Ram v Hotchin [1995] FJHC 61; Hbc0006j.91b (30 March 1995)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION No.0006 of 1991

Between:

PARAS RAM
s/o Bissessar
as administrator in the estate of DEO RAJ deceased.
Plaintiff

- and -

1. IVAMERE HOTCHIN
2. ADRIANUS WILHELMUS ARNOLDUS MARIA VAN SANTEN
the Executor and Trustee in the estate of
PHILIP LOWTHER HOTCHIN.
Defendants

Mr. J. Singh for the Plaintiff
Mr. Raman Singh for the Defendants

JUDGMENT

In this case the Plaintiff sues as Administrator of the Estate of his son DEO RAJ the deceased under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap.27 and under the Compensation to Relatives Act Cap 29.

The claim arises from an accident on 8 June 1988 at Seaqaqa on Labasa-Nabouwalu Road. The facts of the case are set out in the Statement of Claim suffice it to say that the First Defendant (D1) was the owner of motor vehicle Regd. No.BG486 and the Second Defendant is the executor and trustee of the estate of PHILIP LOWTHER HOTCHIN (the driver of the said vehicle and the husband of the first defendant). The said P.L.HOTCHIN died some time after the accident.

On the said 8 June 1988 the said DEO RAJ (hereafter referred to as the 'deceased') then aged 14 years was a passenger in the said vehicle driven by the said P.L.HOTCHIN.

As already found by me in the High Court Case No. 5 of 1991 as a result of negligent driving, whilst attempting to overtake in the face of on oncoming vehicle, the said P.L. HOTCHIN collided in the rear of a parked truck loaded with logs. The deceased died from the injuries he received.

The deceased is survived by his parents PARAS RAM (the father) and BIMLA WATI (the mother).

At the time of his death the deceased enjoyed good health and lived a happy and vigorous life. He was a class 6 student and helped his parents. The deceased used to assist his father on their farm and on the day of the accident he was assisting his father picking pineapples and the fact that the son would have assisted him in this manner is not an unreasonable expectation if he was still alive. As a student he was bright and came second or third in his class. As a result of the accident the parents have lost a helping hand and have suffered loss and damages.

In the circumstances, having found liability established against the defendants, the sole issue now left before me for determination is assessment of damages and I shall now deal with it.

The second defendant (D2) is sued as executor and trustee of the estate of the said PHILIP LOWTHER HOTCHIN who was the driver at the time of accident; the first defendant (D1) is sued because she owned the said vehicle BG486 and hence vicariously liable.

The Plaintiff claims as follows: -

a) Funeral expenses in the sum of $400.00.

b) Damages under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act.

c) Damages under Compensation to Relatives Act.

d) General Damages.

e) Interest on the amount of the said damages at such rate and for such period as this Honourable Court shall deem just.

f) Costs.

As for (a) FUNERAL EXPENSES:-

Although there is no definition of 'funeral expenses', in Compensation to Relatives Act Cap 29 it provides in s.11 that "damages may be awarded in respect of the funeral expenses of the deceased person if such expenses have been incurred by the parties for whose benefit the action is brought". It would appear that the test of reasonableness would apply. Mr. Raman Singh's silence on this claim is indicative of acquiescence. I allow the said sum of $400 for funeral expenses as part of the assessment as special damages.

As for (b) DAMAGES UNDER THE LAW REFORM (MISCELLANEOUS PROVISIONS) (DEATH AND INTEREST) ACT (Cap. 27)

For a claim under Cap. 27 different considerations apply from Cap. 29. In considering this aspect the following passage from the judgment of LORD MORRIS OF BORTH-Y-GEST IN YORKSHIRE ELECTRICITY BOARD v NAYLOR (1967) 2 AER at p. 6 should be borne in mind:

"Though it is said that his death was instantaneous, the appellants have not sought to dispute that a valid cause of action vested in him. By reason of the provisions of the Law Reform (Miscellaneous Provisions) Act, 1934, that cause of action survived for the benefit of his estate. The judge had to decide what sum of damages should reasonably be awarded in respect of the deceased's cause of action. He lost what is usually called his expectation of life. The loss was something personal to himself. No one knows what life would in fact have held for him had he lived. No one will ever know. No one could ever know. The chances, the changes and the vicissitudes of the future are in the future. He will not know them. No surmise can with any measure of confidence be made whether by his untimely death he was denied happiness or was spared unhappiness. The task of "equating incommensurables" is one that can never be satisfactorily achieved."

The award under this head is solely in regard to loss of expectation of life.

As the learned counsel for the Plaintiff submits the amount under this head for loss of expectation of life is limited to a moderate sum in Fiji. In SUBAMMA v CHANDAR (C.A. 373/79), FERO TABAKISUVA v SANT KUMAR & ERONI TOKAILAGI (C.A. 465/80) and DAYA RAM v PENI CARA & OTHERS (Civ. App. 59/82 FCA) the sum of $1250.00 was awarded.

