Lotherington-Woloszyn v Savou [1995] FJHC 131; Hbc0489j.93s (31 July 1995)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 489 OF 1993

BETWEEN:

HEATHER DIANNE LOTHERINGTON-WOLOSZYN
as administratrix of the estate of
JAROSLAW WLODZIMIERZ LEON WOLOSZYN,
deceased
Plaintiff

AND

MAIKELI SAVOU
of Navua
Defendant

P. Knight for the Plaintiff
R. Krishna for the Defendant

Dates of Hearing: 6th, 7th, 9th March, 21st April, 5th May,
6th and 13th June 1995
Date of Judgment: 31st July 1995

JUDGMENT

This action and two related actions No. 529 of 1993 (Maya Woloszyn) and No. 530 of 1993 (Heather Dianne Lotherington-Woloszyn) arise out of a motor vehicle accident which occurred at approximately 5.00 p.m. on 12th May 1991 at Nakaulevu between Deuba and Navua on the Queens Road. The vehicle registered No. BZ067 in which the Plaintiff and Maya Woloszyn were passengers was being driven by Jaroslaw Wlodzimierz Leon Woloszyn, the husband of Heather Dianne Lotherington-Woloszyn and father of Maya Woloszyn and was travelling towards Suva.

The Defendant was the driver of motor vehicle registered No. BG269 which at the material time was stationary in an angular position in the centre of the road facing towards the entrance of the Viwawa Road. The driver of the motor vehicle BZ067 a Suzuki 4WD with a soft top and an engine capacity of under 1000 cc died instantly. The Plaintiff and her daughter Maya were also injured and they have made separate claims as stated above for personal injuries.

The damages in action No. 529 of 1993 (Maya Woloszyn) have been agreed at $10,000.00 and those in action No. 530 of 1993 (Heather Dianne Lotherington-Woloszyn) at $5,000.00 subject to the determination of liability. The vehicle driven by Jaroslaw Wlodzimier Leon Woloszyn (whom I will henceforth refer to as "the deceased") was badly damaged. The Defendant's vehicle received damage mainly to the front off side, head light, bonnet, mudguard and fender. A photograph was tendered in evidence by the Defendant and is exhibit D.3.

THE PLEADINGS

In her statement of claim the Plaintiff states that she is the widow and administratrix of the estate of Jaroslaw Wlodzimier Leon Woloszyn, Letters of Administration having been granted to her on 19th December 1991, and she brings this action on behalf of the estate of the deceased under the provisions of the Compensation to Relatives Act Cap. 29 and under the provisions of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27.

In paragraph 3 she alleges that the collision was caused by the Defendant and gives the following particulars:

"(1) Driving on or crossing into his incorrect side of the road and into the path of the motor vehicle driven by the said deceased.

(2) Failing to keep any or any proper look out or to observe or heed the presence or approach of the motor vehicle driven by the said deceased.

(3) Driving too fast.

(4) Failing to apply his brakes in time or at all or so to steer or control his motor vehicle as to avoid the said collision."

The Defendant in his Statement of Defence does not admit the Plaintiff's allegations of negligence and pleads that it was the negligence of the deceased which caused and/or contributed to the collision and then gives the following particulars:

"(1) Driving at a speed which was excessive in all the circumstances of the case.

(2) Failing to see or notice in time the Defendant's stationary vehicle which was lawfully on its correct side of the road.

(3) Driving into the path of the Defendant's vehicle.

(4) Failing to stop, stop in time, slow down, swerve or so manoeuvre his vehicle so as to avoid the said collision."

The Plaintiff further pleads that the Defendant was prosecuted and convicted at the Suva Magistrate's Court on 4th August 1993 of the offence of causing death by dangerous driving arising out of the collision. The Plaintiff says that this conviction is proof and/or relevant to the issue of negligence which she alleges in paragraph 3. She then pleads that as a result of these matters the motor vehicle registration No. BZ067 was damaged beyond repair and her husband was killed and thereby lost the normal expectation of life and future earnings and that his estate and his dependants have thereby suffered loss and damage. She gives the following particulars pursuant to the statute:

(1) The Plaintiff then aged 42 years, widow of the deceased;

(2) Maya Woloszyn born on 6th April 1988 an infant daughter of the deceased.

