Vosawale v George Transport Ltd [2004] FJHC 208; HBC0169.2003 (1 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0169 OF 2003

BETWEEN:

LAISA VOSAWALE
PLAINTIFF

AND:

GEORGE TRANSPORT LIMITED
SHAUKAT ALI
DEFENDANTS

Mr. E. Veretawatini for Plaintiff
Mr. R.P. Singh for Defendants

JUDGMENT

CLAIM AND DEFENCE:

This is a claim under the Law Reform (Miscellaneous Provisions)(Death and Interest) Act. The claim arises out of the death of one Noa Dokanivalu as a result of him being hit by a bus registered number AY 192 at Suva bus stand on 4^th September 2000. The plaintiff alleges the collision was due to the negligence of the second defendant, the driver of the bus AY 192. Liability is denied by the defendants alleging that the collision was due to the negligence of the deceased amongst other reasons for stepping onto the path of the bus. The first defendant also denied it was the owner of the bus.

The plaintiff on the writ described as intended administratrix. In the statement of claim she says she is the administratrix. A grant of letters of administration had been made to her on 18^th February 2003, that is, some two and a half months before the issue of writ. The title in the writ is not fatal to her claim especially in light of Section 10 of Compensation to Relatives Act which permits any dependent to issue a writ in certain circumstances.

EVIDENCE OF WITNESSES:

PW1 LAISA DOKANIVALU is the plaintiff and the widow of the deceased. She told the court that she had been married to the deceased for 40 years and at the time of his death, her husband was 63 years old.

He was a farmer with a farm at Lomaivuna, growing dalo, ginger and cassava. He sold ginger and dalo to Wah Zing. They supplied 15 tons of dalo in six months or a year and ginger 3 tons to 15 tons. Her husband started farming in 1980.

Besides selling crops to Wah Zing, she sold crops at Suva Market earning $200.00 per week. After her husband’s death she returned to her village. She stopped farming because there was no one to farm the land.

On 4^th September 2000 she came to Suva with her husband and daughter Rosa. They wanted to go to the Flea Market across the road. Before they crossed, her husband went back to one of her sons who is a bus driver. She did not see the accident.

In cross-examination she said that her son drove K.R. Latchan bus. When she heard a sound, she saw her husband lying on the road and bus further ahead of her. She said her husband supplied six to seven tons of dalo in ten months. After his death she kept the farm for one year and harvested the crops.

PW2 AMI CHAND is employed by Wah Zing. He has been employed by Wah Zing since 1980s. Wah Zing exports ginger, dalo and cassava after purchasing them from Fijian farmers. He tendered a copy of contract which his employer had with the deceased regarding purchase of ginger. He said the deceased supplied 15 to 20 tons of ginger and at times 30 tons. He said ginger was bought for 75 cents per kilogram. According to him the deceased had supplied ginger to Wah Zing for about last twelve years. He also supplied 8 to 9 tons of dalo at $2.50 to $3.00 per kilogram. Further they purchase 60 to 70 bags of cassava at $20.00 per bag from the deceased, a fact not mentioned by the plaintiff.

In cross-examination he said his company keeps records of amount supplied by each farmer and what the company paid. He said he did not bring records and his figures were guess work.

This witness had access to records of amount supplied and payments made. He could if he had wanted and brought all the relevant records which would be of great assistance to the court. He did not. He was playing a guessing game. He has obviously dealt with a lot of farmers over a lot of years. It would be impossible for him to even vaguely remember production of each individual farmer. He gave me the impression of exaggerating the figures. I am unable to rely on figures he gave of amount of produce supplied by the deceased.

PW3 MAKARETA DOKONAIVALU is the daughter of the deceased who says she witnessed the actual accident. She said she used to live with her father and assist him on the farm a fact not challenged by the defendants. She had come to Suva bus stop with her father, the deceased, and her mother (PW1). They had got off a bus and were going to cross the road to go to Discount Traders. When they reached an island in the road, her brother who is a bus driver called her father. Her father was about two meters from her. A Tebara bus was parked on the road. Her father stood at right front side of that bus. She was looking at her father. She heard the engine of the bus. It hit him on the right shoulder. It lifted him up and threw him on the tar-seal. The bus which hit him was George Transport Company bus registered number AY 192. The bus braked further in front. Bus was travelling fast.

