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 p 573), FERO TABAKISUVA v SANT KUMAR & ERONI TOKAILAGI (C.A. 465/80) and DAYA RAM v PENI CARA & OTHERS (1983 29 FLR 147) 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 award the sum of $2500 under Cap. 27.
(b) 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."
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 (supra) at p 147 held that:
"the Supreme Court (now High 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, Caps. 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.
The judgment goes on to state:
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." (underlining mine for emphasis).
So under COMPENSATION TO RELATIVES ACT Cap. 29 I have to decide the amount of dependency of the Plaintiff. 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 an assistant joiner 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 ....." (emphasis added)
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. Subject to what I say hereafter the deceased earned $114.64 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'.
Multiplier
The multiplier of 16 has been agreed upon. The basis on which this has been arrived at is contained in the useful discussion of it
in Ms Basawaiya's written submissions. She said that:
The deceased was a young man 23 at the time of his death and would have worked until 55. However, in calculation of the multiplier
a discount must be made in recognition of the fact a lump sum award is being made now, rather than being spread over the lifetime
of the deceased as he would be expected to receive. It is unusual for the multiplier to be more than 18, per Byrne J in Heather Dianne Lotherington - Woloszyn -v- Makelesi Savou HBC 489 of 1993 at p19. In similar local cases where the age of the deceased was around 20 at time of death, multiplier has not
exceeded 16. In Ratu Viliame Dreunamisi -v- David Nag Ratnam FCA 66/92 where deceased was 21, multiplier of 15 used. In Kanta Mani -v- Western Mining Corporation FCA 72/91 deceased was aged 25 and married with a child, multiplier of 16 used. Likewise in Raj Kumar -v- Dharma Reddy FCA 62/83 a multiplier of 16 used for a 20 year old. In Daya Ram -v- Peni Cara FCA 59/82 deceased was aged 19 and the multiplier of 15 used. In this instance it is submitted that 16 would be an appropriate multiplier
given the above examples.
Multiplicand
At the time of his death the deceased's wages was $2.68 per hour on a 44 hours weekly basis. It is stated that he gave his pay packet
to his mother who in turn gave him $30.00 back as his pocket money.
Mr. Kapadia says that for a 44 hour week his gross earnings would be $117.92; if P.A.Y.E. of $3.00 per week is deducted from his wages,
it would give a figure of $114.64 per week net. After deducting his pocket expenses of $30.00 per week it would give a loss of
$84.64 per week. Therefore a multiplier of 3 years will give a figure of $13,203.84 for the first 3 years.
On this above basis Mr. Kapadia has worked out the loss on the multiplier of 6 and 7 years respectively. The details of how he calculated
this is as follows:
By that time his salary would have gone up much higher. If his net earnings (after P.A.Y.E.) then would be $132 per week on the basis
of 44 hours work ignoring the over-time, and if one deducts the deceased's own expenses of say $50.00 per week, it would give a net
loss of $82 per week and $4,264.00 per year. If a multiplier of six years is taken, it will yield a figure of $25,584 for that period.
On his own figures I see an error in calculation. The gross earnings is $132 and with $5.38 deduction for PAYE the net earnings would
be $126.62 and not $132.00 per week i.e. $3984.24 per year; and in 6 years it will come to $23905.44.
For the next 7 years Mr. Kapadia's calculation is as follows:
After 9 years of service, the deceased's experience would have increased considerably with prospects for higher wages. He would have
reached the status of a foreman. If his net earnings then be taken at the minimum of the scale at $11,984 per annum less P.A.Y.E.
$1,546.48, it would give a net figure of $10,437.52. If 25% thereof (or $2,996) is deducted for his own expenses, it would give
a net figure of $7,828.14 on a yearly basis and for 7 years, the loss would be $54,796.98.
Ms. Basawaiya worked out the damages on the basis of the salary as at date of death but did not make allowance for increase in salary
over the 16 year period (multiplier). I agree with Mr. Kapadia's basis of calculation which I consider is the proper basis.
It has been held that in assessing loss of earnings a Court should award the net loss after income tax has been deducted (BRITISH TRANSPORT COMMISSION v GOURLEY [1955] UKHL 4; (1956) AC 185 H.L; followed in Fiji in THE ATTORNEY-GENERAL OF FIJI v WAISALE NAICEGULEVU Civ. App. 22/89 FCA.