Prior to his death the deceased was aged 37 and was employed by the University of the South Pacific as a lecturer at an average monthly net earning of $1,742.59.

The Plaintiff then provides the following particulars of Special Damages:

(i) Funeral expenses and cost of tomb stone - $2,706.50.

(ii) Pre-accident value of the deceased's motor vehicle less salvage value - $5,100.00.

She claims:

(i) Damages on behalf of herself and Maya Woloszyn as dependants under the Compensation to Relatives Act Cap. 29.

(ii) Damages for the estate under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27.

THE EVIDENCE

It is not disputed that the subject accident occurred on a straight road which is tar-sealed. There was a light drizzle. The road surface was wet. It was cloudy and grey. The time was approximately 5.00 p.m. I shall deal first with the evidence of the Plaintiff and Defendant because it contrasts to some extent and I shall then summarise the evidence of Professor Andrew Horn who is the Professor of English and Head of the Department of Literature and Language at the University of the South Pacific.

The Plaintiff stated that she is a Senior Lecturer in Education at the University of the South Pacific. On Sunday 12th May 1991 she, her husband and their then three-year old daughter Maya drove to the Pacific Harbour Hotel and left Pacific Harbour shortly before 5 p.m. to return to Suva. Her husband was driving their Suzuki 4WD vehicle. The Plaintiff was seated in the passenger seat and her daughter Maya was sitting on her lap. Both of them were wearing the same seat belt. The deceased was wearing his seat belt. They were travelling at about 80 kmph before the accident and the Plaintiff thought the speed limit was 80. There was not much traffic on the road when suddenly she saw a car come half way into their lane. She felt her husband take evasive action by swerving to the left. She said she thought they had got past this car when she heard a loud crash. She remembered her head hitting something. As the Suzuki rolled over she lost consciousness and "came to later" in another vehicle. She thought the car was either making a right hand turn or a 'U' turn. She said that when she first saw the car she could not say how far away it was from them but said it would have been a few seconds driving time. She said it seemed to her the car was about half way between the white line and the left hand side of the road (i.e. the Suva side). The collision occurred on the Plaintiff's side of the road on about the middle part of their lane. She did not know how the car got to its position at all unless the driver had turned suddenly. She said she felt very acutely that her husband was not there and a day later she was told by a colleague of her husband that he had been killed in the collision. She said that the Suzuki was badly damaged and that it was sold for salvage for $1,400.00. Her husband had bought the vehicle in December 1990 while the Plaintiff was teaching at a Summer School in Honiara and when the Plaintiff returned before Christmas he told her that he had bought the vehicle for $6,500.00. She then gave particulars of her special damages.

She said that her husband was aged 37 at the date of his death and she was his second wife. He had two other children aged 12 and 15 on the date of his death who are living in Poland. He was paying them maintenance of $US776.24 in 1991.

Her husband was in good health and had no chronic illness or particular medical complaints. At the date of his death the Plaintiff was aged 40.

She said her husband had been working for the University of the South Pacific as a Lecturer in the Department of Literature and Language since September 1989. Before joining the University of the South Pacific he had been a permanent staff member of Humber College, Toronto in Canada and held two Masters Degrees, an M.A. from the University of Lodz in Poland and an M.A. in Linguistics from the University of Lancaster in England. He also had a Diploma in either education or linguistics from the University of Lodz. His first Masters Degree was in English Philology.

He had enrolled as a Ph.D. student at the University of the South Pacific which degree would normally take four to five years to obtain. At the time of his death he had completed about six months of this course. Had he acquired his Ph.D. he would have qualified for at least appointment as a Senior Lecturer and for other higher degrees.

She then gave evidence of her husband's earnings and said at the time of his death he was earning approximately $1,742.00 net monthly salary which took into account a gratuity and merit loading.

