Bui v Singh [2005] FJHC 439; HBC0295j.2002s (25 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0295 OF 2002

Between:

MEI BUI
widow and administratrix
of the estate of her late husband
Filipe Nawabu
Plaintiff

and

PARMEND SINGH
s/o Pratap Singh
Defendant

Mr. D. Singh for the Plaintiff
Mr. R. Patel for the Defendant

Date of Judgment: 25 November 2005

JUDGMENT

By writ of summons the plaintiff Mei Bui as the widow and administratrix of the estate of her late husband Filipe Nawabu (the ‘deceased’) claims damages from the defendant Parmend Singh.

This action has been brought under the Law Reform (Miscellaneous Provisions)(Death and Interest) Act, Cap. 27 and the Compensation to Relatives Act, Cap. 29.

The deceased died at Navua Hospital on 4 November 2000 and Letters of Administration No. 39686 was granted to the plaintiff on 11 April 2002.

The deceased died in an accident. He was travelling in a carrier seated on the back right hand side seat just above the rear right wheel.

As the carrier turned into a driveway on its right hand side at Waidradra, Navua, the overspeeding taxi driven by the defendant collided with the carrier on its back right hand corner. The defendant was trying to overtake the carrier at this point in time. The taxi was travelling from Suva towards Nadi in the same direction as the carrier.

As a result of the heavy impact just below where the deceased was sitting he was thrown out of the carrier.

The deceased landed head first 9.3 metres from the point of impact on the tarsealed road suffering serious head injuries.

Evidence was given that the defendant was driving on a straight two-lane highway where the speed limit was 80 kmph.

The Police Officer Iowane Cadriwa, who drew the fair and rough sketch plans of the scene of the accident shows the brake mark of the taxi measuring 29.9 metres. He said that the deceased landed about 9.3 metres from the point of impact.

The evidence is that the defendant was attempting to overtake in an area marked with double lines in the centre of the road which indicated that overtaking was prohibited. The front part of the taxi collided with the rear right of the carrier. The road was 7 metres wide where the accident happened. Therefore there was 5.4 metres on the left hand side of the taxi to overtake the carrier. The distance from the point of impact to the centre line was 1.9 metres.

The defendant was convicted of causing death by dangerous driving.

The defendant neither gave evidence in his defence nor called any witnesses to testify on his behalf.

The learned counsel for the defendant however made submissions on both liability and damages. Mr. Patel for the defendant submitted that his only intervention in this case is to arrive at a fair and reasonable award.

He concedes that the defendant drove his taxi in a negligent manner.

However, it is his submission that the deceased contributed to the injuries he suffered by putting himself in a dangerous position by voluntarily travelling in a vehicle that had illegally modified seats to carry passengers and he was not wearing any seat belts.

That in effect is the main argument in support of his defence of contributory negligence. He suggests that any award of damages ought to be reduced by at least 30%.

On the evidence before me and after having considered the submissions of both counsel, I find that there is no merit in the defendant’s submission on liability particularly in regard to defence of contributory negligence.

The defendant had admitted the offence of causing death by dangerous driving for which he was convicted. Learned counsel conceded that the defendant drove negligently.

The case of Jai Kissun & Gyan Chand v Maciu Ualala & Oveti Turaga, Civil Appeal No. 61 of 1979, FCA referred to by defence counsel in his submission is not applicable on the facts as the situation there was different. There that person had put himself in a dangerous position travelling on top of ‘harvested cane’ on a truck when the truck capsized and he fell and died.

I find as fact that the defendant is guilty of negligent driving, consequently there was an accident which resulted in the death of the deceased.

I find that no element of contributory negligence arises in this case.

Law

As far as the test of contributory negligence is concerned it is as stated thus by Lord Parmoor in Grayson v Ellerman Lines Ltd. (1920) AC 466 at 477:

“I do not think that the question of contributory negligence depends upon any breach of duty as between the plaintiff and a negligent defendant; it depends entirely on the question whether the plaintiff could reasonably have avoided the consequences of the defendant’s negligence”.

I agree with Mr. Singh that sitting on the back of the carrier is not a species of contributory negligence because the defendant’s manner of driving was the sole cause of the accident. The deceased was just an innocent victim of the defendant’s gross negligence.

In applying the above test to the facts of this case, it is fair to ask, how could the deceased avoid the accident? The role played by the deceased in this case is that he was a passenger with some others in a carrier. As a passenger a reasonable person could ask, how could a passenger (i.e. in the deceased’s position in the carrier) avoid the accident?

On contributory negligence Lord Denning in the case of Froom and Others v Butcher [1975] EWCA Civ 6; (1975) 3 All E.R. 520 stated:

“Negligence depends on a breach of duty, whereas contributory negligence does not. Negligence is a man’s carelessness in breach of duty to others. Contributory negligence is a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a reasonable prudent man, he might hurt himself...”