Subject to the amendments that I have already made hereabove to Mr. Kapadia's basis of calculation, I agree with the figure by way
of damages for the 3 years and 6 years of the multiplier of 16. But for the remaining period of 7 years I have this to say. The
deceased was 23 years of age at the time of his death. No doubt he would have married at a certain age and in this case I guess
it would have been say at the age of 32 although he may have married even some few years before that. In that case the dependency
would have been much less. Doing the best I can I would allow one third dependency and not what Mr. Kapadia has suggested, namely,
75% dependency. It should be vice versa and that it should be 331/3% dependency. On Mr. Kapadia's own figure it would come to $3479.17
per year ($11,984 p.a. less - $1546.48 PAYE = $10,437.52 - less 1/3 which is $3479.17) For seven years the amount would be $3479.17
x 7 = $24354.19.
Hence damages under the head of loss of earnings based on a graduated scale as stated is as follows:
For the first 3 years ($84.64 x
52 weeks x 3 years) 13,203-84
Subsequent 6 years ($76.62 x 52 weeks x 6 years)
23,905-44
Last 7 years ($3,479.17 x 7 years) 24,354-19
$61,463-47
The support for the claim in the graduated scale is to be found in the Fiji Court of Appeal judgment in KANTA MANI and WESTERN MINING CORPORATION (FIJI) LTD Civ App. No. 72 of 1995 at p.8 where it is stated:
"....whatever worth inflation or value of money in the future may or may not have, the age and expectations of the deceased at
death are pre-eminently important considerations. A further relevant matter, not adverted to apparently, by either party was the
possibility of further incremental allowances and the possibility of advancement in his trade."
(c) Funeral Expenses
In the writ of Summons the Plaintiff claimed the sum of $1000.00 but in the submission Mr. Kapadia is claiming $2000.
I allow the sum of $1000 as reasonable and this sum Ms Basawaiya also accepts. The test of reasonableness applies in such a case
bearing in mind the context of the Fiji situation where so many rites, rituals and traditions come into play once a person dies.
(d) Fiji National Provident Fund Contributions lost
The loss of employer's contributions as claimed is as follows:-
(1) For the first 3 years at $8.19
per week at $2.68 per hour weekly
wages for 44 hours
(8.19 x 52 weeks x 3 years) 1,277-64
(2) For the subsequent 6 years at
$9.24 per week at 7% on $132.00
p.w. wages
(9.24 x 52 weeks x 6 years) 2,882-88
(3) For the remaining 7 years at
$835.88 per annum at 7% on
$11,984-00 yearly salary
($835.88 x 7 years) 5,682-16
$10.032-68
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 evidence before me that the deceased was a contributor to the Fiji National Provident
Fund.
It appears that this aspect of the claim is allowable on the authority of KANTA MANI (supra) at p.23 where it is stated:
"The F.N.P.F. credit would have increased in time had the deceased survived by the amount of his wages, his employer's contributions,
and interest. In my view the prospective payments by the employer to the F.N.P.F. ought to be considered when the multiplier is
fixed. Those payments are an income substitute and would otherwise be available immediately for the benefit of the dependants.
As already discussed the dependants had a contingent interest in those future payments premised upon considerations of the disposition
of the F.N.P.F. credit on retirement or earlier natural death. Those contingencies must be brought to account.
Also at p.9 in KANTA MANI (ibid) on the question of whether this claim ought to have been pleaded or not it is pertinent to note:
"The question whether a claim under the F.N.P.F. should have been pleaded as special damages was but faintly raised before this
Court. Sufficient is it to say, that at the trial the matter was very much in issue, resulting in an order by the learned Judge
to deduct from the dependency loss a substantial part of the sum paid from the Funds. Certainly any claim for diminished benefits
in the future, arising on the premature termination by death, of payments both from employer and employee, would sound in general
damages. Clearly the matter should have been so pleaded as to appraise the defendant what issues it had to meet. Failure to do
so could result in an adjournment."
In this case evidence was given in regard to FNPF contribution and this formed part and parcel of the loss of earnings and an item
of loss payable to the dependants. Evidence as to FNPF contribution was raised during the hearing of assessment of damages and has
been allowed as a claim. [HELEN NINA WORK and RATU ISEI TURAGAKULA (C.A. 294/92 - judgment of SADAL J of 7.7.95)]
(e) Interest
The learned counsel for the Plaintiff at the hearing of the assessment of damages said that his client now claims interest on the
damages that will be awarded although he made no such claim in the Writ of Summons which he filed.
On Mr. Kapadia's insistence that his client is entitled to interest I heard argument on this aspect separately from both Counsel.
In the affidavit in support of this claim, Mr. Kapadia's Chief Clerk said that:
"it was only due to oversight which was not discovered until hearing on 4 December, 1997 that the relief for interest was not
included".
Earlier on, the affidavit stated:
"That since the decision of the Court of Appeal in Attorney-General v Waisale Naicegulevu (FCA 22/1989) in which our Mr. Kapadia
appeared for the respondent/plaintiff, our Office has adopted a practice to include a claim for interest on the award".