The merit loading was a percentage of his salary and he received it because he was considered to be above average.

The Plaintiff said that their future plans were to complete their present three year contracts which were renewable for another three years. After her husband had completed his Ph.D. they planned to move to other jobs. The Plaintiff herself is a Doctor of Philosophy which she obtained in 1988 at the University of Toronto. She then tendered over objection from counsel for the Defendant various newspaper advertisements for positions for which she said her husband would have been eligible to obtain. These were in Australia, New Zealand and Canada and all offered salary higher than the deceased would have obtained here.

She said that the retiring age for a University Lecturer is 65.

She then gave some details of household expenses at the time of her husband's death. She said his demands were few. He played sports and was a canoeist. He did not smoke. They drank a few bottles of wine a fortnight and also bought the occasional carton of beer.

She said that they put money from their earnings into a joint bank account so that they both paid for electricity and the telephone, the Plaintiff paid the rent of their accommodation.

The deceased was also a computer specialist so he spent money on computers and he hoped to get their daughter into this field. The Plaintiff said that they did not save much money each fortnight and that at the time of his death there was between $4,000-$5,000 in their account. Her husband was a member of the Fiji National Provident Fund for which a deduction was made for his contribution and the University also contributed 10 percent of his salary.

She then referred again to her husband's professional qualifications and said that both she and her husband were highly specialised. His particular speciality was computer assisted language learning. Her husband had qualifications and experience in English Linguistics and taught English as a second language in adult education and educational technology.

She said she had married the deceased on the 30th of June 1984.

When she was cross-examined the Plaintiff denied that her husband was driving any faster than 80 kmph. She did not agree that there was a speed limit of 60 kmph at the scene of the accident. She said that she did not see the Defendant's vehicle for any longer than 2 to 4 seconds before impact because it was not there.

Then at the request of counsel for the Defendant the Plaintiff drew a sketch - Exhibit D.1 showing her recollection of where the Defendant's car was at the point of impact. I note here that this is broadly similar to that of a diagram prepared by the Police after the accident except that in the Police diagram the Defendant's vehicle is shown much further over the centre line of Queens Road than the Plaintiff showed in her sketch.

She was asked what evasive action her husband took before the accident. She said she could not specify this because everything happened too fast. She could only say that her husband turned to the left and said as she recalled, "Now what is this?"

She could not say confidently whether he changed gear or began to apply the brakes. She said it was not true to say that it all happened in a flash and therefore she could not say anything about how the accident occurred.

It was put to her that her husband had been driving at an excessive speed. The Plaintiff denied this and said that their vehicle was too small to drive at an excessive speed. I accept that comment.

She said that in her opinion the Defendant had crossed in front of their vehicle when the distance between their vehicle and the Defendant's was insufficient and unsafe to enable the deceased to brake normally.

She said that as a driver there was no normal time for her husband to brake therefore he chose to turn to the left around the car which was obstructing their passage.

When the Defendant gave evidence he said that he was now aged 65 and was retired. His last position was that of a clerk at Pacific Harbour for the Pacific Harbour Development Company. Shortly before the accident he and his wife who is a school teacher at Rampur College at Nakaulevu had stopped their car just before reaching Viwawa Road. The Defendant parked the car on the side of the road facing towards Pacific Harbour so that they could decide where they would go first. They had parked on the correct side about three chains from Viwawa Road. They decided to go to Viwawa Road. When they reached the junction of Queens Road and Viwawa Road the Defendant turned on his right-hand indicator lights and stopped at the junction on the left-hand side of the white centre line. His indicators were still on. The reason why he stopped was because he saw some cars coming towards him - a car followed by a bus travelling from Deuba to Navua.

