Narayan v Attorney-General [1996] FJHC 149; Hbc0611.93s (9 October 1996)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. 611 OF 1993

BETWEEN

JAI NARAYAN
(f/n Shiu Pal) as Executor
and Trustee of the estate of
Hazra Bibi
PLAINTIFF

and

THE ATTORNEY-GENERAL
DEFENDANT

V. Maharaj for the Plaintiff
I. Mataitoga for the Defendant

ASSESSMENT OF DAMAGES

On 12 April 1995 I gave Judgment in favour of the Plaintiff with damages to be assessed if not agreed. Unfortunately agreement was not reached and accordingly I heard 2 witnesses, the Plaintiff and his housekeeper on 28 May 1996. I also called for written submissions and these were filed on 28 August 1995 and on 30 May 1996. The matter was called for mention prior to Judgment on 2 July 1996. I now proceed to assess the damages recoverable.

The Plaintiff is the widowed former husband of one Hazra Bibi who died at the CWM Hospital on 20 April 1993 aged 33. As previously found by me she died as a result of medical negligence. She left 3 children:-

(i) Rozileen Narayan now aged 16

(ii) Maureen Narayan now aged 15

(iii) Jainendra Narayan now aged 3.

The Action is brought by the Plaintiff for the benefit of Hazra Bibi's estate under the provisions of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act - Cap. 27 and for the benefit of the Plaintiff and the 3 children under the provisions of Sections 4 and 5 of the Compensation to Relatives Act - Cap. 29.

Claims Under Cap. 27

The Fiji Act broadly corresponds to the English Law Reform (Miscellaneous Provisions) Act 1934 and is therefore concerned with the recovery by the estate of damages accruing before or as a result of the death. Care must be taken when considering the authorities relevant to the English Act since there are a number of variations between the two brought about by amendments to the 1934 Act which do not apply in Fiji. One important example is the English Administration of Justice Act 1982.

It will also be remembered that following the decision in Davies v Powell Duffryn Collieries [1942] AC 601 any benefit accruing or likely to accrue to a dependant from an award under Cap. 27 will fall to be deducted from damages awarded under a Fatal Accidents Act claim.

Heads of damage recoverable under Cap. 27 include:-

(i) Loss of expectation of life - a nominal sum of $2,500 (see Hari Pratap v Attorney-General FCA 14/92 - FCA Reps 93/276).

(ii) Funeral expenses - $750 (not in dispute).

(iii) Pain and suffering - the only evidence was that given by PW1 Satya Nand Mudaliar at the trial proper. The cause of death was dehydration caused by repeated vomiting over a period of 8 days. This must have been a most unpleasant and distressing experience. I award $2500 under this head.

(iv) Medical expenses of the deceased No evidence was led and accordingly I make no award under this head.

(v) "Lost Years" - I will deal with this head later.

In view of the claim for exemplary and punitive damages set our in paragraph (c) of the plaintiff's written submissions it must be noted that such damages are specifically excluded by section 2(a) of the Act. In my view they could not possibly form an element of loss under Cap. 29.

Claims Under Cap. 29

The Fiji Act once again has its broad equivalent in English legislation namely the Fatal Accidents Act 1946 (Lord Campbell's Act) which has also been amended in England but not in Fiji, most notably by the Fatal Accidents Act 1976 and the Administration of Justice Act 1982. In seeking guidance from the English authorities it is essential to distinguish between authorities applicable to Fiji's laws and authorities which are only relevant to England's law as amended. When consideration must also be taken of relevant Australian authorities then the problem of assessing these damages in Fiji, never easy, becomes considerably more involved.

The purpose of the Compensation to Relatives Act is to award the husband and children of the deceased "such damages are considered proportioned to the injury resulting from the death" (Section 5). The method of assessing the damages was explained in the following much quoted passage from Malyon v Plummer [1964] 1 QB 330, 349; [1963] 2 All ER 344, 353:-

"the pecuniary loss which the Court has to assess is a loss which will be sustained in the future. This involves two estimates, videlicet (i) what benefit in money or money's worth arising out of the relationship would have accrued to the person for whom the action is brought from the deceased if the deceased had survived but has not been lost by reason of his death (ii) what benefit in money or money's worth (subject to certain statutory exceptions) the person for whom the action is brought will derive from the death of the deceased which would not have been enjoyed had the deceased lived. The difference between the two estimates is the measure of damages recoverable under the ... (Act) ..."