She assisted her father who was taken to CWM Hospital in a Telecom vehicle. Her father had been talking to her brother for about three minutes before he was hit by the bus.

According to her, her father was a farmer and had contract with Wah Zing to sell ginger, dalo and cassava. They also sold at the market. Their farm is 19 acres. They harvested 15 tons ginger every six months. Dalo was sold at $2.50 per kilogram. Her mother further sold at Suva earning $300.00 per week. Her father employed twenty workers on the farm to plant and to harvest ginger. Planting took one week and harvesting two weeks. After her father’s death, they left the farm, as there was no one to look after it. Her father used to give her money.

In cross-examination she said that the Tebara bus was parked on one side of the bus lane and K.R. Latchan on the other. There was passage in between presumably for buses to go through.

The bus did not run over her father. Her father was 63 years old but not sickly. She thought the George Transport bus was travelling at 40 to 50 kilometres per hour. She said the bus is supposed to travel slowly because passengers get off there.

She said her father was a wealthy man. They used his money on the funeral. He was taken to Beqa for funeral. Money from ginger and dalo was used to pay for workers, furniture, house and generator. Labourers were paid $15.00 a day.

In re-examination she said bus stopped about six meters from where it hit her father. Her father was not standing on the path of the bus.

PW4 SALOTE MOCE had come to Suva to buy tapioca. She was sitting in front left side of George Transport bus. The bus was travelling at high speed. It collided with a man opposite the Flea market. A bus was parked on right and one on left side of the lane.

In cross-examination she said police did not listen to her when she reported the accident nor take her name down. Deceased’s daughter came to her about three weeks after the accident. George Transport was written on the bus. She does not know how to drive.

PW5 PONIJESE SAULEKALEKA is an officer with Land Transport Authority. His evidence is relevant to the issue of ownership of the vehicle. He testified on the basis of records at Land Transport Office.

He said the Land Transport Authority keeps records of Road Service Licenses (RSL) for all buses in Fiji. The RSL for George Transport Ltd is 12/6/65. There are 23 buses registered under this RSL. Vehicle number AY 192 is included in this list of 23 buses. City Transport Limited has RSL number 12/7/124. According to their records the vehicles registered under George Transport Limited RSL 12/6/25 are also registered under RSL 12/7/124.

The person who comes to deal with Land Transport Authority deals in respect of both Companies. The two companies have same residential address, same postal box, same telephone number and operate under one Bank account. He produced a letter from George Transport Limited to support this.

In cross-examination he said the Land Transport Authority also keeps register of ownership of all vehicles in Fiji. LTA documents show the vehicle AY 192 is owned by City Transport Limited since 1998.

PW6 APISALOME KULAVERE is the son of the deceased and was driving K.R. Latchan bus on the 4^th September 2000. He said he was talking to his father who was standing on left side of road in front of Tebara bus. The deceased was about ten meters away from him. Few buses went past. A George Transport bus came and braked in front. He knew the driver by name Hassan. He went out of his bus and saw his father lying on the other side. He assumed his father had come into contact with the bus but he did not see the actual contact. The bus stopped about ten meters away and its speed would be 30 to 40 kmph. He said the speed limit at the bus stop is 5 kmph.

He said one Moon from George Transport came with grog asking for forgiveness.

His father had a ten-acre farm. He said in good weather his father grew 20 tons of dalo and 20 tons of ginger. I presume he is referring to per annum figures.

In cross-examination he said he was sitting in the driver’s seat. There was a bus lane between his bus and where his father was standing. His father was standing in front of Tebara bus and a meter away from it. They had been talking for some time. His father did not step forward and hit the bus.

George Transport was written on the side of the bus. He did not consider that there was risk to his father standing there and talking to him.