It has been said that there is "no basis in law for selecting an award and then to make a slight allowance for the decreasing value of money" (KRISHNA TANDRAIYA and DHARAM SINGH (Civ. App. 17/78 FCA). Quoting from TANDRAIYA (supra) in BENHAM v GAMBLING (1940 A.C. 157). Viscount Simon L.C. said that:

"while recognising that this head of claim is in fact incapable of being measured in coin of the realm with any approach of real accuracy" stated that courts should arrive at "very moderate figures".

I award the sum of $1250 under this head of the claim. This sum will have to be deducted from the claim under the Compensation to Relatives Act Cap. 29 (DAVIES v POWELL DUFFRYN ASSOCIATED COLLIERIES LTD (1942) A.C. 601)

As for (c) CLAIM UNDER COMPENSATION TO RELATIVES ACT (Cap. 29)

As for claim under this head, the right of action under it confers on the near relative a right which is an independent right and not a continuation of the cause of action vested in the deceased.

Section 3 of the Act reads as follows:-

"Where the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person or persons or body of persons, incorporated or unincorporated, who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured, and although the death was caused under such circumstances as to amount in law to a crime".

I find that under s.4 of Compensation to Relatives Act Cap 29 the Plaintiff is entitled to the claim as a dependant.

The action is based upon financial loss or loss of support and nothing else (BLAKE V. MIDLAND RLY CO. [1852] EngR 10; (1852) 18 Q.B. 93). In the case before me the deceased's death was instantaneous after the vehicle collided. Hence there can be no claim for pain and suffering.

Under this head, under Cap 29, the questions I have to decide is the amount of dependency of the father and the multiplier. I have already outlined hereabove the details about the deceased and how he assisted his father. No doubt he would have contributed substantially part of his future earnings to his father for the upkeep of the household and in due course he would have married and his contribution to his father would have reduced as a result.

On the basis of his potential earning capacity based on the authorities to which I refer to hereafter, the Plaintiff is entitled to damages under the Compensation to Relatives Act as a dependant although the deceased had not commenced employment at the time of his death on 8 June, 1988.

The Plaintiff cannot succeed unless he can prove actual dependence on the deceased at or before his death, or a probability that he would have received some support from him in the future if he had lived (BARNETT v. COHEN (1921) 2 KB 461. A reasonable expectation of pecuniary benefit, as where a child has become an apprentice and may soon be earning wages, is sufficient (TAFF VALE RLY CO. v. JENKINS [1912] UKLawRpAC 60; (1913 AC 1); in one case, where 17 years old apprentice was killed and his father's health was precarious $500 was given to the mother for chances of maintenances by the son in the 5 years or so before he would be likely to marry. (WATHEN v. VERNON 1990 RTR 471). Total dependence is not necessary and partial dependence, even if it is of a slight and uncertain kind, will be sufficient to sustain an action. Occasional financial assistance by a son to his crippled father has been held to be sufficient (HETHERINGTON v NORTH EASTERN RLY CO.(1882) [1882] UKLawRpKQB 115; (1882) 9 QBD 160).

In GAMMELL v WILSON (1981) 1 AER 578 at 588 H.C.) LORD EDMUND DAVIES states that assessment of damages for the lost years "is at best speculative usually pure guesswork, and where there is any basis for making a calculation such a basis is usually unreal."

In the case of an infant as in this case it becomes difficult to make an assessment; one can only reply on prospective loss. Here the deceased did assist his father on the farm and would have continued to assist him had he lived.

The case that is very close to this case is that of TANDRAIYA (supra) (and referred to by Mr. J. Singh) where a 10 year old boy died in an accident and no order was made under Cap. 29 and the Plaintiff appealed. An award of $1500 was made. There is a very useful discussion of that subject in the judgment of HENRY J.A. in TANDRAIYA (supra) and it will be useful to set it out here. It is as follows:

"The position is clearly set out in Barnett v. Cohen (1921) 2 K.B. 461, 469-470 where the following passage appears:

"Now at one time it was thought that a father would fail in his action unless he gave proof of pecuniary advantage in actual existence prior to or at the time of the death of the child: see e.g. Holleran v. Bagnell. (2) In that case the child was seven years of age. She rendered some slight household services. Morris C.J. said that there was no instance of an action for loss caused to a plaintiff by the death of a person of such a tender age. He added: "There should be distinct evidence of pecuniary advantage in existence prior to or at the time of the death." This latter remark of Lord Morris (then Morris C.J.) has, however, been nullified by the opinion of the House of Lords in Taff Vale Rv. Co. v. Jenkins (3) where the dead child was a girl aged sixteen. There Lord Haldane said (4): "The basis is not what has been called solatium, that is to say, damages given for injured feelings or on the ground of sentiment, but damages based on compensation for a pecuniary loss. But then loss may be prospective, and it is quite clear that prospective loss may be taken into account. It has been said that this is qualified by the proposition that the child must be shown to have been earning something before any damages can be assessed. I know of no foundation in principle for that proposition either in the statute or in any doctrine of law which is applicable; nor do I think it is really established by the authorities when you examine them". Later Lord Haldane said (1): "I have already indicated that in my view the real question is that which Willes J. defines in one of the cases quoted to us, Dalton v. South Eastern Rv. Co. (2):'Aye or No, was there a reasonable expectation of pecuniary advantage?'"

