Ram v Rani [1992] FJHC 51; Hba0291.1991b (28 October 1992)

IN THE HIGH COURT OF FIJI
At Labasa
Civil Jurisdiction

CIVIL APPEAL NO. 2 OF 1991

Between:

SHIRI RAM
s/o Mohan Lal
Appellant

- and -

SUKH RANI
d/o Sahadeo
(as Administratrix of the Estate of Shiu Lal)
Respondent

Mr. M. Sadiq for the Appellant
Mr. A. Sen for the Respondent

JUDGMENT

This is an appeal against an award of $8,600 made by the Labasa Magistrate Court in favour of the estate of Shiu Lal who died as a result of injuries he sustained in a motor vehicle accident.

In dealing with this appeal it is well to bear in mind the dictum of Lord Wright when he said of the role of an appellate court in Davies and Another v. Powell Duffryn Associated Collieries Ltd. (1942) 1 ALL E.R. 657 at p.664:

"No doubt an appellate court is always reluctant to interfere with a finding of the trial judge on any question of fact, but it is particularly reluctant to interfere with a finding on damages."

and later:

"In effect, the Court, before it interferes with an award of damages, should be satisfied that the judge has acted upon a wrong principle of law or has misapprehended the facts, or has for these reasons or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency."

In the petition of appeal the appellant has advanced 6 grounds of appeal as follows:

"1. THAT the Learned Magistrate erred in law and in fact in accepting the age of the deceased SHIU LAL to be 50 years, when no Birth Certificate or any other proper document in support of it was tendered in Court.

2. THAT the Learned Magistrate erred in law and in fact in holding that the children were depended on the said deceased when no Birth Certificate or other documentary evidence was tendered in Court.

3. THAT the Learned Magistrate erred in law and in fact in rejecting the defence of contributory negligence, when there was ample evidence to that effect.

4. THAT the Learned Magistrate erred in law and in fact in accepting the income of the said deceased in the absence of proper proof thereof.

5. THAT the Learned Magistrate erred in law and in fact in not allowing any deduction under the followings:

(a) Accelerated benefits by succession.

(b) Law Reform (Contributory negligence and Tortfeasors) Act, Cap. 30.

6. THAT the verdict of the Learned Magistrate is unreasonable in view of the evidence tendered in Court."

In arguing the appeal however learned counsel for the appellant conceded that the grounds tended to overlap and they were dealt with and argued together. I propose to adopt a similar approach in this judgment.

Before dealing with the grounds of appeal however it is necessary to briefly outline the facts of the case as they appear from the pleadings, the evidence and the specific findings of the learned trial magistrate.

In this latter regard the learned trial magistrate has recorded in his judgment at p.85 of the record:

"... on the evidence that had been led in the case I came to the following conclusions:

1. The deceased Shiu Lal died on the 9th of November 1982 as a result of the injuries he had sustained in the motor accident that took place on or about the 5th day of October 1982;

2. That the plaintiff is the widow of the deceased Shiu Lal;

3. The deceased Shiu Lal was around 50 years of age at the time of his

death;

4. At the time of his death, his wife Sukh Rani and the children Om Prasad, Jag Prasad, Saras Kumari and Anil Kamal were his dependants."

Learned Counsel for the appellant whilst accepting that the appellant admitted in his pleadings being involved in an accident and that Shiu Lal had received injuries in the accident nevertheless sought to dispute the findings of the learned trial magistrate as to the date of the accident; the age of the deceased; the identity of his dependants; and the nature and extent of their dependency on the deceased at the time of his death.

I cannot accept that there is any merit at all in any of these grounds of complaint which are based on apparent discrepancies in the witnesses evidence in the Magistrates Court and/or a lack of documentary evidence such as a marriage certificate or birth certificates.

I note that similar complaints were raised in written submissions provided to the learned trial magistrate by the appellant's counsel (see: pp. 47 and 49 of the record) and these were fully dealt with and dismissed in the learned trial magistrate's judgment at pp. 83 and 84 of the record.

Even accepting that this appeal is in the nature of a rehearing and that the plaintiff bears the burden of proving his claim, nevertheless, in my view it is incumbent upon a party in civil proceedings to challenge any evidence whether documentary or oral which is not accepted and which counsel intends to ask the Court to disbelieve.

In this latter regard the record reveals that the Letters of Administration granted to the respondent and a typewritten transcript of the entire Magistrate Court record of proceedings in the appellant's earlier Traffic Case in which he was convicted of dangerous driving, were both admitted by consent (as Exhibits 1 and 2 respectively) and formed part of the evidence before the learned trial magistrate and was referred to by him in his judgment.