In re-examination he said about ten vehicles went past while they were talking.

DW1 KIRAN SINGH said on 4^th September 2000 City Transport Limited owned bus AY 192. He said Shaukat Ali the second defendant died on 15^th November 2001. He talked of some reconciliation with his brother Kamal Singh.

In cross-examination he agreed that George Transport and City Transport are sister companies. He knew that Kamal Singh alias Moon had presented grog and cash on day of accident.

FACTS NOT IN DISPUTE:

There is no dispute that an accident between the bus registered number AY 192 and the deceased occurred on 4^th September 2000 at the Suva stand as a result of which the deceased died. It is also not in dispute that there was a K.R. Latchan bus parked on the right side of the bus lane and a Tebara bus on the left side. There was a one way lane for the buses between the two parked buses. It is also not in dispute that the deceased before the impact was standing on the right front side of the Tebara bus.

LIABILITY:

The defendants dispute liability alleging it was the deceased who stepped onto the path of the bus. Before the impact PW1 who is deceased’s wife, PW3 Makareta Dokonaivalu the deceased’s daughter and PW6 Apisalome Kulavere the deceased’s son say he was standing in front of Tebara bus and talking to his son. The son put his distance in front of the bus at one meter. PW3 the daughter said his father had been talking to her brother for three minutes before he was hit. Her brother said they had been talking for 20 minutes and about ten vehicles went past.

I am of the view that PW6 is mistaken as to the length of time the two had been talking. The deceased and his daughter were supposed to catch the ten o’clock bus to Lomaivuna after visiting Discount Traders so it was unlikely the deceased would spend so much time talking to his son. The son also said that some buses had gone past while they were talking so presumably the deceased was not standing in the path of the buses and was in position of reasonable safety. Even though it was put to the daughter and the son that their father stepped onto the path of the bus, it was denied. I understand there can be very strong motives of monetary gain to deny this. However, I have no doubt that they told the truth when they said their father did not step onto the path of the bus. The daughter was only about two meters away from her father at time of the impact and was looking at him. She had a clear view of what transpired. She left a very strong impression of an ordinary rustic woman who gave an honest account of what transpired in front of her eyes. Further had the deceased stepped onto the path of the bus, he would not have been thrown sideways but rather in front of the bus.

PW6 the son of the deceased who is himself a bus driver put the speed of the bus at 30 to 40 kmph. While this per se is not an excessive speed, given the situation of a bus stand and its busy nature where passengers have to cross bus lanes to get out of bus stand area, an extreme caution is necessary from drivers at the Suva bus stand. Accordingly I conclude that the accident was caused by the speed and driver’s inattention in seeing the presence of the deceased on the road which led to the impact and the accident was not caused by the deceased suddenly stepping onto the path of the bus or the side of the bus.

CONTRIBUTORY NEGLIGENCE:

The next issue is contributory negligence. The deceased was standing on a bus lane on a road talking to his son. He had also been talking for some time while buses went past. There was a Tebara bus immediately to his right from which direction other buses were coming. His presence on the road would be unknown to an incoming driver because the vision would be blocked by the Tebara bus.

Roads and bus lanes are meant for buses to travel on and for pedestrian to cross when it is safe to do so. A pedestrian is supposed to spend the minimum possible time on the road. The bus stand at Suva is a very busy road. It is not a place where one should stand and conduct a conversation which the deceased was doing. He could easily have gone into the bus his son was driving or stood off the road. By standing on the bus lane, he had ignored some very basic rules of his own safety and which should be obvious to anyone who took reasonable care of his own safety. In that way he contributed to the mishap.

I am of the view that his contribution to the accident can reasonably be placed at 50 percent.

OWNERSHIP:

The defendant says it is not the owner of the vehicle but City Transport Limited is. At the Land Transport Office, the vehicle AY 192 is registered in the name of City Transport Limited. The claim in the present proceedings is under the common law not under the Land Transport Act.