In order for the deceased to contribute to the negligence, he should in some way be careless in looking after his own safety. In this case, there is no evidence that the deceased was careless in looking after himself. It was unfortunate that where he was sitting at the back of the carrier is the place which was hit by the defendant’s vehicle. The deceased was thrown outside the canopied carrier to about 9.3 meters. This shows the impact of the accident. If the accused had jumped outside to avoid the accident, then it would be reasonable to assume that he contributed to the negligence. But in this case it was otherwise, the deceased was thrown outside as a result of the impact.

The position that he was sitting in was not dangerous, because no part of his body was exposed or in contact with any external part of the car. He was sitting inside a canopied carrier. He was riding in a secure position.

Assessment of damages

Having found liability established against the defendant the sole issue now left before me for determination is assessment of damages and I shall now deal with it.

Plaintiff’s claims

The plaintiff claims as follows:-

(a) Damages under the Compensation to Relatives Act, Cap. 29.

(b) Damages under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act, Cap. 27 and loss of expectation of life.

(c) Damages for loss of consortium.

(d) Funeral expenses $1500.

(e) Interest on the award at a rate of 6% per annum from the date of death until Judgment.

(f) Costs.

(a) Damages under the Compensation to Relatives Act, Cap. 29

(i) About the deceased

The deceased was born on 5 June 1952 and was 47 years old at the time of his death. He was the Head of Tokotoka Naduri of Mataqali Dravuni of Sauniveiuto Village, Deuba, Serua.

He lived a happy and vigorous life. He was a self-employed farmer and fisherman.

According to evidence he planted yagona, dalo, cassava, coconuts and vegetables. He also caught fish, lobsters, crabs and prawns; he raised bullocks and sold them; he sold coconut palm trees and seedlings. From the sale of various items the plaintiff was told by the deceased that he earned about $20,000.00 nett per year.

Other evidence regarding the deceased’s income are as stated in the plaintiff’s written submissions (pages 8-9) which is as follows:

She (the plaintiff) said all her 4 children had to leave school after her husband’s death because she could not afford to send them to school. She said she also earned around $200.00 per week from catching and selling fish and prawns herself.

The plaintiff said after the death of her husband she moved to a one bedroom house some distance from the farm making it difficult for her to farm and look after her children. She said that after her husband’s death the farm was taken over by the mataqali. She said her husband’s health before his death was excellent. She also said he was a very hardworking, caring and loving person and she felt very bad about the loss of her husband which ruined her life and children’s education.

The plaintiff said she did not keep any receipts and as a farmer her husband did not pay tax. She said her husband gave her about $400.00 per week for expenses including church functions. The plaintiff said she had only $6,000.00 with her at the time of her husband’s death. She said all this money was used in expenses including funeral arrangements on which she spent over $2,000.00. She said after her husband’s death the farm reverted to his mataqali. All the assets including the boat and house and farm were taken by the mataqali.

Finally she said by the time the Letters of Administration were taken out in 2002 she did not own any of the assets her husband owned.

Atunaisa Lacabuka, the fourth witness for the plaintiff a farmer, living and farming in the same area as the deceased corroborated the plaintiff’s testimony that the deceased was earning around $20,000.00 and through farming and fishing. He confirmed the deceased planted cassava, dalo, uvi and cash crops and that he sold cattles. He also verified that the deceased was the headman of the mataqali in his area. This witness said that even though the farm on which the deceased worked was a Crown Lease, the mataqali allowed the deceased to farm on it. The ownership of the land is not germane to the issue before the court. The bone of contention before this court is what the deceased was actually earning. This witness confirmed the deceased was earning around $20,000.00 net annually.

He left behind him his wife Mei Bui (the plaintiff) born on 10 July 1964 and three daughters and a son. The eldest daughter Sainiana Raloga was aged 18 years (22 years at time of hearing), Elenoa Sekinainai and her twin sister Miriama Valisoli were aged 16 years (20 years at time of hearing). The youngest son Tevita was aged 15 years (18 years at time of hearing).

These children were all dependent on the deceased at the time of death but not at the time of hearing.

(ii) statutory provisions

For a claim under this head the right of action under it confers on the near relative a right which is an independent right and not a continuation of the cause of action vested in the deceased.

Section 3 of the Act reads as follows:-

“Where the death of a person is caused by wrongful act, neglect or default, and the Act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person or persons or body of persons, incorporated or unincorporated, who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured, and although the death was caused under such circumstances as to amount in law to a crime.”

Under section 4 of this Act which reads as follows the plaintiff is entitled to the claim as a dependant:

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

The action is based upon financial loss or loss of support and nothing else (Blake v Midland Rly Co) [1852] EngR 10; (1852) 18 QB 93). In the case before me the deceased’s death was instantaneous after the vehicle collided. Hence there can be no claim for pain and suffering.