When these two vehicles passed he could see the deceased's vehicle near the Rampur College so he decided to turn into Viwawa Road. He began his turn but did not get into Viwawa Road because just as he was turning towards the white line on his right his wife who was sitting in the left front passenger seat and he realised that the deceased's vehicle was just near them. At that instant he said he applied his brakes. When he saw the deceased's vehicle it could have been ten yards from him. It was coming at a very high speed even though the speed limit at that place was 60 kmph. The Defendant said that he knew this because there was a sign beside the road just before the Rampur College. Furthermore he had lived in the area all his life and knew what the speed limit was. He said twice during examination-in-chief that his car was one foot into the incorrect side of Queens Road after the white line. After the impact the car vibrated.

He said there was enough space for the deceased's vehicle to pass him because the Defendant was occupying only one foot of the deceased's side of the road.

As a result of this accident the Defendant had been charged with dangerous driving causing death and had engaged the present Attorney-General and Mr. John Semisi to appear for him.

Mr. Semisi had told him to plead guilty because he had no witnesses. The Defendant did so and was fined $1,000.00.

In cross-examination the Defendant said that Rampur College was about 1 km from Viwawa Road. He said that he could see a cat or dog crossing the road. He then said that he could see about 500 metres down the road. He agreed that his car was 12-13 feet long but then said it was four or five yards long and that shortly before the accident he had started to move towards the centre of the road so as to be able to turn into Viwawa Road. He said he could see very clearly the deceased's vehicle was at Rampur College about 1 km away, although this was only his estimation. When pressed about this the witness said that he now estimated the Suzuki was between 300-500 yards from his car when he first saw it. After this he moved forward a little and looked towards the college again. This time the deceased's vehicle was near him. He said it could have been between 3-5 seconds between the time he first looked towards the college and the second time. He denied that he had committed any error of judgment by wrongly calculating how far the deceased's vehicle was from him.

I will now summarise the evidence of Professor Horn as to the deceased's qualifications and earning capacity. Professor Horn said that the deceased was an excellent employee which was why he had recommended him for salary bonus. He tendered a letter he had written to the Plaintiff on 20th February this year giving details of the deceased's earnings. He said that the deceased joined the English Resources Unit of the Department of Literature and Language on 2nd October 1989. He was appointed on the top of the lecturer salary scale.

At the time of his death on 12th May 1991 his basic salary including a 5 percent merit loading and 15 percent gratuity was $33,292.00. To this was added the University's 10 percent contribution to the Fiji National Provident Fund resulting in gross annual earnings of $36,621.00. In August 1991 this would have been increased to $38,518.00 and in August 1992 to $40,443.00. In August 1993 this would have been increased again to $41,454.00.

In May 1990 the deceased's proposal for Ph.D research was accepted by the University. The research was to be 'a study of computer-assisted writing processes of university-level ESL [English as a Second Language] learners in the South Pacific'. At the time of his death Mr. Woloszyn had already done quite a lot of work towards this project. The deceased was a particularly industrious and productive colleague. His merit loading salary award was in recognition of his admirable work in the Department.

Professor Horn said that one could assume that by now after more than five years at the top of the Lecturer scale and after almost five years of Ph.D. research - it would have been very likely that he would have completed his doctorate and been promoted to Senior Lecturer. Were he at the very first level of the Senior Lecturer's scale today he would be earning $40,779.00 but he might, however, have been above that level.

He said that Mr. Woloszyn's work was in a demand field. There are very lucrative jobs overseas.

SUBMISSIONS

Having now discussed the evidence I pass to the submissions of counsel on behalf of the parties. It was agreed that the sketch drawn by the Police says that the width of the road at the point of the impact was 8 metres but this was also the entrance to Viwawa Road which gave a wider width at the point of the impact.

Mr. Krishna said the evidence established that the deceased drove closer to the middle white line and not therefore in the centre or closer to the left edge of his correct lane of the road. Mr. Krishna said that the conviction of the Defendant alone did not constitute evidence of negligence. The Defendant had engaged a lawyer to defend him and he pleaded guilty on the advice of his lawyer. There was no finding of facts in the Magistrate's Court. There is no conclusive evidence because neither the Court record nor the Certificate of Conviction were produced or tendered before me.

