Wati v Vakatora Holdings Ltd [1997] FJHC 241; Hbc0244j.95s (17 October 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 244 OF 1995

Between:

ANJULA WATI
f/n Jagarnath as Administratrix of the Estate of
SURAJ PRASAD
f/n Shiu Prasad
Plaintiff

and

1. VAKATORA HOLDINGS LTD
2. ALFRED LION BONNAR
3. THE NEW INDIA ASSURANCE COMPANY LIMITED
Defendants

Mr. V. Maharaj for Plaintiff
Mr. G. P. Lala for 1st Defendant
Mr. R. Krishna for 2nd & 3rd Defendants

JUDGMENT
ASSESSMENT OF DAMAGES

The Plaintiff as the Administratrix of the estate of her late husband SURAJ PRASAD father's name Shiu Prasad has sued the defendants under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27 and under the Compensation to Relatives Act Cap. 29.

The deceased died at the CWM Hospital, Suva on 8 October 1992 and Letters of Administration No. 30817 was granted to the Plaintiff on 11 July, 1994.

On 11 February 1997 the defendants admitted liability and by consent judgment was entered accordingly. The matter before the Court is to assess damages arising out of the accident. On 13 March 1997 on the hearing of Assessment of Damages Mr. Krishna said that he appears for the second defendant and that "damages will be paid by the third defendant".

Background

The First Defendant (D1) was at all material times the registered proprietor of a passenger bus Registration No. AQ674 and the Second Defendant (D2) was the servant and/or agent of D1. There was an Insurance Policy in respect of the bus issued by the Third Defendant (D3).

On 8 October 1992 the deceased who was a self-employed peanut seller was selling peanuts at the Suva Bus Stand when D2 so negligently drove, managed and controlled the said bus, that he caused or permitted the same violently to collide with the deceased who suffered serious injuries and as a result he died at CWM Hospital the same day.

The Plaintiff was married to the deceased on 3 March 1977. At the time of the death the deceased who was born on 31 January 1951 was about 42 years of age; he enjoyed good health and lived a happy and vigorous life. He has left behind him his wife ANJULA WATI (the Plaintiff) who was born on 15 February 1956 and two children MITHUN AVINESH RAM and ALVIN AVINESH RAM who were 9 years and 12 years old respectively at the time of death and were all dependent on their father.

Plaintiff's evidence

The Plaintiff's evidence, in so far as it is relevant, has been amply covered by Mr. Maharaj in his written submission as follows:

"She helped her husband in his peanut selling business. She said, that upon her husband's death, she had to find a job to support herself and her two children. She said that her eldest son could not continue with his education because she could not afford to send him to School any more. She said, she works as a trimmer at a Garment Factory earning about $40.00 per week. Her eldest son does casual work earning about $30.00 per week. She said her husband was hardworking and a healthy man. He seldom smoked, if he did, then he would smoke Sukhi (dry leaf).

He drank grog and liquor in moderation. She said, the whole family was dependent on her husband's income."

The following is evidence of his income:

She said her husband's main source of income was from selling peanuts. She said, that every week her husband would give her between $50.00 - $60.00 per week net for the family's maintenance.

She said that during the busy periods, such as School holidays, Hibiscus Festival or during major Soccer tournaments the income would go up. In addition, she said, she used to do some subsistence farming at her home and at times she would give vegetables from her garden to her husband and he would sell the vegetables to Market Vendors at the Suva Market. She said income earned from selling vegetables, whenever it happened, was over and above $50.00 - $60.00 that her husband gave her each week. Apart from peanuts, the deceased, also sold peas."

The deceased's earnings from peanut selling was corroborated by Ashok Kumar, an independent witness. He said that the net earnings would be between $60.00 to $70.00 per week.

Mr. Maharaj submitted that the Plaintiff received $50 to $60 per week from her husband from peanut selling and a further sum of $10 from sale of vegetables thus making the average income $70.00 per week. The deceased spent $1.00 per day on travelling.

Mr. Maharaj submits that allowing for $10.00 per week as his share of expenditure, it would leave the family dependency at $60.00 per week.

Defendants' Counsel's submission

Mr. Krishna submits that the weekly net loss of income of deceased should be assessed at $50 as pleaded by the Plaintiff. The additional income from the sale of vegetables which she `personally cultivated' was not that of the deceased. He says that Kumar's evidence is not relevant in assessing the deceased's income.

The learned counsel suggested a multiplicand of $34.00 per week and a multiplier of 10.

On the claim under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27 counsel accepts the "conventional" sum of $2500.00.

Consideration of the issue

(a) Claim under Compensation to Relatives Act Cap. 29

The right of action under the Act 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.

In this case the Plaintiff and the said two children are the dependants.

This 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).

What I am required to decide is the amount of dependency of the wife and children and the multiplier.