Mr. Kapadia relies on Or.20 r.5 of THE HIGH COURT RULES for leave to amend his Statement of Claim by adding an additional item of relief as follows:
"(e) The plaintiff also claims interest on the award at a rate of 5% per annum from the date of death, namely, 2nd March,
1996."
He submits that a Judge of first instance has power to allow amendment of pleadings at any stage before formal decision or judgment.
He argues that all that is being done is "to seek to cure an oversight."
He further says that the Fiji Court of Appeal decisions, on the aspect of interest, in TACIRUA TRANSPORT COMPANY LIMITED v VIREND CHAND f/n Ragho Prasad FCA Civ. App.33 of 1994 (judgment of 2.3.95) and ATTORNEY-GENERAL v WAISALE NAICEGULEVU FCA 22 of 1989 have no relevance to this application for amendment. He said that injustice would be done if the amendment sought
is not allowed "as the hearing in this case has not ended and judgment has not yet been given.
Ms. Basawaiya opposed the amendment as it is not pleaded (Or.18 r.14). The claim for interest is a remedy or relief and is not part
of the proceedings as such in this case.
(ii) Consideration of the amendment
In the Statement of Claim in the writ on which judgment was obtained there was no claim for interest at all. Now that this claim
has been made although belatedly and argued at length, I think I should consider it.
It is my respectful view that this is not the type of situation at the stage that this case has reached that Mr. Kapadia can properly
apply for amendment to his pleadings by an additional relief under Or.20 r.5. In the light of the authorities to which I shall refer
hereafter 'at any stage' in Or. 20 r.5 does not cover the situation, namely, the stage when assessment of damages hearing is taking
place after judgment has already been obtained on the Plaintiff's pleadings.
The fact that there was an oversight in not pleading interest is the Plaintiff's legal adviser's own fault. The Court is not here
to correct counsel's errors for a counsel is bound by his pleadings. It will be creating a dangerous precedent if I were to allow
the amendment sought.
(iii) Cases dealing with interest
The first case I would like to refer to on the subject of claim for interest is USHA KIRAN and THE ATTORNEY-GENERAL OF FIJI (Civ. App. 25 of 1989 delivered 23 March 1990). There the Fiji Court of Appeal referred to the English Order 18 Rule 8 under which
"it is mandatory to plead specifically any claim for interest under the English Act." The Appeal court said that there
is "no comparable rule in Fiji" and it stated that the following passage on interest in the 1985 'White Book' at note 18/8/10
"commends itself" to it:
"INTEREST - A claim for interest must be specifically pleaded whether it is claimed under s.35A of S.C.A. 1981 (see 0.1), r.4(1)
or otherwise, see para. (4) of this rule negativing Riches v. Westminster Bank Ltd [1934] 2 ALL E R 735. For s.35A, inserted by A.J.A. 1982, s.15(1) and Sched. 1, Pt.1, see Vol.2 Pt.17, para. 5161 para (4) which requires a claim for
interest to be pleaded reflects the fundamental principle that the pleading should give fair notice to the opposite party of the
nature of the claim which is being made against him, with the relevant facts relied upon, so as to enable him to meet such claim
and to prevent surprise at the trial. Thus, if the defendant has due notice of the plaintiff's intention to seek an award of interest
he will know the extent or totality of the plaintiff's claim and he can better calculate what sum, if any, he should pay into court
under O.22, r.1(8) or what sum he can fairly offer to settle the claim out of court, or even whether in all the circumstances he
should allow the plaintiff to enter judgment in default of pleading. The claim for interest must be pleaded in the body of the pleading,
and not only in the prayer though it should also be repeated in the prayer. (see O.18, r.5(1). It must identify precisely the ground
or basis on which it is claimed, and whenever possible, the date from which and the rate at which the interest is being claimed,
assuming, that is, that the date to which it is claimed is the date of judgment. If the interest is being claimed under s.35A, the
pleading should specifically so state, since it is not sufficient to state the claim as being "interest under the statute"."
The Appeal Court further stated:
"In our view it could be argued that Order 18 r.7(1)(b) requires that a claim for interest on damages or a debt which carried
no interest should be pleaded. There is statutory provision for granting interest on damages and if interest is sought it must in
our view be specifically pleaded. In the instant case there was no claim for interest at all."
Evidently in USHA KIRAN (supra) after counsel argued before the High Court interest was allowed on special damages only and this award was not challenged
on Appeal. The Appeal Court said that they are "not persuaded that the learned judge overlooked the issue" of interest
or that he erred in "not exercising his discretion to award interest on the $30,000" awarded for pain suffering and loss
of amenities.
