Daino v Attorney-General [1998] FJHC 97; Hbc0515j.96s (17 July 1998)

Fiji Islands - Daino v Attorney-General - Pacific Law Materials

IN THE HIGH COU FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 515 OF 1996

BETWEEN:

ALUSIO DAINO

Plaintiff

AND:

ATTORNEY-GENERAL

Defendant

Mr. R. I. Kapadia for the Plaintiff

Ms. N. Basawaiya for the Defendant

JUDGMENT

The Plaintiff ALUSIO DAINO (the "plaintiff") who is the Administrator of state of the deceased his shis son Apimeleki a.k.a. Apimeleki Taukeinikoro (the 'deceased') has sued the defendant for damages under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27 and under the Compensation to Relatives Act Cap.29.

The defendant admitted liability and judgment was entered by consent on 18 April 1997 with damages to be assessed.

ass=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> Particularshe deceased

The deceased died on 20 March 1996 at the age of 23 years. He enjoyed good health and led a happy life.

He had Form VI tion. Thereafter he did a four Aear Apprentice Course in carpentry and joinery at thet the Fiji Institute of Technology and one year of practical training and received his Trade Certificate on 20 September 1995.

Circumstances of death

While in the courshis employment with the Government of Fiji in the Public Works Department at Richards Road,Road, Suva, he received a severe electric shock when he was using an electric water blaster. Internalt in the water blar blasting machine resulted in the base frame and the handle of the machine becoming alive with 240 volts. Aonsequence he was electroectrocuted and died.

The claim

Thentiff's claims are as follows:

(a) & Damages utheRefw Reform (Mrm (Miscellaneolaneous Provisions) (Death and Interest) Act Cap. 27.

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(b) &nbssp; & sp;& Damages under the Csmpensapensation to Relatives Act Cap. 29.

langB styont-f: Times New Roman"> p class=MsoNormoNormal style="text"text-inde-indent: -nt: -36.0pt; margin-left: 72.0pt; margin-top: 0; margin-bottom: 0"> (c) ;&nbssp; Funeralneral Expenses

(d)  p;&nssp; Loss of F.N.PF.N.P.F. (employer's) contributions.

(e) &nbssp;&nnsp;& Isp; Interesterest

/p>

Quantum of damages

(a)& Damages under the Law Lao Reform (Miscellaneous Provisions) Act Cap.27

Loss of expectation of life >

For a clnder Cap.27 different considerations apply from Cap.29. In consng this aspect thct thct the following passage from the judgment of LORD MORRIS of BORTH-Y-GEST in YORKSHIRE ELECTRICITY BOARD v NAYLOR (1967) 2 All Et 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 provisof s of the Law Reform (Miscellaneous Provisions) Act, 1934, that cause of action survived for the benefit of his estate. udge o decide what sum of m of damages should reasonably be awarded in respect of the deceadeceased's cause of action. He lost is us called his ehis expectation of life. The loss was something pelsonal to himselfmself. No one what life would ctld ct have held for him had he lived. No one ever know. Nop; No one could enor knor know. The chances, theges andssindssituf the future are are in the future. He will now know them.&nbs. No surmise cth any measureasure of confidence be made whetheris uny death he was deas denied happiness or was spared unhappinappiness. The of "equating inco incommensurables" is one that cver be satisfactorily achieachieved."

The amount under this head for loss of expectation of life is limit a moderate sum in Fiji.&nbi. ISUBAMMA 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 ATTO 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)&nClaim under Compensation to Relatives Act (Cap.29)

The right ofon under this Act confers on the near relative a right which is an independent right and nond 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 defauld the act, neglect or defaudefault 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 fial 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 Hight) had correctly held that damages for lost years were recoverable in Fiji but although theh 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 qm of dama damages under this head would be varied."

p class=MsoNormalormalormal style="margin-top: 0; margin-bottom: 0"> A very useful account of the implications of the two Acts, namely, Ca7 and 29 are given as follofollows 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 descris "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 n award to dependantndants for the loss of support which they would have been entitled to e had there not been the deae death of the breadwinner. Such claims aought in Fiji Fiji under the Compensation to Relatives Act (Cap.29). In such cases, in tnd othe other jurisdictions, such a claim is calculated by examining the amount of money whependent relatives had been 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 matheml ical 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 aim is quis quite different.