Under this head, under Cap 29, the question I have to decide is the amount of dependency of the wife and children and the multiplier. I have already outlined hereabove the details about the deceased and how he assisted them. No doubt he would have contributed substantially part of his future earning to them for the upkeep of the household.

The plaintiff cannot succeed unless she can prove actual dependence on the deceased at or before his death, or a probability that she would have received some support from him in the future if he had lived [Barnett v Cohen (1921) 2 K.B. 461]. 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.

The purpose of an award of damages under this Act has been stated by Lord Diplock in Mallett v McMonagle [1969] 2 All E.R 178 at 189 thus:

“My Lords, the purpose of an award of damages under the Fatal Accidents Acts 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 tortuous act of the respondents, 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.”

Assessment of deceased’s income

The plaintiff called hearsay evidence in regard to the deceased’s income. I have considered this evidence in the light of the provisions of sections 3 and 6 of the Evidence Act (Act no. 27 of 2002). The said section 6 provides, inter alia:

“In estimating any weight to be given to hearsay evidence in Civil proceedings, the Court must have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence, and in particular to the following:-

(a) Whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced to maker of the original statement as a witness”.

No documentary proof of the earnings were produced. It was submitted that most farmers in the category of the deceased do not keep full record of their income.

In the circumstances I have to assess the income on the evidence before the Court and give such weight to it as the Court thinks fit.

Upon a careful consideration of the evidence in regard to the deceased’s income, I find that both the plaintiff and the witness Atunaisa Lacabuka had blown it out of all proportions.

The figures that they produced have no solid and proper basis on which to rely to get the correct earning. No doubt he was a hard-working farmer and indulged in producing and selling a variety of crops. The plaintiff was ‘told’ by the deceased that he earned $20,000.00 a year.

I would assess the deceased’s income at $200.00 nett per week and would allow $66.00 for his own expenses and the balance of $134.00 to support his family. This would amount to $6968.00 or per annum (multiplicand).

Therefore the amount of dependency using the multiplier of 8 would be $55,744.00 (8 x $6968.00).

The plaintiff was partially dependant on the deceased because she had her own income.

On the facts and circumstances of this case the full amount of the award is to be given to the plaintiff because after his death she would not only look after herself but would have looked after the children who were dependants for a while. By the time of the hearing they were old enough to look after themselves going by their ages. The plaintiff was in a position to support them to some extent from her own income. Hence it will not make sense to apportion the award in favour of the children in the circumstances now as they are all adults.

Calculation of amount for dependency

Based on the deceased’s income as assessed by me, I now have to ascertain the figure for dependency.

In Davies & Anor. Powell Duffryn Associated Collieries Ltd [1942] A.C. 601 Lord Wright stated as follows as to what are the stages for calculation of dependency (quoting from Damages for Personal Injury and Death 5^th Ed. by David Kemp at p.57):-

“..first of all, one has to ascertain the earnings of the deceased, less his personal and living expenses. This gives what Lord Wright calls the ‘datum figure’, but it is also known as the annual dependency or the multiplicand. This figure is multiplied by a number of years’ purchase, which is commonly known as the multiplier. The whole figure is subject to the element of reasonable future probability and this factor is commonly reflected in the multiplier (but sometimes is reflected in a reduced multiplicand).” (emphasis added)

Now a multiplier has to be worked out. What is a multiplier has been well stated by M. Duncan & Anor in his book Fatal Accident Claims at p. 29 thus:

“The multiplier is the figure taken to represent the number of years for which the loss of dependency is likely to last. It is calculated from the date of death. To calculate the future loss of dependency, the years that have elapsed to the date of trial are deducted from the multiplier to give the future loss of dependency.”...........

“As a general guide, a multiplier does not normally exceed 18. The court will take as a starting point the deceased’s age at death and the likely length of his working life or the likely length of the period of dependency if this is different......”

Also on the question of the appropriate ‘multiplier’ the Fiji Court of Appeal in Josefa Sigavolavola & Anor v Gyan Mati (Civil Appeal No. 85 of 1986 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.”

In all the circumstances of this case mindful of the plaintiff’s own ability to earn and not being entirely dependent upon the deceased at the time of death and bearing in mind the deceased’s good health, he would have worked until the age of 55 years. In Hari Prasad v Attorney-General C.A. 9517 of 1986 a man of 54 years was given a multiplier of 3.

I am not unmindful of the fact that after the death of her husband her situation in life changed for she lost the land where cultivation was done and she moved out to a one bed-room house. Her own income also evidently depleted.

In my view the multiplier should be eight (8) in this case.

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

The defendant does not challenge the item ‘loss of expectation of life’ in the sum of $2500.00.

This figure is in line with awards made under this head by the Court of Appeal in Hari Pratap v The Attorney-General of Fiji & Anor (Civil Appeal No. 14/92).