It is important to remember that only injuries capable of evaluation in monetary terms can found claims in damages under this Act (see Franklin v South Eastern Rly Co [1858] EngR 669; (1858) 3 H & N 211; [1843-60] All ER Rep. 849). The loss however need not be monetary loss and therefore a loss of services reasonably expected in the future and capable of being valued in pecuniary terms will suffice (see Berry v Humm & Co [1915] 1 KB 627). Damages cannot be awarded as a solatium for injured feelings or for grief (see Taff Vale Rly Co v Jenkins [1912] UKLawRpAC 60; [1913] AC 1, 4).

It is also clear from the English authorities that the whole assessment of damages is a jury question (see Hay v Hughes [1975] 1 All ER 257, 266) but that:-

"now that such actions are no longer tried by juries, the judge who tries them has to direct himself as he would a jury and then put himself in the position of the jury to decide the facts. There are principles laid down which must be applied, but very often the reasoning of the judge is directed at facts of the individual case. Sometimes a similar set of facts emerges, sometimes not."

(see Spittle v Bunny [1988] 3 ALL ER 1031, 1036).

In my opinion this is also the correct approach in Fiji. I reach this conclusion because the relevant sections of the two Acts namely Section 2 of the 1846 English Act and Section 5 of the Fiji Act closely correspond and because the reference to the award being made by a jury rather than the Court was not only deleted by the English 1976 Act but also removed in Fiji by Section 9 of the Law Revision (Miscellaneous Amendments) (No. 2) Ordinance 1966.

The first question then is the amount of loss suffered by the husband and children plaintiffs as a consequences of Hazra Bibis's death.

Nazia Nisha told me that she had looked after the youngest child Jainendra since 1993. He was now 3 years old. She looked after him 6 days per week for which she was paid $3 per day.

The Plaintiff himself told me that prior to Nazia he had another housekeeper to look after Jainendra who was of course only a few days old when his mother died. After Hazra Bibi had died the Prisons Department for whom he had throughout worked had given him notice to quit the married quarters that he had been occupying with his family. He had therefore quickly remarried in September 1993. His second wife who had previously been a garment factory worker now stayed at home and did not work. By contrast Hazra Bibi had not only worked as a standby prison officer earning about $500 in 1990-1991 but she also grown vegetables for sale and had also sold yaqona, ice blocks and cigarettes from home earning " $40 - $50" per week nett.

Looking at Hazra Bibi's cash contribution to the family in the round I think the prison salary should really be disregarded. It was in my view more of a perk which came her way from time to time. She was not a substantive prison officer (see memorandum from the Commissioner of Prisons dated 14 August 1995 Exhibited to the Defendant's written submissions). With a new young child to look after, the probability is that she would not have been able to take on such duties, particularly at night. The amount involved is small and does not significantly affect the outcome. The main financial loss is clearly the vegetables and small grocery business operated from home. Although the income was fairly flexibly assessed I would accept a cash financial contribution of $45 per week. From this of course has to be deducted the cost of accommodating and feeding Hazra Bibi herself which I would put at $15 per week. Accordingly the net cash loss appears to have been $30 per week.

The next question that arises is what value to put on the services provided by Hazra Bibi to her husband and children. Evaluating those services in money terms is not at all easy. In England a "notional nanny" approach has usually been taken although at least one very experienced judge (Sir David Croom-Johnson) has called the approach "wholly inappropriate" when in fact no full time nanny was ever, or ever likely to be employed to take the place of the deceased mother (see Hayden v Hayden [1992] EWCA Civ 13; [1992] 4 ALL ER 681, 693). In the present case a housekeeper has in fact been employed to look after Jainendra at the rate of $3 per day on the basis of a 6 day week but that still leaves the value of Hazra Bibi's services as mother and wife, services much more valuable than those of a mere housekeeper (see Regan v Williamson [1976] 2 ALL ER 241, and Mehmet v Perry [1971] 2 ALL ER 529). Reminding myself that I am not valuing the plaintiff's loss of companionship or the grief and misery caused by Hazra Bibi's departure or indeed the love, guidance and influence she would have given to the children I value the non financial contribution to the family at another $70 per week. The multiplicand I therefore assess at $100 per week or $5,200 per annum. Given the ages of the children and the mother I think that the appropriate multiplier is 11 and accordingly I assess the total value of the family's dependency at 11 x $5200 = $57200. In view of the age of Jainendra I do not think a sliding scale award to reflect his growing up is appropriate.