The judgment goeso state:

p class=MsoN=MsoNormal style="margin: 0 36.0pt"> It finds its justification in the Law Reform (Miscellaneous Provisions)(Death and Interest) Act Cap. 27. Thim is brought under sect section 2 and is for the benefit of the estate in respect of all causes of action which the deceased hathe time of his death. In the cf a person who is o is injured an action lies by him ihim 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 auted in t 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 behf a deceased estate for loss of earnings for lost years is now firmly established as on then 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 (19 All E.R. 578 (H.L.) and White & Anor. v. London Transport Executive (1982) 1 All E.R. E.R. 410, and are not the subject of challenge." (underlining mine for emphasis).

So under Cap. 29 I have to decide the amount of dependency of thof the Plaintiff. I have to also finultiplieiplier.

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 correspith our Compensation to Relo 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 to aain his income anme anme and the amount he spent on himself and his living expenses and in doing so I have borne in mind the folg words of LORD WRIGHT in DAVIES & ANOR v POWELL DUFFRYN ASSOCIATED CTED 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 maof poundpounds, shillings and pence, subject to the element of reasonable future probabilities. The starting pos thent of t of wages which the deceased was earning, the ascertainment of which to some exme extent may depend on the regularity of mployment. Then there is an est of hoof how much was required or expended for his owns own personal and living expenses. The be will give a datu>datum or basic figure which will generally be turned into a lump sum by taking a certain number of yeaurchase ....."&nb"> (sis added)

Iase 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 MORRIS of BORTH-Y-TH-Y-GEST/span> in MALLETT (supra).

Now I have to ascertain the figor the dependency, namely, the sum of money or earnings or benefit which the Plaintiff deri derived from the deceased before he died. Subject to what I say herrafter 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/p>

The multr of 16 has been agreed upon. Tsis on which this has bees been arrived at is containetained 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. er, iculation of the mthe mthe multiplier a discount must be made in recognition of the fact a lump sum award is being made now, rathan being spread over the lifetime of the deceased as he would be expected to receive. nbsp; It isual for the mult multiplier to be more than 18, per Byrne J in Heather Dianne Lotherington - Woloszyn -v- Makelesi Savou HBC 489 of 1993 at p19. Iilar cases where the agee age of the deceased was around 2und 20 at time of death, multiplier has not exceeded 16. In Ratu me Drisi -v- Dav- David Nag Ratnam FCA 66/92 where deceased was 21, multiplier of 15 us15 used. >Kanta Mani -v- Westering ring Corporation FCA 72/91 deceased was aged 25 and married with a child, multiplier of r of 16 used. Likewise in Raj Kum- Dharma Reddy FCA 62/83 a multiplier of 16 used for a or a 20 year old. In Daya Ram -v- Peni FCA 59/82 decease aged 19 and the multiplier of 15 used. In this instance it is submitted that 16 woul would be an appropriate multiplier given bove examples.

ass=MsoNormoNormaNormal style="margin-top: 0; margin-bottom: 0"> &nbs>

Multiplicand

At the time of his death the deceased's wages was $2.68 per hour on a 44 hours weekly basisp; It is stated that he gave gave his pay packet to his mother who in turn gave him $30.00 back as his pocket money.

Mr. Kapadia says for a 44 hour week his gross earnings would be $117.92; if P.A.Y.E. of $3.00 per week is deis deducted from his wages, it would give a figure of $114.64 per week net. After deducting his pockpe expenses of $30.00 per week uld give a loss ooss of $84.64 per week. Therefore a multiplier yea3 years will give a figure 3,203.8203.84 for the first 3 years.

On this above basis Mr. Kapadia hrked out the loss on the multiplier of 6 and 7 years respectively. The details of howf how he calculated this is as follows:

&nbspan>

By that time his salary would have gone up much higher. If his net earnings (aftA. 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 o per week and $4,264.00 per0 per year. If a multiplier of six yisrs is taken, it will yield a figure of $25,584 for that period.