Section 49(1) of the Land Transport Act makes registration of the vehicles by the owners compulsory. For the purposes of the Land Transport Act, the word owner is defined in Section 2. Section 2 commences with the word “In this Act unless the context otherwise requires” and then it sets out definitions of various words including the word “owner” and it sets out who for purposes of the Act and can be considered owners. ‘Owner’ has been given an extended meaning in the Act. The owner for the purposes of the Act includes “a person in lawful possession”. However we are concerned with the concept of owner under the common law.

The unchallenged evidence in the present case is that City Transport Limited and George Transport Limited are sister companies which use the same set of buses including the bus subject of present proceedings AY 192. The bus had the words George Transport painted on its side and that is how the witnesses identified it. There is no denial that George Transport Limited was using the bus at the material time for its purposes. There is no denial that the driver was employed by it. These facts would be within the peculiar knowledge of the defendant. The defendant’s witness who is a director of George Transport did not deny this. The arrangement to use vehicles interchangeably only confirms that George Transport was using the bus for its purposes and profit. One does not necessarily have to be the registered owner of a vehicle with the Transport Office before liability can be sheeted home. I am of the view that had City Transport Limited been made a defendant instead of George Transport Limited, City would have turned around and said that the bus was used by George Transport Limited for its purposes and not in the interests of City.

The defendant’s witness Kiran Singh said that the two companies had separate account. He did not provide the court with the separate account numbers nor was this fact disputed when the Land Transport Officer gave his evidence.

In Sada Nand v. Ram Indra – FCA 35 of 1991 the court observed

“Finally we might say a word whether registration of a vehicle under the provisions of the Traffic Act established (I) ownership, (ii) is necessary to establish ownership; (iii) is conclusive evidence of ownership; (iv) is merely evidence of ownership. Whilst it is unnecessary for the purposes of this appeal to do so, we nevertheless point out, that (iv) above clearly the situation.”

Even though the above remarks are obiter, I adopt them. Registration with the Land Transport Authority is not the conclusive evidence of proprietary rights at common law. One has to consider other facts as well.

Having looked at all the facts, I am of the view that George transport Limited was the owner at common law.

DAMAGES:

The damages that may be claimed by the estate under Law Reform (Miscellaneous Provisions)(Death and Interest) Act are limited to the damages which arose before the death or as a result of the death of the deceased. Generally speaking damages which are claimed under Cap 27 are dealt with under following headings:

(a) Loss of expectation of life -

There is no acknowledged criteria for calculating the monetary value of such loss. This loss is something personal to the deceased. No one can say with certainty that “by his untimely death, he was denied happiness or was spared unhappiness” – Lord Morris in Yorkshire Electricity Board v. Naylor (1967) 2 ALL ER 1 at page 6. In Fiji the awards for loss of expectation of life are limited to a moderate nominal sum. In Daya Ram v. Peni Cara & Others – (1983) 29 FLR 147 a sum of $1,250.00 was awarded. In Bibi Nanson v. Ramesh Chand where death had occurred in 1990 again a sum of $1,250.00 was awarded. With the passage of time an increase in this figure is inevitable. Accordingly I grant a sum of $2,500.00 for loss of expectation of life.

(b) Funeral Expenses -

The plaintiff has claimed $2,500.00 under this item. No serious challenge is made to this figure. The Act itself does not give any assistance as to what constitutes funeral expenses. I am of the view that all expenses incurred in ceremonial burial or cremation of a corpse are recoverable. Some traditional and customary ceremonies are integral part of a burial ceremony and expenses for these can be claimed. I allow $2,000.00 under this head.

(c) Pain and Suffering –

There was no direct evidence of this fact. All I know is that the deceased was hit by a bus on 4^th and died the next day. Some injuries with consequent pain are inevitable. However in view of sparse evidence on this, I allow a nominal sum of $1,000.00.

(d) Exemplary damages –

The plaintiff’s submissions include a claim for this. Such damages cannot be claimed – see Section 2(2) of the Act. Even if the plaintiff could claim, I would not have granted any exemplary damages as the defendant’s conduct was merely negligent and not outrageous to deserve punitive sanctions.