As for the Letters of Administration, Section 59(3) of the Succession, Probate and Administration Act (Cap. 60) provides inter alia that a sealed copy of a grant of administration "... shall be sufficient evidence of that grant and of the death and the date of death of the deceased without further proof."

As for the question of dependants and the extent of their dependency it will be noted that Section 2 of the Law Reform (Contributory Negligence and Tortfeasors) Act Cap.30 defines a "dependant" as:

"any person for whose benefit an action could be brought under the Compensation to Relatives Act;"

and this latter Act provides (so far as relevant) in Section 4:

"Every ... action shall be for the benefit of the wife ... and child of the person whose death has been caused."

Clearly then any "child" of the deceased is by necessary inference a "dependant" irrespective of age, marital status or residency.

In the light of the above and after carefully considering the evidence of the respondent and the deceased's son I am satisfied that there was sufficient evidence before the learned trial magistrate to support his earlier mentioned conclusions.

The learned counsel for the appellant disputed the learned trial magistrate's finding on the question of 'contributory negligence'. This issue insofar as it relates to the deceased was first raised in the written submissions provided to the learned trial magistrate.

It is no where pleaded in the Statement of Defence that the deceased was contributorily negligent as it should have been (see: Fookes v. Slaytor (1978) 1 W.L.R. 1293), but in any event the learned trial magistrate dealt with it and rejected it as unsupported by the evidence.

Learned counsel for the appellant however in the appeal argued that 'contributory negligence' was an irresistible inference from the presence of other uninjured passengers in the appellant's van and in support of this assertion reference was selectively made to the evidence in the appellant's traffic case and the observations of the magistrate in sentencing the appellant therein.

The submission however blithely ignores the evidence of the police officer who attended the scene of the accident and who testified without any dispute that all 4 occupants of the appellant's vehicle "... were injured and had been taken to hospital".

Clearly all of the appellant's passengers were in fact injured to some degree although not as seriously as the deceased who had the misfortune of being thrown off the appellant's vehicle. Additionally there is no evidence or suggestion that the deceased jumped from the appellant's moving vehicle or was in fact unsafely seated in the tray or was acting in any manner in complete disregard for his own safety.

Viewing the matter broadly and on commonsense principles the learned trial magistrate was perfectly entitled to form the view that he did when dealing with the question of the deceased's contributory negligence.

In all the circumstances the learned trial magistrate was correct in holding the appellant liable for the death of Shiu Lal. Grounds 1, 2, 3 and 6 of the appellant's grounds of appeal are accordingly dismissed.

Complaint is also taken as to the learned trial magistrate's findings as to the deceased's earnings which he estimated to be $1,200 per annum (being less than half the amount claimed) as a "justifiable figure" after concluding that the annual income compiled from the actual evidence led by the plaintiff was "an exaggeration".

It also appears that the learned trial magistrate used the commonly employed method of calculating damages in claims of this nature under the Law Reform Act, namely, of fixing a basic yearly figure for the deceased's probable earnings less a percentage amount for his own personal use and enjoyment (i.e. a 'multiplicand') and increasing it by a number of years purchase (i.e. a 'multiplier'), in this case the figure 10, being the learned magistrate's estimate of the deceased's 'life expectancy'.

On this latter aspect I have no doubt that the learned trial magistrate erred. True the 'multiplier' is a figure based primarily on a person's life expectancy but there are numerous other factors that it also seeks to reflect such as the number of working years of which the deceased was deprived, the fluctuations in the value of money, the uncertainties in life, 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 this latter regard it should be noted that most of the deceased's children would have or were married and would be or had already left their parents and were living independent lives of their own. Furthermore although in the absence of the deceased hired help may be required to work the paddy fields the area of the holding being cultivated had been halved to 2.5 acres.

Accordingly the 'multiplier' is reduced to 5 thus giving a gross figure of $(1,200 x 5) = $6,000 less 30% for the deceased's personal use making a total sum of $(6,000 - $1,800) = $4,200 for loss of earnings for the lost years. The estate is also awarded a sum of $800 for 'loss of expectation of life' which the respondent had sought and which the learned trial magistrate appears to have over-looked in his award. Funeral expenses in the sum of $200 as claimed and admitted by the appellant is also awarded making a total reduced award of:

$(4,200 + 800 + 200) = $5,200.

Subject to the foregoing variations the learned trial magistrate's judgment is confirmed and the appeal dismissed.

(D.V. Fatiaki)
JUDGE

At Labasa,
28th October, 1992.

HBA0291.91B