Wati v Fusi [2011] FJHC 667; Civil Action 30.2009 (25 October 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION No: 30/09

BETWEEN:

GYAN WATI of Tabia, Labasa widow as administratrix in the Estate of Anir Kumar late of Tabia, Labasa.
PLAINTIFF

AND:

FONOTAGA FUSI aka Abdul Faroom of Labasa Driver.
1st DEFENDANT

AND:

ABDUL RAHIM of Buabua, Lautoka.
2nd DEFENDANT

AND:

PRABHA KARAN of Vitogo, Lautoka.
3rd DEFENDENT

RULING

INTRODUCTION

This is a second of two rulings on an assessment of damages in an action arising from a fatal accident in which two people died. On or about the 17th of February 2009 the late Mr. Anir Kumar was a passenger in a motor vehicle registration No: EW 687 driven by the late Bimal Vikash Chand. He was sitting directly behind the driver. The said motor vehicle was being driven towards Savusavu along the Labasa/Savusavu Highway. The 1st Defendant on the same day at about the same time was driving a motor lorry/truck registration number FI 033 loaded on the back/tray of which was an "excavator/digger" registration number EJ 421 and travelling towards Labasa along the same Savusavu/Labasa Highway.
Both vehicles were travelling towards each other. At a slight bend on the highway near a place called Lomaloma the "excavator/digger" slipped off the tray of motor lorry/truck just as it rounded the bend at about the same time motor vehicle number EW 687 driven by the late Mr. Bimal Vikash Chand came past. The excavator/digger landed on the top right hand side of Mr. Chand's vehicle killing him instantly and injuring Mr. Anir Kumar resulting in Mr. Kumar's death some eight days later. Two others also suffered injuries as a result of this accident. The 1st Defendant was later charged with the offence of "Causing death by Dangerous Driving". The Plaintiff as the widow and Administratrix of the her late husband's estate Kumar then brought this action for the benefit of the estate under the Law Reform (Miscellaneous provision) Death and Interest Act and for the benefit of the dependants of the deceased under the Compensation to Relatives Act. The matter was put before the Judge for hearing on the 9 May 2011 on which date judgement by consent was entered against the Defendants, the presiding judge, Honourable Justice Wati then directed that the matter be put before the Master for assessment of damages. It is upon that direction that the matter was called before me and thereafter the hearing on the assessment of damages was heard on the 23 June. The partiers were then given a time table for submissions the first of which was received on the 15 July and the Defendants submission yesterday. It was intended to give the ruling on the two fatal accident matters together.

BACKGROUND

The late Mr. Anir Kumar was a healthy man of forty six (46) years of age, was permanently employed as a Sales Supervisor with Makans Drugs and Pharmaceutical Supplies Limited in Labasa and earned the net sum after deductions of $758:00 per fortnight. He was a married man with three children and lived at Vunivacea, Tabia, Labasa. The Plaintiff as the Administratrix of the Estate of her deceased husband seeks the following reliefs:-

(i). Damages under the Law Reform (Miscellaneous Provisions) Death and Interests Act for the benefit of the Estate of the deceased;

(ii). Damages under the Compensation to Relatives Act for the benefit of the dependants of the deceased;

(iii). Special Damages in the Sum of $7,500:00;

(iv). General Damages;

(v). Interest and

(vi). Such further and/or relief as this Honourable Court deem just and expedient.

As is required under section 9 of the Compensation to Relatives Act the Plaintiff provided to the Defendant the following particulars of the persons for whom and on whose behalf the action is brought and the nature of the claim:-

(i). The Plaintiff Gyan Wati born 10 November 1963, the widow of the deceased;

(ii). Ashweenie Lata Kumar daughter of the deceased born on 3 January 1985;

(iii). Ashnil Aranesh Kumar son of the deceased born on 17 February 1987; and

(iv). Ashbini Lata Kumar daughter of the deceased born 18 September 1990.