CLAIMS UNDER COMPENSATION TO RELATIVES ACT:

The plaintiff’s pleadings are marked by singular lack of detail. There is no mention of the Compensation to Relatives Act in the prayer itself. The defendant’s are saying this is fatal. However, it must be noted that in paragraph 13 of the statement of claim the allegation is made that the widow and children of the deceased were wholly dependant on the deceased for support. It also appears from the defendant’s submissions that Section 9 of the Act was not complied with as particulars of children and nature of claim were not supplied to the defendant. These details are normally incorporated in the statement of claim but from the wording of the section it appears that it can be done separately. I do not consider that the defendants are entirely blameless either. These issues could be raised and should have been raised during the pre-trial conference. The defendants took no exception to evidence being led in support of paragraph 13 of the statement of claim. The defendants knew very well where the evidence was directed at. The witnesses were cross-examined on this aspect. There was no prejudice. While I do not condone lack of thoroughness in pleadings, I deem it just that relief under this head should be granted.

An action under this Act (Cap. 29) lies for the benefit of the wife, husband, parent and child of the deceased – Section 4. The court is empowered to give “such damages as are considered proportioned to the injury resulting from the death” – Section 7. The basis of the damages is the pecuniary loss caused to the relatives of the deceased. In estimating this pecuniary loss the reasonable expectation of the relatives from the deceased and the probable pecuniary loss have to be taken into account – Taff Vale Railway Company v. Jenkins – [1912] UKLawRpAC 60; 1913 AC 1 but damages cannot be awarded for “solatium, that is to say, damages given for injured feelings or on ground of sentiment”. So plaintiff’s claim for bereavement and shock cannot be allowed. The damages for pecuniary loss sustained by the relatives of the deceased are ascertained by determining the extent of family’s dependency on the deceased. The dependency of the family on the deceased can be calculated by deducting from the nett earnings the sum which the deceased spent exclusively on himself and others apart from his family – Harris v. Empress Motors Limited – 1983 3 ALL ER 531.

The defendant was 63 years old and according to his daughter, a healthy man. He was a farmer and therefore used to do outdoor work. There is no compulsory retiring age for farmers who generally keep working even though at a lesser pace as age keeps marching on. The concept of stop work on a predetermined age common to civil servants is unheard of in the agricultural community.

The deceased was a farmer with no fixed but rather fluctuating earnings depending on weather. The court in the absence of any record was not assisted much due to the different production figures given by different witnesses. In the case of ginger the widow PW1 put the production at three to fifteen tons in examination in chief and in cross-examination said six to seven tons. PW2 AMI CHAND put it to fifteen to twenty tons and in good years thirty tons. The daughter PW3 put it to fifteen tons and the son PW6 at twenty tons.

I had a wide range of figures when it came to annual production figures for dalo. In respect of dalo the widow PW1 put the figure for dalo at fifteen tons every six months in examination in chief. In cross-examination she put the figure at six to seven tons in ten months. Ami Chand PW2 put the figure at eight to nine tons per annum while PW6 the son of the deceased who spent very little time on the farm put it at twenty tons. According to the widow she also sold some dalo, cassava and rourou at the market. She earned $200.00 per week from sales at the market. This of course could depend on the availability of the produce. There is no reason why she could not have continued planting on small scale for sale at market.

I consider a figure of twenty tons per ton per annum as exaggerated. The widow probably had the right figure of six to seven tons per annum or 6,000 to 7,000 kilogram per annum. I have calculated loss on basis of 6,000 kilograms. This would give a gross earnings of roughly $15,000.00 at $2.50 per kilogram. However, there would be expenses involved in the form of getting the fields ready, seedlings, fertilizers, cultivation and transport to market centres. I would therefore put the nett annual income at forty percent of the above that is $6,000.00 per annum from dalo.