Mr. Krishna referred to Section 9(2)(a) of the Evidence Act Cap. 41 which states that where a person is proved to have been convicted of an offence by or before any Court in Fiji he shall be taken to have committed that offence unless the contrary is proved. Counsel said that the contrary had been proved by the evidence of the Defendant and the Police diagram. Accordingly this Court is entitled to make its own finding of facts.

I find no difficulty in that. Accepting the evidence of the Police diagram which was not drawn to scale and considering the Defendant's own evidence about the length of his vehicle I find as a fact that at the time of the accident the Defendant's vehicle must have been between 4 and 5 feet on its wrong side of the road.

The width of Queens Road a short distance before the point of impact was 8 metres. The Police sketch clearly shows that the whole front of the deceased's vehicle was some distance across the centre white line and I prefer this independent evidence to that of the Defendant.

The sketch also shows that at the point of impact the right-hand rear corner of the Defendant's vehicle was 3.1 metres from the left-hand edge of Queens Road facing Pacific Harbour.

In my judgment therefore the Defendant's vehicle must have been well across the centre white line and not the mere foot which the Defendant asserted and thus left insufficient space for a vehicle coming from the opposite direction to safely pass, even taking into account the additional space provided by the mouth of Viwawa Road.

As to the submission the deceased was driving too fast at a speed of 80 kmph I consider that even if the Plaintiff's vehicle had been travelling at the 60 kmph speed limit which the Defendant claimed existed at the scene it is more than likely the accident could not have been avoided. In my view the Defendant had moved his vehicle across the centre white line in the path of the Plaintiff's vehicle only seconds before the collision occurred. In doing this I find that the Defendant committed an error of judgment. When he started to move across the centre white line he believed the Plaintiff's vehicle was further away than in fact it was and when he stopped with the front part of his vehicle extending over to the incorrect side of the road and into the path of the Plaintiff's vehicle, it was too late for the accident to be avoided. Had the Defendant remained on the correct side of the road the accident would not have occurred.

As to Mr. Krishna's submission on the Defendant's conviction I say that I presume, because it would be unthinkable not to do so, that before the Magistrate convicted the Defendant he heard a statement of facts read to the Court by the prosecutor. If there was anything in the statement which caused the Magistrate to have any doubts he would I believe have rejected the Defendant's plea of guilty. The Defendant admits he was fined $1,000.00 which leads me to conclude that the Magistrate considered, correctly in my view, that this was not the worst case of dangerous driving. The Defendant committed an error of judgment which unfortunately had fatal consequences. I therefore find the conviction was proper.

That said however, the evidence does not satisfy me in this, a civil case, that the Defendant was wholly to blame for the accident. In my judgment the deceased was driving too close to the centre of the road which is borne out by the Police diagram which shows the Defendant's vehicle to be approximately 4 feet on to its wrong side of the road and I fail to understand why the deceased could not have seen the Defendant earlier. Had the deceased been driving further to the left it is just possible in my view that the accident may have been avoided. Of course he was driving on his correct side and he was entitled to expect the Defendant to keep on his correct side until the deceased's vehicle had passed him. Unfortunately the Defendant's action by crossing into the Plaintiff's lane caused the deceased to take evasive action which, because he was travelling on his correct side of the road, he should not have had to take. In my view both the Defendant and the deceased committed errors of judgment but the principal error in my view was that of the Defendant. I therefore find the Defendant 80 percent to blame for the accident.

DAMAGES

I pass now to the question of damages. The Plaintiff claims as special damages funeral expenses and the pre-accident value of the deceased's motor vehicle, less its salvage value, as it was a write-off as a result of the accident. Funeral expenses claimed are $731.50 for a head stone, $1,000.50 for sundry expenses including hearse, casket, grave and mats provided in the Catholic Church in which the funeral service was conducted and $925.00 being the quotation for tomb stone. A total of $2,706.50. However as the Defendant admits the original figure of $2,350.50 for these expenses I award that amount. The Plaintiff claims $5,100.00 as the value of the deceased's motor vehicle. This represents the purchase price of $6,500.00 in December 1990 less the price obtained for the wreck after the accident of $1,400.00 i.e. a difference of $5,100.00.