&n/span>

On his own figures I see an error in calculation. The gross eas is $132 and 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.dia's calculation is as follows:

0"> After 9 years of service, the deceased's experiwould have increased considonsiderably with prospects for higher wages. He would have reached tatustatus of a foreman. If his arnings then be take 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 fiof $1.52. If 25% thereof (or $2,996) is deducteducted for his own expenses, it would give 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 deut did not make allowance fnce for increase in salary over the 16 year period (multiplier). I awith Mr. Kapadia's basi 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 loter income tax has been dedn 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 hereabove to Mr. Kapadia's basis of calculation, I agree wree with the figure by way of damages for the 3 years and 6 years of the multiplier of 16. But for tmaining period ofod of 7 years I have this to say. The deceased23 years of agof age at the time of his death. No doubt he woule married ried at a certain age and in this case I guess it would have been say at the age although he may have married even some few years before thre that. at case the dependency&nbsy wouve been much less.&nbsp Doing tst I can I would alld allow one third dependency and not what Mr. Kapadia has suggested, namely, 75% dependency. houldice vand that it shoulshould be 331/3% dependency. On . On Mr. Kapadia's own figure it would comd come to $3479.17 per year ($11,984 p.a. - $1546.48 PAYE = $10,437.52 - less 1/3 which is $3479.17) For seven years the amount wouldwould be $3479.17 x 7 = $24354.19.

Hence da under the head of loss of earnings based on a graduated scale as stated is as follows:

For thet 3 years ($84.64 x

52 weeks x 3 years) &nnsp;&&nsp;;&nspp;&nssp;&nsp;  p;&nssp;  p; &nbp; &nbp; p;&nsbsp;;&nbssb;&nnbsp;&nbp;  p; &nnsp;&nbs; &nbp;&nbsp &nsp; &bsp;;nbspp &nbs;  p;&nssp; &&nbsbbsp; nbsp; nbsp; &nbsb;&nn&nbssp; &nbsp&nbsp &nbs; &nbp;&nnbsp; &nbp; &nbs; &nbp;&n1sp; 13,2 3-84

< Subsequent 6 years ($76.62 x 52 weeks x 6 yx 6 years) &&nsp;;&nspp;&nssp; &nbp;  p;&nssp;  p; &nbp;&nbbsp;&&sp;& p;&nbbsp;& p; &nnbsp;&nbp; &nsp; &bsp; nbsp;nbsp;&nbsp nbbsp;& &nbp; &nbp; &nnbp;& &nnbsp;& p;&spp;&nbbsp;bbsp; ;&nbssbsp; &nbsp &bsp; nbspp&nbssp; &&nbp; &bsp;&nbs; nbspp nbss;&nbbsp &nbs; &nbbsp; 23,905-44n &nb"> p classclass=MsoNormal style="text-indent: -360.0pt; margin-left: 396.0pt; margin-top: 0; margin-bottom: 0"> Last 7 years ($3,479.17years) &nsp; &&nbp;;&nbpp; &nnsp; &nbp; &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; &nbssp; &&nsp;;&nsp; &nbp; &nnbp;&&nbp;; 24,354-19

$61,463-47

The support for the claim in the grad scale is to be found in the Fiji Court of Appeal judgment ment 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 ad expectations of the deceadeceased at death are pre-eminently important considerations. A furtelevant matter, not not adverted to apparently, by either party was the possibility of further incremental allowances and the possibility of advancement in hise."

(c)  p;&nssp; Funeral ExpenExpenses

&

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 rable and this sum Ms Basawaiya accepts. Tsp; The test of reasonesseness appliesplies 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) &nFsp; Naji nalioroviPent Fent Fund Contributions lost

&

ass=MsoNoMsoNormal rmal stylestyle="mar="margin-tgin-top: 0op: 0; margin-bottom: 0"> The loss of employer's contributions as claimed is as follows:-

(1) & p; bsp; For the first 3 years at $8.t $8.19

per">per week at $2.68 per hour weekly

wages for 44 hours

(8.19 x 52 weeks x 3 years)  p;&nbbsp;&nsp; &nsp;  p; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& &nbnbspp; &bsp; &bsp; &nbbs;&nnbsp; &nsp; &nbp;;nbsp; & &nbbp; &nbs; &nbn;&nbnbsp;;&nbssp;&&nbsp &nnbsp;7<64<>/bi>

