Shanti v Amalgamated Transport Company Ltd [1997] FJHC 246; Hbc0372j.91s (24 October 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 372 OF 1991
(Lautoka High Court Action No. 381 of 1989)

Between:

SHANTI
d/o James Narsaiya
Plaintiff

and

AMALGAMATED TRANSPORT COMPANY LIMITED
Defendant

Dr. M.S. Sahu Khan for Plaintiff
No appearance of Defendant

JUDGMENT

In this action the Plaintiff as the Administratrix of the Estate of her son Mohammed Faizal Khan (the "deceased") claims against the defendant damages under Compensation to Relatives Act Cap. 29 and the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27. Letters of Administration was granted to the Plaintiff on 13 December 1989. The Plaintiff is the deceased's mother.

The deceased, who was employed by the defendant as a mechanic died on 3 January 1987 in the course of his employment with the defendant Company. The deceased was directing another employee driver of the defendant to manoeuvre the defendant's vehicle on to the ramp at the premises of the defendant for repairing purposes. The said employee manoeuvred and controlled the defendant's vehicle so negligently that he caused the same to run over the deceased. Consequently the deceased received severe injuries from which he subsequently died.

The Writ of Summons was served on Messrs. Mehboob Raza & Associates the then Solicitors for the defendant. There was change of solicitors when Messrs. Sherani & Company were appointed. A Statement of Defence was filed. Minutes of Pre-trial Conference was filed on 7 July 1990 and the issues were defined. On 18 June 1996 Mr. Kapadia sought leave to withdraw as solicitor for the defendant because of difficulty in obtaining further instructions in the matter.

Mr. Kapadia caused an affidavit to be filed on 10 June 1996 which stated that the Company was wound up on 9 December 1994 in the High Court in Companies Action No. 94/94.

The Official Receiver was informed of the hearing date of the action but he did not appear. The hearing proceeded on 9 April 1997 before me as an undefended action. The Plaintiff adduced evidence as to the circumstances leading to the accident and also other evidence for the Court to decide on the quantum of damages if the defendant is found liable for the accident.

Evidence as to liability

The evidence regarding the accident was given by MADHU MINAKCHI who is the Plaintiff's daughter. The deceased was her step brother and worked for the defendant company as a motor mechanic. Whilst in the course of his employment he died as a result of being "crushed" by the Defendant's bus. She with others visited the scene where the accident happened. They took photographs of the scene and tendered them to Court. She met Abdul Sattar there who worked with her brother. He told her how the accident happened; he said that the driver of the bus was a new driver having been there 2 or 3 days and he was being directed by the deceased (who was in front of the bus) on to the ramp when it moved forward and crushed him.

On the uncontradicted evidence before me I find that it was the negligent driving on the part of the Company's driver which killed the deceased.

I hold the defendant vicariously liable for this fatal accident in which the deceased died.

I therefore enter judgment accordingly for the Plaintiff against the Defendant as far as liability for the accident is concerned.

Quantum of damages

The deceased was 37 years old (born on 5 November 1950) at the time of his death. He was divorced from his wife. There are two children of the marriage, namely, MOHAMMED KHAIYUM KHAN born 8 October 1976 and MOHAMMED FAIZAL KHAN born 18 June 1983. They were completely dependent on him before his death. The second son is still at school.

The deceased earned $92.00 nett wages per week. He used to give the Plaintiff $30.00 per week. He was a healthy man and did not suffer from any illness.

Claim under Compensation to Relatives Act (Cap.29)

The right of action under this 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.

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."

Under section 4 of the Act the Plaintiff and the two children are entitled to claim as dependants.

The action is based upon financial loss (BLAKE v MIDLAND RLY CO (1952) 18 Q.B. 93).

As for damages for loss of earnings or what is described as "the lost years", the Fiji Court of Appeal in DAYA RAM v PENI CARA, TAITUSI LOMANI and WATISONI ROKOVEDRA (29 FLR (1983) p 147) held that:

"the Supreme Court had correctly held that damages for lost years were recoverable in Fiji but although the correct multiplier had been used the contribution which the deceased might have been expected to make to his family had been underestimated. Accordingly the quantum of damages under this head would be varied."

A very useful account of the implications of the two Acts, namely, Cap. 27 and 29 are given as follows in DAYA RAM (supra at p.149); it gives the basis on which loss of earnings in case of death is considered and which I have taken into account in this case:

"We turn now to the larger item namely loss of earnings for what are described as "the lost years". It is essential to remember throughout one's consideration of this topic the basis upon which such an award is made. It is not an award to dependants for the loss of support which they would have been entitled to expect had there not been the death of the breadwinner. Such claims are brought in Fiji under the Compensation to Relatives Act (Cap. 29). In such cases, in this and other jurisdictions, such a claim is calculated by examining the amount of money which dependent relatives had been receiving in the past for their support and which they might legitimately have expected to have received in the future provided the deceased had had the means to make such payments and could have been expected to continue making them. This was a purely mathematical calculation of how much he would have been worth in money terms to his dependants for what ever was the expected period of dependency. The present item of claim is quite different. It finds its justification in the Law Reform (Miscellaneous Provisions)(Death and Interest) Act Cap. 27. The claim is brought under section 2 and is for the benefit of the estate in respect of all causes of action which the deceased had at the time of his death. In the case of a person who is injured an action lies by him in tort for such damages as will represent in money terms his loss of future earnings; how he would have spent those earnings in the future is irrelevant to such a claim. By the statutory provision of Cap. 27 in the case of a man who is injured and dies the cause of action for the lost years vests in the deceased when he is injured and in the case of instantaneous death immediately before his death, and after death passes to his personal representative. Such claims are authorised in the English legislation by the Law Reform (Miscellaneous Provisions) Act 134 which is for the present purpose the equivalent of the Fiji Statute.

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 the deduction of personal living expenses. Authorities relied upon before this Court were Pickett v. British Rail Engineering Ltd. (1980) A.C. 136; Gammell v. Wilson (1980) 2 All E.R. 557 (C.A.) and (1981) 1 All E.R. 578 (H.L.) and White & Anor. v. London Transport Executive (1982) 1 All E.R. 410, and are not the subject of challenge."

Under Cap. 29 I have to decide the amount of dependency of the Plaintiff and the children. I have to also find a multiplier.

In considering the actual assessment of damages I refer to LORD DIPLOCK'S observation in MALLETT v McMONAGLE (1969) 2 All E.R. 178. He said:

"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."

In this case the deceased's only income was as a motor mechanic for the defendant; I have to ascertain his income and the amount he spent on himself and his living expenses and in doing so I have borne in mind the following words of LORD WRIGHT in DAVIES & ANOR v POWELL DUFFRYN ASSOCIATED COLLIERIES, LIMITED (1942) A.C. 601 at 617:

"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 ....."

On the evidence before me, the deceased earned $92.00 nett per week; he spent about $10.00 per week on himself. In a case such as this:

"..... 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." (per LORD MORRIS of BORTH-Y-GEST in MALLETT (supra).

Now I have to ascertain the figure for the dependency, namely, the sum of money or earnings or benefit which the Plaintiff derived from the deceased before he died. The deceased earned $92.00 per week nett and less his personal and living expenses gives us the 'datum figure' which is also known as the annual dependency or the 'multiplicand'. To arrive at the multiplicand, the exercise that one has to go through involves three stages which according to LORD WRIGHT'S dictum in DAVIES (supra) is:

"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 might mention at this stage that although in this case one of the dependants is the mother, it would not have made any difference in assessing the dependency if the dependant was the wife or widow of the deceased. It may be that the deceased would have remarried and his wife then would have become a dependant along with the two children. Section 4 of Cap 29 does allow for benefit of 'parent' when it states:

"Every such action shall be for the benefit of the wife, husband, parent and child of the person whose death has been so caused"

and "parent" in section 2 "includes father and mother and grandfather and grandmother and stepfather and stepmother".

The deceased's nett annual income would have been $4857.60 ($92.00 x 52); I would allow one-third of this for personal and living expenses on the part of the deceased. The dependency therefore comes to two-thirds of $4784.00 which is $3188 per year.

Multiplier

The next step is to arrive at an appropriate multiplier. At the time of his death the deceased was 37 years old. He led a good and healthy life; there is no evidence that he suffered from any sickness. He probably would have worked until he reached 55 years of age. I consider the loss of dependency as 18 years and I consider the appropriate multiplier to be 13.

The annual dependency of $3188.00 should be multiplied by 13 which gives the total award under Cap. 29 as $41444.00. From this sum the amount of $2500.00 under Cap 27 (see below) is to be deducted leaving the balance sum of $38944.00.

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

Loss of expectation of life

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 All E.R. at p.6 is 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 amount under this head for loss of expectation of life is limited to a moderate sum in Fiji. In SUBAMMA v CHANDAR (FCA Vol 82 p573), FERO TABAKISUVA v SANT KUMAR & ERONI TOKAILAGI (C.A. 465/80) and DAYA RAM v PENI CARA & OTHERS (Civ. App. 59/82 F.C.A. Vol 83 p50) the sum of $1250 was awarded. In JAI NARAYAN v THE ATTORNEY-GENERAL C.A. 611/93 and PARAS RAM v IVAMERE HOTCHIN & ORS. (C.A. 6/91 [LABASA]) and HARI PRATAP v THE ATTORNEY-GENERAL OF FIJI and Anor (Civ. App. 14/92 FCA) there was an award of $2500.00; in PRATAP (supra) the Fiji Court of Appeal discussed this aspect at length and said that the "conventional sum should be $2500". I would do the same and award this sum under Cap. 27.