The nature of the claim is that:-

"The deceased was at the time of his death a healthy and happy man aged 46 years and was in his said employment and was earning a sum of $758:70 fortnightly. The Plaintiff received from the deceased a sum of $300:00 per week out of which she paid the household expenses. In addition, the deceased paid the cost of the clothes and holiday for the family, and sundry expenses amounting to about $50:00. The Plaintiff and the children of the deceased were dependant on him for support and by his death they have lost the said means of support, and they have thereby suffered loss and damages".

The deceased also worked on his farm in the week-ends and in the afternoon and farmed sugarcane, rice and vegetables and had domestic animals and supplemented his secondary income with further between $5000 - $6000 per annum.

The above particulars and nature of the claims formed part of the Statement of Claim.

Assessment of Damages.

Although in the statement of claim the Plaintiff had sought damages under both the Compensation to Relatives Act. Cap 29 and the Law Reform (Miscellaneous Provisions) (Death and Interest) Act. Cap 27, the hearing proceeded mostly under the latter Act. At the conclusion of the hearing the submission filed by the Plaintiff's counsel addressed matters with reference only to this Act. These assessment will therefore only deal with the claim under the Law Reform (Miscellaneous Provisions) Death and Interest Act. Cap. 27.

SPECIAL DAMAGES

The phrase special damages are used to signify that type of damage which the plaintiff must prove in certain cases as part of the cause of action but which is beyond the general damage and which must be pleaded.
The Plaintiff pleads the following special damages:-

1. Funeral Expenses - $2,500:00

2. Miscellaneous expenses - $5,000:00

Funeral Expenses.

In so far as the funeral expenses is concerned I will allow this expense notwithstanding the lack of documentary evidence in view of the generally accepted position in this country that the custom of various races in Fiji that there are indeed certain customary obligations which have to be fulfilled and that expenses are incurred in the fulfilment of those obligations; (see Jona Moli –v- Dr. Frances Bingo & Ors. Suva HCA No: 3335/1998). The Defendant's view is that a conservative figure of $1,500:00 be awarded but given the above decision I award the sum of $2,500:00 under this head.

Miscellaneous expenses.

Evidence was led by the Plaintiff which showed that as a result of the severe injuries suffered by Mr. Anir Kumar he was then flown over to CWM Hospital in Suva for further care. That he died about eight (8) days later. That the Plaintiff and her children had to travel firstly from Suva to Labasa be with him when he was first injured and then had to travel to Suva when he was transferred there and later when he died to travel back to Labasa. Evidence was also presented that the deceased was flown back to Labasa by a charted Air Fiji plane with a cost of $3,700:00. Although Air Fiji had by the date of hearing had become defunct as a Company a letter written by one of its previous officer indicating the costs of such a hire was presented. This evidence and the cost of the air travel by the Plaintiff was not disputed or cross examined at length by the Defendant nor was it addressed in their submission. The total cost of the travel and accommodation amounted to $5,050:00. The amount claimed for this expenses was $5000:00 and under the circumstances I would allow the said sum.

The total sum claimed and assessed under special damages is therefore $7,500:00.

GENERAL DAMAGES

(A). Loss of Expectation Of Life

Loss of expectation of life is allowable in claims under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act but as earlier stated the sum assessed are relatively low. His Lordship Justice Atkin, in the House of Lords and Privy Council decision in Rose –v- Ford (1937) AC 826 at p. 834 said:-

"...I am of opinion therefore that a living person can claim damages for loss of expectation of life. If he can I think that right is vested in him in life, and on his death passes under the 1934 Act ( equivalent to our Law Reform Cap.27 Act) to his personal representative. I do not see any reason why the fact that the expectation is realised, i.e. that death comes at the time anticipated or sooner, should make any difference. ..."

This was followed in Fiji in by Speight JA Daya Ram –v Peni Cara & Ors. (1983) 29 FLR 147 at 148 in which he said:-

"Turning to the present case we will deal first with the lesser items challenged namely loss of expectation of life. The basis of making an award for loss sustained by the removal of proposed predominantly happy life...."

The sum awarded by the Courts here vary and range from $1,250:00 (Daya Ram-v- Peni Cara) to $2,500:00 (Hari Pratap –v- Attorney General). The appropriate sum now awarded appears to be $2,500:00 and I award this sum accordingly under this head.