< /b>

ass=Mmal s"te s"text-indentndent: -36: -36.0pt;.0pt; margin-left: 72.0pt; margin-top: 0; margin-bottom: 0"> (2) ; For; Fe thsequbsequent 6 nt 6 years at

$9.24 per week at 7% on $132.00

p.w. wages

(9.24 x 52 weeks x 6 years) ;&nbssp; &nsp; &nsp;  p; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& &nn &bsp; &bsp; &&nbp;; &nnsp;& &nsp;&nsp;&nbs; &bsp; &nbssp;&nnbp; &nsp; &nbbp;&n;;&nbssp; &nbs; &nnbsp;2<88<>/bi>

< /b

(3) ; For; Fe thainimaining 7 yg 7 years at

$835.88 per annum at 7% on

$11,984-00 yearly salary

($835.88 x 7 years)  p; &nsp; &nbbsp; &nbbsp; &nbp; &nbp; &nbnp;&& &nnbsp; &nbp; &nbp; &nnbp;& &bsp;&nbbsp;&nbs; &nbs;  p; &nnsp;&&nsp; &nbp; &nbnsp;&;;bspsp; &nbp; &nnbsp;;&nbssp; &nnbsp& &bsp;&nbp; nbsp; &nnbsp; p;&bsp;&bsp;&nbp; nbsp; &nbss; &nbsp 5,682-16>/b>

&nb">

$10.032-68

Under Fiji National Provident Fund Act Cap.here is a deduction of 7 cents in the dollar from the wageswages of an employee and a similar amount is contributed by the employer towards the employee's FNPF contribution. There is evidencere me thae that the deceased was a contributor to the Fiji National Provident Fund.

span> 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. view the prospective paym payments by the employer to the F.N.P.F. ought to be considered when the multiplier is fixed. Those nts are an income sume substitute and would otherwise be available immediately for the benefit of the dependants. As already died the dependependants 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 ngencies must be broe 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 ito say, that ahat 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, wouldd in general damages. Clearly ttter should have have been so pleaded as to appraise tise the defendant what issues it had to mnbsp; Fap; Failure to do so could result in an adjournment."

In this case evidence was given in regard to FNPF contributid this formed part and parcel of the loss of earnings and aand an item of loss payable to the dependants. Evidence as to FNPF cbutiobution was raised during the hearing of assessment of damages and has been allowed as a claim. [HELEN NINA WORK anU ISEI TURAGAKULA (C.A. 294/92 - judgment of SADAL J of 7.7.95)]

(e) &nbbsp;& bsp; 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. Kapa insistence that his client is entitled to interest I heard argument on this aspect separatparately from both Counsel.

In the affidavisupport of this claim, Mr. Kapadia's Chief Clerk said that:

"it was only due to oversight which was not discovered until hearing on ember, 1997 that the reliefelief 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/ in which our Mr. Kapadia adia 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 for leave to amend his Statement of C of Claim by adding an additional item of relief as follows:

ass=MsoNormal stal style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 0; margin-bottom: 0"> "(e) The plaintiff alsomslaite inte interest on the award at a rate of 5% per annum from the date of death, namely, 2nd March, 1996."

n lanGB style="foe="font-fant-family:mily: Times New Roman"> He submits that a Judge of first instance has power to allow amendment of plgs at any stage before form formal decision or judgment. He arghat all that is bein 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 injusticld beld 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 thndment as it is not pleaded (Or.18 r.14). The claim for interesa rema remedy or relierelief and is not part of the proceedings as such in this case.

(ii) & &nsp; Consideration of the ment

In the Statement of Claim in the writ on which jut was obtained there was no claim for interest at all.&nbsp &nbsw that this claim has bhas been made although belatedly and argued at length, I think I should der it.

It is my respectful view that this is not the type of situation at the stage that this cas reached that Mr. Kapadia adia can properly apply for amendment to his pleadings by an additional relief under Or.20 r.5. In tght of the authoritiesities to which I shall refer hereafter 'at any stage' in Or. 20 r.5 does not cover the situation, namely, tage when assessment of damages hearing is taking place after judgment has already been obtn 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 hereorrecorrect counsel's errors for a counsel is bound by his pleadings. It will be creating a danserous precedent if I were low the amendment sought.

