|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
CIVIL ACTION NO. 40 OF 1996
Between:
BIBI NANSON father’s name Mohammed Hussain
of Vatudova, Labasa, as Administratrix in the
Estate of Sanjay Narayan f/n Narayan Sami
Plaintiff
And:
RAMESH CHAND f/n Hem Raj
DATELINE TRUCKERS LIMITED
Defendants
Mr. A. Kohli for the Plaintiff
No appearance for the Defendants
JUDGMENT
(Assessment of Damages)
On 26 August 1996 the plaintiff Bibi Nanson issued a writ of summons against Ramesh Chand (first defendant) and Dateline Truckers Limited (the second defendant) to recover damages for the death of her son Sanjay Narayan (the ‘deceased’). The New India Assurance Company Limited is Third Party (insurers) and it has been served with notice of hearing of assessment of damages.
On 9 December 1997 Judgment by Default was obtained by the plaintiff against the defendants as no Acknowledgment of Service was filed. It was ‘adjudged that the said Defendants do pay the Plaintiff damages to be assessed’
Notice of hearing of Assessment of Damages was served on the defendants and the said insurer. They failed to appear and the hearing concluded after evidence was adduced by the plaintiff.
Background facts
The plaintiff is the mother of the deceased and the Administratrix in the Estate of Sanjay Narayan by virtue of Letters of Administration Number 28885 granted her on 7 May 1993.
The first defendant was the servant or agent of the second defendant and the driver of motor vehicle Regd. No. BY550; the second defendant was the owner of the said vehicle.
On 17 November 1990 the first defendant whilst driving the said vehicle on Nabouwalu/Labasa Road struck the deceased Sanjay Narayan thus knocking him down as a result whereof he died. This accident occurred because of negligent driving on the part of the driver.
The first defendant was in the first class Magistrates Court at Labasa convicted of the offence of causing death by dangerous driving on 14 December 1992 and fined $150.00 in default 4 months and sentenced to one year’s imprisonment suspended for 2 years and disqualified from holding or obtaining a driving licence for a period of 12 months.
The person for whose benefit this action is brought is Bibi Nanson, the plaintiff.
At the time of his death the deceased was about 33 years of age.
The injuries received by the deceased were, inter alia, ‘multiple organs rupture including all the thoracic and abdominal organs’ and ‘severe extensive multiple injuries’.
The claim
The plaintiff claims against the defendants special and general damages under the various heads as follows: (a) funeral expenses in the sum of $1000.00; (b) under Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap.27 damages for the benefit of the Estate, (c) compensation under Compensation to Relatives Act, Cap 29, (d) General Damages, (e) Interest on damages and (f) costs.
Heads of damages
I shall now consider these heads of damages.
The special damage claim relates to funeral expenses.
In this connection, for ease of reference, I repeat below how I dealt with this aspect in 1994 in Rupeni Navunisarvi v Pradeep Kumar and Raja Ram (40 FLR 58 at 65-66). This is what I said:
“Although there is no definition of ‘funeral expenses’, in Cap.29 it provides in s.11 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”; it would appear therefore that the test of reasonableness would apply.
Some indication of what the word “funeral” is usually taken to comprehend has been stated by Mayo J. in Public Trustee v Bednarezyk (1959) SASR 178 at 180 (quoting from book by Luntz on Assessment of Damages 3rd Ed. p.439) as follows:-
“The word ‘funeral’ is usually taken to comprehend the disposal of human remains including accompanying rites and ceremonies, that is to say, the procedure of, and appertaining to, burial or cremation, in the course of which the body is prepared for burial and conveyed by cortege to the necropolis. Such initial stages as acquisition of burial plot, public notice, obtaining a certificate of death, permission to cremate or bury, will form part of the procedure and the cost will be funeral expenses”.
According to custom there are certain expenses, such as in this case, for the “reguregu” that one cannot avoid and it certainly is part of the expenses relating to the funeral of the deceased. In the Fiji context, bearing in mind the traditional Fijian ceremony associated with the funeral I will allow a reasonable sum under this head. In Kesi Ganikeli Liva v Mahendra Pal Chaudhary (Supreme Court C.A. 391/79) the then Chief Registrar (now Scott J) awarded the sum of $1500 for funeral expenses; and in Shiu Shankar s/o Madhwan & Anor (Sup Ct. Ltk. C.A. 31/74) Dyke J stated that “religious rites following the death of a Hindu person are reasonable and the claim under this head is allowed”.
On the evidence before me I award the sum of $1500 for funeral expenses as special damages which is the same amount which I awarded in Rupeni (supra).
(a) Damages under Laws Reform (Miscellaneous Provisions)(Death and Interest) Act, Cap. 27
For a claim under Cap 27 different considerations apply as for Cap 29.
In considering damages under this head, the following extract from the judgment of Lord Morris in Yorkshire Electricity Board v Naylor (1967) 2 All E.R. at 6 is apt:
“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 changes. The chances and vicissitudes of life 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 solely in regard to loss of expectation of life and is limited to a moderate sum in Fiji.
The Act provides that every such action shall be for the benefit of the wife, husband, parent and child of the person whose death has been so caused (section 4). The word “parent” has been defined under the Act to include father and mother. Here the action has been commenced by the Plaintiff as Administrator of the Estate on behalf of herself, the deceased’s mother.
In line with awards made in the past by the Courts, I award the sum of $1250.00 under this head.