The second case is that of WAISALE NAICEGULEVU (supra) (judgment delivered on 18.5.90) where the court referred to USHA KIRAN and stated:
"As to the second ground of the cross-appeal that the learned Judge ought to have upheld the claim for interest our answer is
short. The Respondent cannot succeed because he did not ask for interest in his pleadings nor did his Counsel raise the issue of
interest before the Chief Registrar, this latter fact was in fact taken in consideration by the learned Judge. Before us Mr. Kapadia
did not press the issue of interest. In fact he indicated that in future he would claim interest in his pleadings. (As to the need
to include claim for interest in pleadings see this Court's recent judgment in Usha Kiran v. Attorney-General - Civil Appeal No. 25 of 1989.)"
The third case is that of VIREND CHAND (supra) where with reference to section 3 of the Law Reform Act (supra) the Appeal Court said that "this provision must, however,
be regarded as subject to the general provision that a claim for interest, as for any other relief, must first be pleaded".
However the Appeal Court went on to say that:
"In the present case, not only was there no claim for interest in the Statement of Claim, but the topic of interest was apparently
not raised at the hearing and is not referred to at all in the written submissions made to the Judge on behalf of either party.
In these circumstances there was no power for the Judge to include the provisions for interest in his assessment of damages".
I have considered Mr. Kapadia's submissions on his claim for interest on the award I will make, and find that in the light of the
Court of Appeal decisions the interest claim should have been pleaded like any other relief.
The application to amend the Statement of Claim is for these reasons refused and hence there will be no award for interest on damages.
However on the authorities there is a case for award of interest on 'special damages' and in this case on the item 'funeral expenses'
of $1000 which I have allowed.
Under s3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27 the Court's power to award interest is entirely discretionary.
On interest under this Act BULLEN & LEAKE and JACOB'S PRECEDENTS OF PLEADINGS 12th Ed. at p 579 states:
"On the other hand, a claim for interest under the Act of 1934 is not itself a cause of action and forms no part of the debt or damages claimed (see Jefford v. Gee, ante, at 149). It is not necessary for the plaintiff to claim such interest in his pleadings, as the court can award interest under the Act of 1934
without any claim being made in the pleadings (Riches v. Westminster Bank Ltd. [1943] 2 All E.R. 725, C.A.). Nevertheless, in order to prevent surprise at the time and at least to alert both the opposite party and the court to the claim
for interest, it would be advantageous for the plaintiff who thinks he should be awarded interest under the Act of 1934 to include
an express claim for such interest in the relief which he asks for in his Statement of Claim either generally or stating the rate
of interest and the period for which it is claimed." (emphasis added)
On this aspect of interest under s3 of the Act, DU PARCQ. J in RICHES v WESTMINSTER BANK, LTD 1943 2 ALL E.R. 725 or 726 C.A. said and it is apt here:
"On the question of interest, which is a comparatively minor matter, although in this case of some importance, I wish to say
only this. I think that the plaintiff on the cause of action pleaded was not entitled to interest as of right and, therefore, that
the judge was at liberty, in the exercise of his discretion, to award interest under the Law Reform (Miscellaneous Provisions) Act,
1934, s3. The discretion which the judge has under that section seems to me to be as unfettered as any discretion can be, and I
think it would be a misfortune if we were to seek to import into this section the result of decisions on other sections of other
Acts of Parliament, or, indeed, the words of other Acts of Parliament which the legislature has not thought fit to reproduce. There
is nothing here about notice; there is nothing, as my Lord has said, to indicate that it is necessary-I say "necessary"-to
sate in the pleadings that it is intended to ask for interest. If one looks at R.S.C., Ord.20,r.6, it is quite clear, as it seems
to me, that such relief as this may always be given by the court, although it is not asked for in the pleadings. That rule says-I
am quoting only part of it-that relief may always be given as the court or a judge may think just to the same extent as if it had
been asked for. At the same time, I think it may be well to say that there is never any objection to stating in the statement of
claim that it is intended to ask for interest. I see that the latest edition of BULLEN AND LEAKE suggests that that should be done.
I do not agree that it is necessary that it should be done."
For these reasons I will only allow interest on special damages of $1000 being the funeral expenses from the date of death to date
of this judgment at the rate of 5% p.a.
ORDER
In the result I allow and make award as follows and there will therefore be judgment for the Plaintiff in the sum of $70,112.15 against
the defendant accordingly, being 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 $58,963.47 under the Compensation to Relatives Act Cap.29 (after deducting $2500.00 in (a) above).
(c) the sum of $10,032.68 for Fiji National Provident Fund contributions (employer's side)
(d) the sum of $1000.00 as special damages (being funeral expenses) together with interest thereon at 5% per annum amounting
to $116.00
I order costs against the defendant which is to be taxed unless agreed.
D. Pathik
Judge
At Suva
17 July 1998
HBC0515J.96S
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