In this regard, as referred to by counsel for the plaintiff, the following passage from the judgment of Lord Morris of Borth-y-Gest in Yorkshire Electricity Board v Naylor (1967) 2 All E.R at p.6 is 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 chances, the changes and the vicissitudes of the future are in the future. He will not know them. No surmise can with any measure of confidence be made whether by his untimely death 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.

The amount is limited to a moderate sum in Fiji. In Benham v Gambling (1940) A.C. 157 Viscount Simon L.C. said that:

“while recognizing that this head of claim is in fact incapable of being measured in the coin of the realm with any approach of real accuracy it is stated that courts should arrive at very moderate figures.”

I award the sum $2500 under this head of the claim.

(c) Loss of consortium

This item of loss of consortium although not challenged in the sum of $5000.00 is disallowed on the authority of the decision in George Transport Limited and Saukat Ali v Laisa Vosawale (Civil Appeal No. ABU 0035 of 2004 FCA – judgment 11.11.05).

There the Court at p.9 of the judgment said:

“Two other matters, though not the subject of appeal, must also be considered. The first is the award of $2,500.00 for loss of consortium. In Best v Samuel Fox & Co. Ltd [1952] AC 716 the House of Lords accepted that the ancient action per quod consortium et servitium amisit which provided a husband with a remedy in damages for the loss of his wife’s society or services was both anomalous and outdated. Furthermore, it also clarified that the action had never been and was not open to a widow. The award made in this case cannot stand and must be set aside.”

(d) Funeral expenses

Although the plaintiff pleaded $1500.00 for funeral expenses she is now claiming $2000.00.

Section 11 of Cap. 29 does provide for payment where it says that “damages may be awarded in respect of funeral expenses of the deceased person if such expenses have been incurred by the parties for whose benefit the action is brought.”

According to custom and tradition the deceased’s wife was saddled with having to incur heavy expenses for the funeral. No doubt it would be difficult to provide receipts for each and every item of expenditure.

I would allow the sum of $1500.00 as pleaded under this head of the plaintiff’s claim as being reasonable in all the circumstances of this case.

(e) Interest

The plaintiff is entitled to interest on damages awarded under the Compensation to Relatives Act and on special damages.

It was held in Pickett and British Rail Engineering Ltd (1980) H.L. 136 at 137, which was a case of personal injuries, that “interest on general damages was awarded for the purpose of compensating a plaintiff for being kept out of the capital sum between the date of service of the writ and judgment ...” As for interest on special damages it was held in Jefford and Another v Gee [1970] EWCA Civ 8; 1970 2 WLR 702 at 703 that “in general interest should be allowed on special damages from the date of accident to the date of trial at half the appropriate rate”.

In Rothmans Pall Mall (Fiji) Limited v Edward Narayan (Civ. App. No. 65/95S FCA) there was some discussion on the date the interest at 4% should start. It went as follows:

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

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

“3. In any proceedings tried in the High Court for the recovery of any debt or damages the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment:

Provided ..........”

There will be interest on general damages at 5% from the date of writ (11 July 2002) to date of judgment [AG & Anor. v. Jainendra Prasad Singh Civ. Appeal FCA ABU001.1998A; 21.5.99]. Also interest is awarded on special damages from the date of issue of writ to date of judgment at 2½% [Jeff v Gee] supra, cited with approval in A.G. v Charles Valentine (Civ. App. ABU0019.1998S FCA, 28.8.98).

(f) Costs

The counsel for the plaintiff submits that this is a proper case which should have been settled or at least liability admitted right from the beginning.

Mr. Singh is asking for ‘a special order for costs’ in the sum of $5000.00.

I agree that liability should have been admitted as it was so obvious that the defendant had no leg to stand on in raising the defence of contributory negligence.

The plaintiff is entitled to costs on a higher scale for fighting a losing battle in negligence which he admitted.

Summary of awards and Order

To conclude the awards are as follows and it is ordered accordingly:-

$

1. Damages under Compensation to Relatives Act 55744.00
   

Interest thereon at $5% p.a. from date of accident

4 November 2000 to date of judgment (to be

calculated by counsel)

b. Damages under Law Reform (Miscellaneous

Provisions) (Death and Interest) Act - Loss of

Expectation of Life (item ‘a’ above) 2500.00

100. Loss of Consortium (5000) disallowed
     

4. Funeral expenses 1500.00
   

Interest thereon at $2½ % p.a. from date of

death to date of judgment (to be calculated

by counsel)

5. Costs (summarily assessed) 800.00
   

There will therefore be judgment for the plaintiff against the defendant in the sum of $59,744.00 on general and special damages with interest to be calculated by counsel at the rates stated hereabove with costs against the defendant in the sum of $800.00 (eight hundred dollars).

D. Pathik
Judge

At Suva
25 November 2005