Following the decision in Davies & Anor v Powell Duffryn Associated Collieries Ltd [1942] AC 601 this award will merge into the award under the Compensation to Relatives Act.
(a) Claim under Compensation to Relatives Act (Cap.29)
The right of action under the Compensation to Relatives Act (Cap.29) 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.
An action is maintainable as provided for under section 3 of the Act which 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 s4 of the Act (Cap.29) the Plaintiff is entitled to the claim as a dependant for herself (as mother)
The action is based upon financial loss or loss of support and nothing else; it gives no solatium for mental distress (Blake v Midland Rly Co [1852] EngR 10; (1852) 18 Q.B. 93). In this case the deceased died the same day, hence no claim for pain and suffering arises as no damages is given for pain and suffering when unconsciousness and death followed the injury within a very short time (Hicks v Chief Constable South Yorkshire Police [1991] UKHL 9; [1992] 2 All ER 65).
As an aid to assessing damages in a case such as this I refer to the following passage from the judgment of Singleton L.J in Waldon v War Office (1956) 1 WLR 51 at 55:
“A judge in assessing damages draws upon his own experience. Where does he get that experience? From knowledge of other judges’ decisions as to amount; from knowledge of what is said in this court and in the House of Lords; and from his ordinary experience in life.. .. The judge realizes that his task is to assess damages in the particular case before him, and upon the evidence before him and upon nothing else. If he can get help from decisions of other judges, or from this court, I am inclined to think that in his discretion he might well accept it. It is for him to judge”.
In Fletcher v Autocar and Transporters Ltd [1968] 2 Q.B. 32 Salmon L.J. stated at 363 - 364:-
“On the other hand, the full amount of perfect compensation manifestly cannot be given for pain and suffering or loss of amenities for the simple reason that, in the nature of things, there can be no perfect compensation in relation to such matters .... To my mind the damages awarded should be such that the ordinary sensible man would not instinctively regard them as either mean or extravagant, but would consider them to be sensible and fair in all the circumstances.”
Nothing can be given by way of solatium for the injured feelings of the relatives and all that can be dealt with or assessed is precurniary loss. It has been held by the Supreme Court in Mc Carthy v Palmer (1957) NZLR 442 (as stated in the headnote) that:
“A claim under the Deaths by Accidents Compensation Act 1952, on behalf of the widow and children as the result of the death of the husband and father, for damages in respect of the loss of the society, care, guidance and affection of the husband and father respectively discloses no cause of action under the statute, since damages are recoverable thereunder by members of the family only to the extent of the loss of presumed advantage by the persons for whose benefit the action is brought.”
Loss of support is an essential element of the cause of action. A total dependence is not necessary, and partial dependence, even if it is of a slight and uncertain kind, will be sufficient to sustain an action.
It is not necessary for the Plaintiff to prove that she had a right to support by the deceased: what she must establish is, ‘a reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of the life’ (Franklin v South Eastern Rly Co [1858] EngR 669; (1858) 3 H & N 211).
Under the Act (Cap.29) I have to decide the amount of dependency of the parent in the case of the deceased and then a suitable multiple has to be determined.
In this case the deceased was at the time of his death 33 years of age and enjoyed good health. The plaintiff is the mother and was dependent on him to look after herself and her other children who were younger than the deceased. The deceased was employed as a clerk and his nett income was $129.23 per week or nett monthly salary of $516.00. He perhaps would have been gainfully employed until the age of 55 years. He was the sole breadwinner of the family.
On the evidence before me the plaintiff/mother was totally dependent on the deceased who gave half his income to her to enable her to support herself and the other children.
The multiplicand will be the nett wage which in this case is $516 per month or $6192.00 per year. It appears that the deceased’s personal wants were minimal and he gave half his income to his mother for the maintenance of the family.
In these circumstances I assess the multiplicand as 50% of $6192.00
which comes to $3096.00.
As for the multiplier, in Josefa Sigavolavola & Anor. v Gyan Mati (FCA No. 85 of 1985) where the deceased was a 30 year old carpenter, the Court at p.7 said:
“In assessing damages the Court is required to evaluate future possibilities and chances, and assess what will happen in the future, or would have happened but for something which happened in the past. The result can only be an estimate which, ... should fall within a permissible range.”
The plaintiff at the time of the deceased’s death in 1990 was 61 years old and the deceased was about 34 years old. According to the letter from the deceased’s employer it is stated that “had he not met his untimely death he would have continued employed till the age of 55 or him leaving work on his own choice”. After taking all factors into account I think a multiplier of 10 is appropriate.
The amount of compensation would come to $30960.00 made up as follows: 10 (multiplier) x $3096 (per year) = $30960.00.
I do not consider that any apportionment is necessary in view of the ages of the plaintiff’s children.
I therefore award the sum of $30960.00 under Cap.29.
There will be no award for pain and suffering as the death occurred within a very short time viz. one hour after the accident (Hicks v Chief Constable South Yorkshire Police [1991] UKHL 9; [1992] 2 All E.R. 65).
Order
In the outcome, I make the following orders and awards:
Act (Cap 27) - 1250.0
This sum merges into award under Cap 29.
Act Cap 29 - 30960.00
as from date of accident, namely, 17 November 1990
to date of this judgment (31.10.02) - 22284.00
The total award therefore is the sum of $54,744.00 with costs $500.00.
D. Pathik
Acting Chief Justice
At Suva
31 October 2002
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2002/230.html