(B). Pain and Suffering and Loss of Amenities of Life

Pain and suffering form part of the general damages and the Plaintiff is entitled to compensation for the pain and suffering both actual and prospective damages which is attributable to his injury.

The deceased was seriously injured and did not die instantly. His death certificate states the cause of death as septicaemia, bilateral pneumonia/internal injuries. He was injured on the 17th day of February and he died at the CWM Hospital in Suva nine days later on the 25th day of February.

Because the deceased died nine days after the accident it can be correctly assumed that he suffered a lot of pain prior to his death. In my view the greatest pain felt by the deceased was suffered immediately after the accident and during his period of transportation to Labasa Hospital. No evidence was given at the assessment hearing about this nor was the attending doctor called to give evidence on this category of damages. It is clear though that the circumstance in which the injury was sustained is a relevant consideration of the pain and suffering sustained. A further consideration which could be taken into account is the pain and suffering caused by measures reasonable or otherwise which were taken to reduce the consequence of the injuries such as surgical operations and medical treatment. If however the deceased suffered no pain because he was rendered permanently unconscious at the scene of the accident or that his suffering was effectively reduced by the use of pain-killing drugs then damages for pain and sufferings will be smaller than otherwise would have been. The question then is what would the damages for pain and suffering have been in the circumstances of this case? Counsel for the Plaintiff in his submission suggested that a figure of $12,000:00 would be sufficient and he appears to have drawn this conclusion from the fact that "The Plaintiff was at his bedside during the time the deceased was in hospital and explained in detail the conditions of her husband and the pain he endured before his untimely death. It is obvious that the deceased would have sustained the worst type of pain"

At the hearing the Plaintiff was asked questions regarding the extent of communication had between her and her late husband. She said that she wanted to talk to him but couldn't, they could only communicate with their hands i.e. by touch and that the husband cried to her. There is no doubt that the deceased suffered a lot of pain for nine days before his death but how to equate that pain in terms of money is a difficult question. There are no specific formulae found to determine this question simply because most awards for pain and suffering were given in situations where the plaintiff survived the accident and calculations took into account present and future sufferings as a component of damages generally. Some jurisdictions have considered making payments for pain and suffering by a "per diem" method, that is by calculating pain and suffering suffered per day and then making a global assessment. This method has not met with approval in most jurisdictions although it may be appropriate, in my view, in exactly this sort of situations, where the person died from his injuries a few days after the accident. It is clear from the facts of the case that the seriousness and the extent of the injuries made the chances of surviving it very slim and notwithstanding that medical interference would reduce the pain suffered by the deceased a reasonable sum should be awarded. The only case I have seen in our jurisdiction which awarded damages under this head where the deceased died a few days was in The Medical Superintended &Anor. –v- Abdul Hafeez Ismail: CA 50/00 in which the deceased suffered pain for two days before her death. The Court of Appeal said in fixing the amount of $2,500:00:

We fix the amount at $2500, but stress that as in all cases this assessment relates to the particular circumstances of the case. Awards such as these are not capable of mathematical analysis, and are not to be made by applying some hourly or daily rate following a comparison with other cases. It is the particular end result which is important.

The Defendant is of the view that a sum of $2,500:00 is sufficient under this head. Using the above case as a directive precedent I would not agree totally with the figure submitted by the Plaintiff's counsel but am of the view that the sum of $6,000:00 would be appropriate under this head. I therefore award $6,000:00 for pain and suffering.

(C) Loss of Earnings for"The Lost Years"

In the oft quoted words of Lord Blackburn, the general principle of compensation is to award "that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation";(Livingstone-v- Raywards Coal Co. [1880] UKHL 3; (1880) 5 App.Cas. 25, 39)

The conventional method of calculating or approaching the assessment of damages for lost years is as follows:-

(a). The net earnings as at the time of the death;

(b). From the net earnings is deducted a sum calculated to be an amount used by the deceased for himself;

(c). The above sum is then multiplied by the actual number of lost years which has to be ascertained by the Court taking into account the contingencies and vicissitudes of life.