As far as ginger is concerned, the figures varied enormously from three tons to twenty tons. No records were supplied. Ginger requires intensive farming. I conclude that the annual ginger production would be no more than fifteen tons. The only certain thing is the price of ginger is $420.00 per ton which would give a gross figure of $6,300.00 per annum for ginger.

According to the daughter they used twenty people to plant and harvest ginger the total time for these two activities was three weeks and they paid a worker $15.00 a day. This would give an annual labour charges on ginger 20 x 15 x 15 assuming a week was a five-day week giving a total of $4,500.00. There would be some transport expenses too say $200.00. So taking out all the expenses the nett annual loss from ginger would be roughly $1,600.00.

There were three persons who lived together, the father, mother and daughter. I have no evidence before me to say how much of the income the deceased spent exclusively on himself for his own personal needs. However, I can safely presume that he would spend some money on socializing locally on things like grog, clothing etc. I would put this at ten percent of the total nett income. Of the balance, I would say the combined wife’s and daughter’s dependency on the deceased would be sixty percent having equally divided the balance of 90%.

The next issue is that of multiplier. The deceased was 63 years old. However, he was a farmer with no sickness. Unlike salary earners in white-collar jobs, there is no such thing as a retiring age for farmers in Fiji. They generally keep working though their entire lives. Given that the deceased was at the time of death in a reasonable state of health, it is reasonable to adopt a multiplier of 6.

I have reached the nett annual loss from ginger is $1,600.00; for dalo a nett annual loss of $6,000.00 per annum. Of this sum I have already concluded that the dependency of the mother and daughter would be sixty percent so the total annual dependency or loss would be sixty percent of $7,600.00 that is $4,560.00. Given a multiplier of 6, the total comes to $27,360.00 for a period of six years. The pre-judgment loss would be for a period of 32 months which would be $12,160.00 and post judgment future loss is $15,200.00. Interest would only be allowed on $12,160.00.

LOSS OF CONSORTIUM:

The plaintiff who is elderly is unlikely to marry again, the daughter who lived with them would probably marry and move out. She would be left alone. However, I was not told anything about the nature or quality of companionship or relationship between the deceased and the wife and which would have assisted me in making a proper on award. All I know is that they were married for forty years and had three children. In Abdul Hafeez Ismail v. The Medical Superintendent & the Attorney-General of Fiji – HBC 310 of 1998 Justice Shameem awarded a sum of $5,000.00 under this head for death of wife aged 38 years and who had three children. I am at a particular disadvantage given the sparsity of evidence on this aspect of case so all I award is a nominal sum of $2,500.00

Interest and costs:

Section 37 Law Reform (Miscellaneous Provisions)(Death and Interest) Act gives the court discretion to award interest at such rate and for such period between the date when the cause of action arose and the date of judgment. I am minded to permit interest to accrue from the date of filing of the writ that is from 2^nd May 2003, at a rate of five percent per annum.

CALCULATIONS:

(a) Loss of expectation of life - $2,500.00

(b) Funeral expenses - 2,000.00

(c) Pain and suffering - 1,000.00

(d) Pre-judgment loss of earning - 12,160.00

(e) Post-judgment loss of earning - 15,200.00

(f) Loss of consortium - 2,500.00

Interest on (b) and (d) at 5% per annum

for 21 months - 1,239.00

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TOTAL = $36,599.00

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The award for loss of expectation of life is a benefit which accrues to the dependents. It must therefore be deducted from award under Compensation to Relatives Act otherwise there would be duplicating of the sum - Davies v. Powell Duffryn Associated Coliries Ltd 1942 AC 601 and applied in The Medical Superintendent & Attorney General v. Abdul Hafeez Ismail – FAC 50 of 2000. The effect therefore is that the total sum of $36,599.00 is reduced by $2,500.00, that is, it now stands at $34,099.00.

Since I found that the deceased’s contribution to the accident at 50%, the total award would therefore be $17,049.50. I also award costs which I fix at $2,200.00. Accordingly I enter judgment for the sum of $17,049.50 together with costs assessed at $2,200.00.

[ Jiten Singh ]
JUDGE

At Suva
1^st June 2004