The Defendant however submits that the depreciated pre-accident value should be $5,000.00 and less the salvage the loss should be quantified at $3,600.00. The Defendant gives no reason for assessing the pre-accident value at $5,000.00 and I therefore prefer the figure claimed by the Plaintiff. I therefore award $5,100.00 for this item. The Plaintiff is also entitled to interest on the special damages from the date of the accident, 12th May 1991 to the date of the trial 6th March 1995 i.e. 3 years 9 months at half the normal rate which is currently in my experience 8 percent. I therefore allow interest of 4 percent for these damages.

Dealing next with the claim for loss of expectation of life under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27 the standard award is now $2,500.00 following the decision of Hari Pratap v. The Attorney-General of Fiji and Om Prakash F.C.A. 14 of 1992. Interest on this is allowable from the date of death to the date of trial i.e. 3 years 9 months at the full rate which I fix at 8 percent.

I now come to the claim by the estate under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act commonly known as the claim for "the lost years". This head of the claim was confirmed as being valid in the House of Lords in Gammell v. Wilson & Others (1981) 1 ALL E.R. 578. This decision was followed by the Court of Appeal in Fiji in Daya Ram v. Peni Caca & Others (Fiji Court of Appeal No. 50 of 1982: judgment March 1983) where the Court said:

"Accordingly the claim on behalf of a deceased estate for loss of earnings for lost years is now firmly established as on the same footing as the same claim by a living person, subject to the reservation as to deduction of personal living expenses."

In the present case counsel for the Defendant who also appeared in Civil Appeal No. 66 of 1992 Ratu Viliame Fokimoana Dreunimisimisi and South Pacific Distilleries Limited v. David Nag Ratnam, unreported judgment of 26th May 1994 submits as he did in that case that Gammell v. Wilson & Others is no longer good law in Fiji. He submits that the proper authority here now is the English Court of Appeal decision in Oliver & Another v. Ashman & Another (1961) 3 ALL E.R. 323 in which it was held that the trial judge had erred in taking into account the loss of earnings during the period for which expectation of life was lost.

As the Court of Appeal in Dreunimisimisi pointed out, in England the effect of the decision was reversed by statute by Section 4(2) of Administration of Justice Act 1982. The Court of Appeal said of Mr. Krishna's submission in Dreunimisimisi that it was "quite untenable and entirely misconceived. There has been no legislation in Fiji such as has been enacted in Section 4(2) in the Administration of Justice Act in England and accordingly Daya Ram's case stands."

I cannot understand why Mr. Krishna would make such a submission to me when he knew of the Court of Appeal decision in Dreunimisimisi. His submission is therefore rejected.

The measure of damage to be calculated is the loss that the deceased, therefore his estate, has suffered, as a result of being deprived of receiving an income. The conventional approach is to take the deceased's net earnings at the date of his death, deduct something for the expenses that he would have incurred on himself and multiply the resulting figure by an appropriate number of years taking into account such factors as the age and expectation of working life of the deceased and his future prospects. The amount of the deduction was considered by the English Court of Appeal in Harris v. Empress Motors Ltd and Cole And Another v. Crown Poultry Packers Ltd (1984) 1 WLR 212.

The judgment of the Court was delivered by O'Connor L.J. who said at pp 216 - 217:

"In the course of time the courts have worked out a simple solution to the similar problem of calculating the net dependency under the Fatal Accidents Acts in cases where the dependants are wife and children. In times past the calculation called for a tedious inquiry into how much housekeeping money was paid to the wife, who paid how much for the children's shoes etc. This has all been swept away and the modern practice is to deduct a percentage from the net income figure to represent what the deceased would have spent exclusively on himself. The percentages have become conventional in the sense that they are used unless there is striking evidence to make the conventional figure inappropriate because there is no departure from the principle that each case must be decided upon its own facts. Where the family unit was husband and wife the conventional figure is 33 per cent and the rationale of this is that broadly speaking the net income was spent as to one-third for the benefit of each and one-third for their joint benefit. Clothing is an example of several benefit, rent an example of joint benefit. No deduction is made in respect of the joint portion because one cannot buy or drive half a motor car. Part of the net income may be spent for the benefit of neither husband nor wife. If the facts be, for example, that out of the net income of £8,000 p.a. the deceased was paying £2,000 to a charity the percentage would be applied to £6,000 and not £8,000. Where there are children the deduction falls to 25 per cent, as was the agreed figure in the Harris case."