The Judge in Barnett v. Cohen went on to say at p.470:

"Now this question of reasonable expectation of pecuniary advantage seems to me to be a mixed question of fact and law. Mere difficulty in assessing damages should not bar a plaintiff from recovering: see the principle involved in Chaplin v. Hicks. (3) But, on the other hand, I think that the plaintiff must adduce such evidence as affords the judge a reasonable basis on which to infer that pecuniary damage has been inflicted on the plaintiff."

It was said later after reviewing the cases, at p. 471:

"I think that the only way to distinguish between the cases where the plaintiff has failed from the cases where he has succeeded is to say that in the former there is a mere speculative possibility of benefit, whereas in the latter there is a reasonable probability of pecuniary advantage. The latter is assessable. The former is non-assessable. This test, though necessarily loose, seems to be the only one to apply."

Barnett v. Cohen (supra) was discussed in Davies v. Taylor (1972) 3 All E.R. 836 where in the House of Lords the following passages are taken from the speeches of their Lordships: per Lord Reid at p.838:

"To my mind the issue and the sole issue is whether that chance or probability was substantial. If it was it must be evaluated. If it was a mere possibility it must be ignored. Many different words could be and have been used to indicate the dividing line. I can think of none better than 'substantial' on the one hand, or 'speculative' on the other. It must be left to the good sense of the tribunal to decide on broad lines, without regard to legal niceties, but on a consideration of all the facts in proper perspective. 'Injury' in the Fatal Accidents Act 1846 does not and could not possibly mean loss of a certainty. It must and can only mean loss of a chance. The chance may be a probability of over 99 per cent but it is still only a chance. So I can see no merit in adopting here the test used for proving whether a fact did or did not happen. There it must be all or nothing."

per Lord Morris of Borth-y-Gest at p.839:

"In such a case the jury had to decide what they thought would or might reasonably have happened had the daughter lived; they had to decide how they thought the daughter would have acted or might have acted in regard to her parents had she lived. There could be no certainty as to such matters nor could there be knowledge as to what the future would hold for the father and the mother. So in such a case the question was whether the parents had had (and by the death had lost) a reasonable prospect or chance of enjoying some financial benefit."

per Viscount Dilhorne at p.842:

"In some cases, e.g. Barnett v. Cohen, it is said that there has to be a reasonable probability of pecuniary benefit. I do not think that it makes the slightest difference whether one speaks of a 'reasonable expectation' or a 'reasonable probability'."

If the above tests are applied we are of opinion that the learned Judge was wrong in his approach to the primary question. The parents might reasonably expect some pecuniary benefit from a son of the character of deceased living in an Indian community where family help is to be expected. It is irrelevant to say deceased had no better prospects than his father except on the question of how much help he might be able to give.

The claim of the mother, if she should become a widow or misfortune befall her husband has been overlooked. After weighing all the factors on the basis of the authorities cited we are of opinion that a sum of $1,500 is an appropriate award."

Although Mr. Raman Singh submits there should not be any award under this head, based on the above passages I would make an award of $2500.

The plaintiff has claimed interest on the damages awarded. Under section 3 of Cap. 27 the Court has the discretion to award interest at such rate as it thinks fit, on the whole or any part of a judgment for any debt or damages, for the whole or any part of the period between the date when the cause of action arose and the date of judgment.

In this case the cause of action arose on 8 June 1988. I award interest at the rate of 13.5 per cent per annum from that date to date of Judgment, namely, 30 March 1994. Needless to say this judgment will carry interest at the rate of $4.00 per cent per annum until satisfied and no order of the Court is necessary (PAIN J in SURESH SUSHIL CHARAN & ANOR and SUVA CITY COUNCIL C.A. 1173/84).

In the result I allow the sum of $1250 under LAW REFORM (MISCELLANEOUS PROVISIONS) (DEATH AND INTEREST) ACT CAP 27 and the sum of $2500 under COMPENSATION TO RELATIVES ACT CAP. 29. The said sum of $1250 is to be deducted from the said $2500 leaving the balance of $1250; to this is to be added the sum of $400 as special damages making a total sum of $1650.00.

I therefore give judgment in the sum of $1650 in favour of the Plaintiff against the defendants together with interest as stated hereabove and costs to be taxed if not agreed.

D. Pathik
Judge

At Labasa
30 March 1995

HBC0006J.91B