the prospect of remarriage of the deceased's ‘de-facto wife', the fluctuations that do occur in the value of money and the fact that the damages awarded will be paid as a capital sum from which interest may be derived during the period of dependency.

In Josefa Sigavolavola and Anor. v. Gyan Mati F.C.A. Civil Appeal No: 85 of 1985 in which the deceased a carpenter was 30 years of age with a wife and 3 dependant children, the Court of Appeal in dealing with the question of the appropriate "multiplier" said at p.7:

"In assessing damages the Court is required to evaluate future possibilities and chances, and assess what will happen in the future, or would have happened but for something which happened in the past. The result can only be an estimate which, ... should fall within a permissible range."

and later at p.8 of its judgment the Court said of the ‘permissible range' in that case:

"In our opinion a multiplier of 14, 15 or 16 could have been used in the present case."

Bearing the above factors in mind and mindful that the plaintiff had his own capital resources and was not entirely dependant upon the deceased during the latter's lifetime, I assess a reasonable "multiplier" in this case to be fourteen (14).

Accordingly I award the deceased's estate under the Law Reform (Misc. Provisions) (Death and Interest) Act (Cap. 27) general damages in the sum of $(900 x 14) = $12,600 plus $1,500 for ‘loss of life' and $2,500 in ‘special damages' making a grand total of $(12,600 + 1,500 + 2,500) = $16,600 together with interest at the rate of 5% per annum with effect from the 17th of July 1990. The plaintiff is also to receive costs of the action to be taxed if not agreed.

Finally I make the following order dividing the damages amongst those entitled as follows:

To the deceased's father - $8,000;

To the deceased's mother - $4,000; and

To the deceased's daughter - $4,600.

This latter sum is to be paid to the Public Trustee to be invested until such time as the deceased's daughter shall turn 18 years of age.

(D.V. Fatiaki)
JUDGE

At Suva,
23rd September, 1992.

HBC0242.90