In the instant case as the Plaintiff's daughter was only 3 years old at the time of the accident I consider the appropriate deduction for the deceased's expenses should be one-third of his net salary at the date of his death which was approximately $1,742.00. I realise that Professor Horn stated that had the deceased still been alive and employed at the University of the South Pacific he would have been earning a gross salary in excess of $40,000.00 p.a. at the date of the trial. Taking into account the fact that income tax was reduced in 1992, this approximates to an income monthly salary of at least $2,000.00 or $24,000.00 p.a.

However whilst it is probable that but for the accident the deceased would still be alive today one can never be certain in life. I therefore prefer to take the known figure of $1,742.00 or $20,904.00 p.a. Deducting one-third of this or $6,968.00 leaves a figure surplus of $13,936.00 p.a. In determining the appropriate multiplier the factors I have mentioned must be taken into account.

The evidence was that the deceased was aged 37 years at the date of his death and that a University Lecturer was required to retire at the age of 65. He therefore had 28 years of working life. He was in good health and according to Professor Horn was a first class Lecturer whose prospects were very good. He was likely to have obtained his Ph.D. within two or three years.

In determining the multiplier a discount must be made for the fact that a lump sum is being awarded in advance of the earnings that the deceased would have expected to receive.

It is unusual for the multiplier to be more than 18. Counsel for the Plaintiff helpfully gave me a list of multipliers awarded in various cases and submits that in this case the appropriate multiplier is 16. On the other hand Mr. Krishna submits that the multiplier should be 8. I consider that number far too low. Interestingly in Cole v. Crown Poultry Packers Ltd. where the deceased was a skilled electrician aged 38 at the time of his death the trial judge fixed the multiplier at 16 and this was upheld on appeal. There are numerous other cases referred to in Kemp & Kemp Volume 3 at p.63021. In this case I consider the appropriate multiplier to be 16.

Applying this multiplier to the available surplus at the date of the deceased's death $13,936.00 p.a. produces an amount of damages for the lost years of $222,976.00.

Counsel for the Plaintiff submits that there should also be taken into account the 10 percent contribution to the Fiji National Provident Fund on behalf of the deceased at the date of death. This amounted to $3,329.00 p.a. and it is submitted that I should multiply this also by 16. I do not accept that submission.

On the evidence the Plaintiff and the deceased intended to leave Fiji at the end of his current contract failing, I suppose, his inability to obtain a better position overseas which I think unlikely. There is no evidence that if the Plaintiff had taken employment overseas there would be provision for contribution from the employer for the Fiji National Provident Fund. Allowing for the possibility that the deceased might not have left Fiji immediately after his first contract expired I consider it reasonable to allow four years for such contingencies and I therefore award $13,406.00 for this item.

Interest is allowable from the date of the death to the date of the trial i.e. three years nine months at half the normal rate which I fix at 4 percent.

It was put to me by Mr. Krishna that the Plaintiff has chosen to make damages under the Compensation to Relatives Act Cap. 29 her principal relief and claim and that her claim for damages under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27 was merely an alternative. I do not agree. I have no doubt that the Plaintiff is primarily seeking damages under the provisions of the latter Act and I therefore reject that submission.

It was also submitted by the Defendant that the Plaintiff would in any event be beneficiary to benefits received from the estate of the deceased and that such benefits should be deducted from any damages that may be awarded under the Law Report (Miscellaneous Provisions) (Death and Interest) Act Cap. 29.