Interest

The matter of award of interest has been dealt with in a number of cases (USHA KIRAN v THE ATTORNEY-GENERAL OF FIJI (Civ. App. 25/89 FCA), TACIRUA TRANSPORT COMPANY LIMITED v VIREND CHAND f/n Ragho Prasad (Civ. App. 33/94 FCA) and ATTORNEY-GENERAL OF FIJI, DOCTOR HUBERT ELLIOT v PAUL PRAVEEN SHARMA (Civ. App. 41/93 FCA). The Plaintiff has specifically pleaded interest as required and is therefore entitled to claim same in respect of the damages that I have awarded.

It was held in PICKETT and BRITISH RAIL ENGINEERING LTD (1980) H.L. 136 at 137, which was a case of personal injuries, that "interest on general damages was awarded for the purpose of compensating a plaintiff for being kept out of the capital sum between the date of service of the writ and judgment...."

In ROTHMANS PALL MALL (FIJI) LIMITED v EDWARD NARAYAN (Civ. App. No. 65/95S) at p.8 there was some discussion on the date the interest should start. It went as follows:

"His Lordship awarded it from the date of the accident but Mr. Sweetman informed us that Fiji practice is to take the date the proceedings were issued as the starting date, and we did not understand Mr. Shah to disagree, although he said there were cases when by agreement it ran from the accident date. Mr. Sweetman referred us to the decision of the House of Lords in Wright v British Railway Board [1932] 2 All E.R. 698, in which the date of commencement of the proceedings was taken. There are arguments for selecting either date. Counsel did not dispute that interest was a matter in the discretion of the trial judge and we are not disposed to interfere with his decision that it should run from the date of injury to the date of trial."

Under section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27 there is discretion in the Court to fix rate of interest which should be paid. The section provides:

"3. In any proceedings tried in the (High) Court for the recovery of any debt or damages the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the 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 the judgment:....."

In the exercise of my discretion I will award interest on the damages from the date the cause of action arose i.e. from the date of accident to date of judgment i.e. 24 October 1997 being the date of assessment of damages judgment at the rate of 8% per annum. Thereafter judgment will carry interest at the rate of 4% p.a. until satisfied and no order of the Court is necessary.

Fiji National Provident Fund Contributions Lost

Under Fiji National Provident Fund Act Cap. 219 there is a deduction of 7 cents in the dollar from the wages of an employee and a similar amount is contributed by the employer towards the employee's FNPF contribution.

There is no evidence before me that the deceased was a contributor to the Fiji National Provident Fund. Although it is in evidence that he earned $92.00 nett per week, there is nothing before one to indicate what his basic salary was and what, if any, deductions were made including FNPF deduction.

Although the deceased would have been entitled to the contribution of 7% (employer's side) which he has lost through his death (KANTA MANI and WESTERN MINING CORPORATION (FIJI) LTD (Civ. App. No. 72/91 FCA), in the absence of any evidence in this regard and more importantly in the absence of any claim for it in the pleadings I am unable to allow same. This item of claim was merely included in Dr. Sahu Khan's written submission unsupported by any evidence.

Apportionment of damages

Apportionment of damages has to be considered as it involved the Plaintiff (whom he supported) and 2 dependant children.

The Plaintiff should have a sum sufficient to maintain the children and herself. The damages are to be apportioned according to the children's 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 Plaintiff (in this case the deceased's mother) 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. David Kemp at p64-65).

On the basis of what I have stated above I apportion the said sum of $41444.00 as under the 'Order' hereafter appearing.

Order

In the result I make awards as follows and there will therefore be judgment for the Plaintiff against the Defendant accordingly:

(a) the sum of $41444.00 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) (i) the sum of $41444.00 under the Compensation to Relatives Act Cap. 29 less $2500 in (a) above leaving the balance sum of $38944.00

(ii) interest on the award in (b) above amounting to the sum of $33770.00 calculated at the rate of $8% p.a. from 3 January 1987 to 24 October 1997 (date of judgment on assessment of damages) and thereafter at $4% p.a. until satisfied.

(iii) the total award and interest amounts to $72714.00 (made up of items in (b) (i) & (ii) supra).

(iv) I allocate the said sum of $72714.00 as follows:

SHANTI (mother/plaintiff) $24238.00

MOHAMMED KHAIYUM KHAN

born 8.10.76 $21476.00

MOHAMMED FAIZAL KHAN

born 18.6.83 $27000.00

It is ordered that out of the said sum of $72714.00 the sum of $27000.00 (being the infant Mohammed Faizal Khan's share) be paid into Court and the Chief Registrar is directed to pay out the same to the Public Trustee for the infant's benefit to be disbursed as he in his absolute discretion deems fit until the infant reaches the age of 21 years or sooner marries whichever is earlier. The balance out of the said sum of $72714.00 i.e. $45714 is to be paid out to the solicitors for the Plaintiff to be disbursed as apportioned hereabove to the Plaintiff ($24238.00) and the son Mohammed Khaiyum Khan ($21476.00)

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

D. Pathik
Judge

At Suva
24 October 1997

HBC0372J.91S