In considering the assessment of damages I have borne in mind the following passage from the judgment of LORD DIPLOCK in MALLETT v McMONAGLE (1969) 2 All E.R. 178:

"The purpose of an award of damages under the Fatal Accident Acts" (which correspond with our Compensation to Relatives Act) "is to provide the widow and other dependants of the deceased with a capital sum which with prudent management will be sufficient to supply them with material benefits of the same standard and duration as would have been provided for them out of the earnings of the deceased had he not been killed by the tortious act of the defendant, credit being given for the value of any material benefits which will accrue to them (otherwise than as the fruits of insurance) as a result of his death."

The deceased's source of income has been outlined above and now one has to ascertain how much he earned and how much was expended by him on himself and his living expenses. The guiding principle in this regard has been set out by LORD WRIGHT in DAVIES v POWELL DUFFRYN ASSOCIATED COLLIERIES, LIMITED 1942 AC 601 at 617 as follows:

"There is no question here of what may be called sentimental damage, bereavement or pain and suffering. It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase ....."

As was stated by LORD MORRIS of BORTH-Y-GEST in MALLETT (supra):

"..... it is inevitable that in assessing damages there must be elements of estimate and to some extent of conjecture. All the chances and the changes of the future must be assessed. They must be weighed not only with sympathy but with fairness for the interest of all concerned and at all times with a sense of proportion."

Dependency figure (Multiplicand)

Bearing in mind the evidence before me and the submissions of both counsel I assess the annual income of the deceased at $3120.00 ($60 per week x 52 weeks). Now I have to ascertain the figure for the dependency, namely, the sum of money or earnings or benefit which the widow was deriving from the deceased before his death.

According to LORD WRIGHT in DAVIES (supra - 178) there are three stages to the calculation and he stated them thus (quoting from Damages for Personal Injury and Death 5th Ed. by David Kemp at p.57):

"first of all, one has to ascertain the earnings of the deceased, less his personal and living expenses. This gives what Lord Wright calls the `datum figure', but it is also known as the annual dependency or the multiplicand. This figure is multiplied by a number of years' purchase, which is commonly known as the multiplier. The whole figure is subject to the element of reasonable future probability and this factor is commonly reflected in the multiplier (but sometimes is reflected in a reduced multiplicand.)"

I would in this case allow one-third of the said net sum of $3120.00 for personal and living expenses on the part of the deceased. The dependency therefore comes to two-thirds of $3120.00, namely, $2080.00 (Two thousand and eighty dollars).

Multiplier

What is a `multiplier' has been stated by M. Duncan & Anor in their book FATAL ACCIDENT CLAIMS at p.29 thus:

"The multiplier is the figure taken to represent the number of years for which the loss of dependency is likely to last. It is calculated from the date of death. To calculate the future loss of dependency, the years that have elapsed to the date of trial are deducted from the multiplier. The multiplicand is then multiplied by the remaining multiplier to give the future loss of dependency."..........

"As a general guide, a multiplier does not normally exceed 18. The court will take as a starting point the deceased's age at death and the likely length of his working life or the likely length of the period of dependency if this is different....."

Now the question is as to what is the correct multiplier. The deceased was about 42 years of age when he died. There is no evidence that he suffered from any illness. In fact he was in good health. He probably would have worked until the age of 60 years.

On `multiplier' Mr. Maharaj referred the court to a number of authorities where multiplier was arrived at on the facts of each particular case. The cases are JOSEFA SIGAVOLAVOLA v GYAN MATI (Civ. App. No. 85/85 FCA) there was a multiplier of 15 for a 30 years old carpenter earning approximately $70.00 per week; PARBATI v THE ATTORNEY-GENERAL OF FIJI (C.A. 116/89) where PALMER J awarded a total of $39,961.00 in general and special damages in respect of a 43 old husband (truck driver) earning $60.52 leaving behind three children. Mr. Maharaj submitted a multiplier of 16. On the other hand Mr. Krishna submitted that in MADHUKAR NATH SHARMA v VIJENDRA PRASAD (HCCA No. 40/88) a multiplier of 14 was applied in the case of a 32 year old Plaintiff; and in ATTORNEY-GENERAL OF FIJI v WAISALE NAICEGULEVU (Civ. App. 22/89 FCA) a multiplier of 6 was applied on a 49 year old Plaintiff; and in HEATHER DIANNE LOTHERINGTON-WOLCOSZYN v MAIKELI SAVOU (C.A. 489/93) BYRNE J used a multiplier of 16 for a 37 year old deceased who was a Senior Lecturer at the University of the South Pacific. Mr. Krishna suggested a multiplier of 10.

Here I consider the loss of dependency 18 years and in my view the appropriate multiplier is 13.

Therefore the annual dependency of $2080.00 multiplied by 13 makes a total of $27040.00. This is my award under Cap. 29. From this amount the sum of $2500.00 awarded (infra) under Cap. 27 is to be deducted leaving the balance sum of $24540.00.