Again I cannot accept that submission. Although it is appropriate to deduct from damages awarded under the Compensation to Relatives Act, the net pecuniary benefit accruing to a dependant as a result of the death of the deceased, the same principle does not apply to damages awarded under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act. This is because under that Act the Plaintiff is the estate and the identity of the beneficiary of the estate is irrelevant for the purposes of assessing damages, whereas under the former Act the Plaintiff or Plaintiffs are dependant or dependants of the deceased.

Counsel for the Defendant also made what I regard as a "nit- picking" submission that because the Plaintiff did not claim costs the Court should not award any to her.

I reject that submission. It is not necessary to include a prayer for costs in a statement of claim in order for costs to be awarded. The normal rule is that costs follow the event as I order they will here.

I therefore make the following awards:

Funeral expenses $2,350.00 plus

interest at 4 percent for three

years nine months from 12th May

1991 to 6th March 1995 to be

reduced by 20 percent for the

deceased's contributory negligence = $2,162.50

Damage to vehicle $5,100.00 and

interest for the same period and

the same rate to be reduced by 20

percent = $4,692.00

Loss of expectation of life $2,500.00

plus interest at 8 percent for three

years and nine months reduced by 20

percent = $2,600,00

General damages for the lost years

$236,382.00 plus interest for three

years and nine months at 4 percent

reduced by 20 per cent = $218,271.44

Giving a total award of = $226,925.94

As stated earlier the damages in Action No. 529 of 1993 (Maya Woloszyn) have been agreed at $10,000.00 and those in Action No. 530 of 1993 (Heather Dianne Lotherington-Woloszyn) at $5.000.00 subject to the determination of liability. In accordance with my finding of contributory negligence against the deceased these sums will now be reduced to $8,000.00 and $4,000.00 respectively. As no claim for interest has been made in either of these claims I will award none. There will therefore be judgment for the Plaintiff in Action No. 489 of 1993 in the sum of $226,925.94 together with costs to be taxed if not agreed. There will be judgment for Maya Woloszyn in Action No. 529 of 1993 for $8,000.00 which is to be paid into Court and invested by the Registry on behalf of the Plaintiff until she turns 21 years.

There will be judgment for the Plaintiff Heather Dianne Lotherington-Woloszyn in Action No. 530 of 1993 for $4,000.00.

JOHN E. BYRNE
J U D G E

Legislation and authorities referred to in judgment:

Compensation to Relatives Act Cap. 29.
Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27.
Evidence Act Cap. 41.

Daya Ram v. Peni Caca and Others FCA No. 50 of 1982.
Gammell v. Wilson & Others (1981) 1 ALL E.R. 578.
Hari Pratap v. The Attorney-General of Fiji and Om Prakash FCA No. 14 of 1992.
Harris v. Empress Motors Ltd. and Cole and Another v. Crown Poultry Packers Ltd (1984) 1 WLR 212.
Kemp & Kemp - The Quantum of Damages, Volume 3.
Oliver & Another v. Ashman & Another (1961) 3 ALL E.R.
Ratu Viliame Fokimoana Dreunimisimisi and South Pacific Distilleries Limited v. David Nag Ratnam FCA No. 66 of 1992.

The following additional cases were referred to in argument:

Jasumati Ben v. Moidean and Ram Padarath Holdings Limited FCA No. 41 of 1978.
Benham v. Gambling (1941) A.C. 157.
Cookson v. Knowles [1978] UKHL 3; (1979) A.C. 556 (1978) 2 A.E.R. 604.
Munkman on Damages for Personal Injuries and Death 8th Edition Butterworths.
Sashi Lata & Another v. Gopal Pillay & Others, High Court Lautoka C.A. 100 of 1990 - unreported judgment of 1st October 1991.
Rose v. Ford (1937) A.C. 826.
Raj Kumar & Mohan Prasad v. Dharma Reddy FCA 62 of 1983.
Kanta Mani v. Western Mining Corporation (Fiji) Ltd. FCA 72 of 1991.
Josefa Sigavolavola & Vaterio Nanitu v. Gyan Mati FCA 85 of 1985.

HBC0489J.93S