Under Section 6 of Cap 29 it is necessary that the award should be apportioned (and also see Eifert v Holts Transport Co [1951] WN 476) but I heard no evidence or submissions on this aspect of the assessment and accordingly will need to hear counsel before making further orders of apportionment.

The next question that has to be answered is whether any deductions should be made from this award as a result of the Plaintiff's remarriage. I have to say that I have not found this question easy to answer. Instinctively my reaction is to disregard the remarriage altogether especially as the social circumstances in the Indo-Fijian population of Fiji are quite different from those which underlie English authorities.

In England the law already been amended so that a widow's remarriage prospects can be ignored (Fatal Accidents Act 1976 - Section 3 (2)) and the anomaly of not treating a widower in similar fashion has been remarked upon (see Hay v Hughes [1975] 1 All ER 257, 273). Furthermore the tendency of the English Courts to disregard purely voluntary benefits received which were previously thought to have been "the result of" or "the consequence of" the death has been noted both in Hay v Hughes (supra) and in Stanley v Saddique [1991] 1 All ER 537. It will also be remembered that it is for the Defendant to establish that there must be offset against the loss caused by the death benefits received after the death (see Baker v Dalgleish Steam Shipping Co. Ltd [1922] 1 KB 361, 377) and that there is a presumption against deducting the value of unpaid services rendered to a bereaved person. The defendant did not present any evidence.

In Australia the High Court has ruled that the basis for an award in these circumstances is the need of the Plaintiff for the services in question and that accordingly the Plaintiff does not have to show that the need is or may be productive of financial loss. In general the value or cost of providing services will be the standard or market cost of the services while the claim not being one for special damages, no question of mitigation of the damages calls for consideration (see Van Gerven v Fenton [1992] HCA 54; [1992] 175 CLR 327).

The only difficulty with this approach is that it appears to conflict with the third judgement in Nguyen v Nguyen [1989-1990] 169 CLR were at page 265 their Honours restate that remarriage by a widower will reduce the compensation payable to him "not because the Plaintiff's need for the services will then be satisfied but because the plaintiff's loss is thereby reduced.

The prospect of remarriage has always been regarded in claims under Lord Campbell's Act as providing a gain to the husband in the form of a revival of the capacity to marry. It is something which he would not have had, if his wife had not died".

In fact the authority cited by their Honours namely Carroll v Purcell [1961] HCA 81; (1961) 107 CLR 73, 79 appears, albeit somewhat gently, to question the value of the "revived capacity to marry" and in the circumstances of the present case and in the changed social circumstances which have developed over the last 35 years I am inclined to question its value and rationale altogether particularly when their Honours recognised that in Australia too "the Courts have been reluctant to conclude that where someone outside the immediate family voluntarily takes over the care of the household, especially the care of young children, a deduction should be made from the assessment of damages due to a Plaintiff and reluctant to recognise that the loss suffered by Plaintiff is thereby reduced". (Nguyen v Nguyen supra at page 266). I must confess that I can see no reason why the marriage of that "someone outside the immediate family" to the Plaintiff should result in his damages being affected. On the face of it such an approach would appear to encourage cohabitation rather than marriage.

I return finally to the "lost years". As made clear in Daya Ram v Cara (FCA 59/82 FCA Reps 83/50) the law in Fiji is still that damages arising from loss of earnings during lost years are recoverable under Cap. 27, there being no Fiji equivalent to the English Administration of Justice Act 1982, Section 4(2). In view however of the fact that, as already seen, damages recovered under Cap. 27 are deducted from those recovered under Cap. 29 and bearing in mind that a deceased's earnings less his own living expenses must always equal or exceed his contribution to his family from his earnings, there is no purpose (assuming that the family are beneficiaries of the deceased's estate) to be served by assessing this head of damage.

There remains the question of interest. I award this at rate of 8% from the date of Hazra Bibi's death until today.

In the result therefore I award the Plaintiff damages as follows:-

$

(i) Loss of expectation of Life 2,500

(ii) Funeral expenses 750

(iii) Pain and suffering 2,500

(iv) Value of dependency 57,200

Total $62,950

plus interest to be calculated.

As previously indicated apportionment of this award will have to await further submissions by counsel

M.D. Scott
Judge

9 October 1996

HBC0611.93S