Special Damages

The Plaintiff claims $1700.00 as special damages as follows:

(a) Funeral expenses: I would allow the sum of $750 claimed although Mr. Krishna agrees to only $400. Section 11 of Cap 29 provides 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". There is no definition of "funeral expenses" in the Act, and strictly receipts showing expenses should be produced when claiming special damages. In this country according to custom and traditions of the various races even the legitimate expenses amount to a substantial sum. As has been done before I would apply the test of reasonableness as far as this item of expenditure is concerned.

In the circumstances of this case I consider the sum of $750 as reasonable.

(b) Legal fees Letters of Administration

The claim is $850.00. Mr. Maharaj says it is reasonable and that it should be allowed. But Mr. Krishna says that the First Schedule to Barristers and Solicitors (Remuneration: Non-Contentious Business) Rules contained in the subsidiary legislation to Legal Practitioners Act Cap 254 provides the Scale Costs applicable to solicitors for obtaining grant of Probate and Letters of Administration. Accordingly he says the entitlement is $35.00.

On this item the proper approach would be to have the costs taxed by the Chief Registrar in the absence of an agreement.

(c) On loss of basket of peanuts and damage to clothing and shoes the sum claimed is $100. Mr. Krishna agrees to $40. I will allow $100.

Damages under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27

Loss of expectation of life

Under this Act different considerations apply from Cap 29. The award is in regard to loss of expectation of life.

The following passage from the judgment of LORD MORRIS of BORTH-Y-GEST in YORKSHIRE ELECTRICITY BOARD v NAYLOR (1967) 2 All E.R. at p.6 is apt in considering this aspect of the claim:

"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 limited to a moderate sum in Fiji. Some of the cases in which this aspect was considered are: SUBAMMA v CHANDAR C.A. (FCA Vol 82 p573), FERO TABAKISUVA v SANT KUMAR & ANOR C.A. 465/80, DAYARAM v PENI CARA & ORS Civ App 59/82 (F.C.A. Vol 83 page 50) in which $1250.00 was awarded. In JAI NARAYAN v THE ATTORNEY-GENERAL C.A. 611/93 and PARAS RAM v IVAMERE HOTCHIN & ANOR C.A. 6/91 (LABASA) and HARI PRATAP v THE ATTORNEY-GENERAL OF FIJI & ANOR (Civ. App. 14/92 FCA) there was an award of $2500.00; in PRATAP (supra) the Fiji Court of Appeal discussed this item at some length and said that the "conventional sum should be $2500". Mr. Krishna accepts this sum. I would do the same and award this sum under Cap. 27.

Apportionment of damages

Apportionment of damages has to be considered as it involves a surviving spouse and 2 dependent children.

The widow should have a sum sufficient to maintain the children and herself although I note that she is employed at present and has an income. The damages are to be apportioned according to the childrens' different requirement and ages (KASSAM v KAMPALA AERATED WATER CO., LTD (1965) 2 All E.R. 875).

Usually the greater part of the total sum is awarded to the widow and to award comparatively small sums to the children themselves and a younger child is awarded more than an older child because the period of expected dependency is greater (DAMAGES FOR PERSONAL INJURY and DEATH 5th Ed. by David Kemp at p64-65).

On the basis of what I have stated above I apportion the said sum of $24540.00 as under the `Order' hereafter appearing.

Interest

The Plaintiff claims interest on the damages awarded. Under s3 of Cap 27 it is in the discretion of the Court to award interest at such rate as it thinks fit for the whole or any part of the period between the date when the cause of action arose and the date of judgment.

Here the cause of action arose on 8 October 1992. I award interest at the rate of $10 per centum per annum from that date to date of judgment (which is judgment on assessment of damages). Thereafter judgment carries interest at the rate of $4 per centum per annum until satisfied and no order of the Court is necessary.

Order

In the result I make awards as follows and there will therefore be judgment against the defendants in the sum of $37560 accordingly made up as follows:

(a) the sum of $2500.00 under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27 which is to be deducted from the sum awarded under Cap 29.

(b) the sum of $27040.00 under the Compensation to Relatives Act Cap 29 less $2500 in (a) above leaving the balance sum of $24540.00.

(c) the sum of $750.00 as special damages (funeral expenses).

(d) the costs of obtaining Letters of Administration to be taxed by the Chief Registrar in the absence of agreement.

(e) interest on the award in (b) above at the rate of $10.00% p.a. from 8.10.92 to 17.10.97 (date of judgment on assessment of damages) which amounts to $12270.00 and thereafter at $4.00% p.a. until satisfied to be paid to the Plaintiff.

(f) I allocate the said sum of $24540.00 (in (b) above) as follows:

Plaintiff $12270.00
Alvin Avinesh Ram $ 4090.00

Mithun Avinesh Ram $ 8180.00

$24540.00

I direct that the sums allocated to the two infant children be deposited in Court and the Chief Registrar is directed to pay out the same to the Public Trustee for the childrens' benefit and be paid out to them as and when he in his absolute discretion deems fit.

(f) The costs of this action are to be taxed unless agreed.

D. Pathik
Judge

At Suva
17 October 1997

HBC0244J.95S