(iii) Cases dealing with interest

The first case I would like to refer to on the subject of claim for inters USHA KIRAN and THE ATTE ATTORNEY-GENERAL OF FIJI (Civ. App. 25 of 1989 delivered 23 March 1990). There the Fiji Court peal peal referred to the English Order 18 Rule 8 under which "it is mandatory to plead specifically any claim for interestr the English Act." The Appeal court said that there is "no comparable rule in Fiin 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 be specifically pleaded whether it is claimed under s.35A of S.C.A. 1981 (see 0.1), r.4(1).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 b.A. 1.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 princthat the pleading should give fair notice to the opposite pite 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 thendant has due due notice of the plaintiff's intention to seek an award of interest he will know the extent or totality of the piff's claim and he can better calculate what sum, if any, he should pay into court under O.er 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. Taim for interest must be t 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(1sp; It must 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 iat the date to which it is t 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 oebt which carried no interenterest should be pleaded. There is tory provision foon for granting interest on damages and if interest is sought it must in our view be specifically pleaded. In nstant case there was nwas no claim for interest at all.&quspan>

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 Coaid that they 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 $30,00t; awarded for pain sufferiffering and loss of amenities.

The second case is that of WAISALE NAICEGULEVU (supra) (judgment deli on 18.5.90) where the cour court referred to USHA KIRAN and stated:

"As to the second ground of the cross-appeal that the learned ought to have upheld the claim for interest our answer is r is short. The Respondent cannot su beed 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 faken in consideration by the learned Judge. Before usre us Mr. ia did did not press the issue of interest. In fact he indicatat in fuin future he would claim interest in his pleadings. (Ashe need to include clai claim for interest in pleading thist's recent judgmeudgment in Usha Kiran v. Attorney-General - Civil Appeal No. 25 of 5 of 1989.)"

The third case is thati>VIREND CHAND (supra) where with reference to section 3 of the Law Reform Act (supra) pra) 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:

"e present case, not only was there no claim for interest inst 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 fterest on the award I will make, and find that in the lightlight 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 wi no award for interest on d on damages. However on the authorither there is a case for award oerest on ' 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) ( and Interest) Act Cap 27 the Court's power to award interenterest is entirely discretionary.

On interest under this Act BULLEN &ampKE and JACOB'S PRECEDENTS OF PLEADINGS 12th Ed. at p at p 579 s:

"On the other hand, a claim for interest u 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 nece for the 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 plead/u> (Riches v. Westminster Bank Ltd. [1943] 2 All E.R. 7.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 sthe Act, DU PARCQ. J in RICHES v WESTMINSTER BANK, LTD 1943 2 ALL E.R. 725 or 726 C.A. said said and it is apt here:

"On the question of interest, which is a comparatively mino 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 discretiich the judge udge 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 thult oi decisions on other sher sections of other Acts of Parliament, or, indeed, the words of other Acts of Parliament which the legire has not thought fit to reproduce. There is nothing here about notice; there is nots 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 onks atC., Ord.20,r.6, r.6, i.6, it is quite clear, as it seems to me, that such relief as this may always be given by the court, althot is not asked for in the pleadings. That rule says-I am quoting only part of it-that-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,ink it mait may be well to hat there is never any obje objection to stating in the statement of claim that it is intended to ask for interest. I see that atestion of BULf BULLEN AND LEAKE suggests that that shouldhould be done. I do not agree that it is necessary that it should be."

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 therefo judgment for the Plaintiffntiff in the sum of $70,112.15 against the defendant accordingly, being made up as follows:

(a)  p; &nsp; the sum of $2500.00 under nder the Law Reform (Miscellaneous provisions) (Death and Interest) Act Cap.27 which is to be deducted from the sum awarded under Cap.29.

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(b) &nnbsp;; bsp; the sum of $58,963.47 under tder the Compensation to Relatives Act Cap.29 (after deducting $2500.00 in bove).

(c) the sum of $10,0$106032.r for Fiji National Provident Fund contributions (employer's side)

&an"> nbsp; (d) the sum of $1000.0spas al cial 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 s agreed.

D. Pathik

Judge

At Suva

17 July 1998

HBC0515J.96S