The Net Income at the time of Death.

The deceased was a salesman supervisor with Makans Drugs and Pharmaceutical Supplies of Labasa and had been so employed for about sixteen (16) years. He was a healthy man of forty six (46) years of age and lived with his wife and children at his father's land at Tabia, Labasa.

Tendered into evidence by consent was a copy of the deceased's "wages slip"marked as "Exhibit 5", this wage slip showed that the deceased's net income after deductions was $643:00. It was not in dispute that the deceased earned a gross income of $758:70 per fortnight out of which the sum of $60:64 was deducted for his contributions to the Fiji National Provident Fund and a further deduction of $135:50 for tax. His net income was $643:00 per fortnight.

Net Wage ...... = $643:00 per fortnight

TOTAL YEARLY ....... = $16,718: per year.

Payment of Incentives.

There is no dispute that the deceased also received incentive payments or commissions from the sale of products. These payment depend on how much the salesman sold and there was a distinct formulae used by his employer to calculate these payments. Tendered onto evidence by consent as "Exhibit 6" was the record of incentive payments made to the deceased from 6th January 2005 to 5th March 2009. The total net incentive payments for this period was $7695:82. Incentives are paid on a two month basis and the above payments represent 27 payments.

The average payment would then amount to $7696:00 divided by 27...........= $285:00.

On average the deceased would receive in a year the sum of $285:00 X 6 = $1710:00.
I would add this figure to the yearly salary as part of his total earnings which would bring his yearly income to $16718 + $1710 = $18,428:00.

TOTAL INCOME = $18,428:00

Under the Miscellaneous Provisions (Death and Interest) Act, what the estate is entitled to is the deceased's savings from his personal expenditure. That is, the estate is entitled to the balance when his personal expenditure is deducted from his net earnings. This figure will be represented by a percentage of his total income. Evidence should be adduced regarding his personal expenditure.

The Plaintiff, the deceased's wife gave evidence that her late husband's net wage per fortnight was $643:00 after FNPF deductions as per "exhibit 5". That her husband would give her in cash all his fortnightly wages and that she would give him between $50 and $100 per fortnight. That there were times in which she would give him more depending on what he needs. There was some inconsistency in her evidence at least in regards to payment in cash for in cross examination she said that the wages were paid directly to the bank and that she and her late husband would access money by bank card. It was clear though that both the Plaintiff and her late husband can access his wages when the need requires but the amount taken by her husband for himself was not clear.

The deceased was a healthy person, he smoked occasionally and drank a little bit. He however also works on the family farm with his elder brother. Evidence was adduced that he worked on the farm with his brother on the week-ends. They plant rice and sugar cane. The arrangement was share farming and both he and his brother earn an income from the farm.

At the time of his death the deceased had three children. The eldest daughter was in her third year at nursing school, the second child a son was at the Fiji Institute of Technology and the third, a daughter was in her first year at the University of South Pacific. All the children were private students and supported by the deceased.

Given that there were no direct evidence given regarding the deceased's personal expenditure or the amount of money the deceased used for himself the court is unable to estimate with certainty the percentage of income used by the deceased for himself. In my view it is very likely that he would spend at least a third of his income from work on himself given that drinks a little bit, smokes and travels to work on public transport. The cost of maintaining himself whilst at work including clothes are necessary expenditures.
I would therefore assess that the estate is entitled to two thirds of his net income. This is in keeping with the decisions in Hem Raj -v- Netani Vetaia & Ors, Labasa High Court Civil Action No. HBC 0068/1995 and Anjula Wati -v- Vakatora Holdings Limited and others Civil Action No. 244/1995 where the Court allowed one third of the net sum for personal expenditure.

One third of his income is therefore $18428 divided by 3 = $6142:60.
Income available to the estate is $18,428 - $6,143 = $12,285:00

Multiplier and Multiplicand

The question now is for how long would the estate have the benefit of this net income and/or how long would the Plaintiff work had he lived but for the accident. The deceased was forty six (46) years of age when he died. He would have worked for a further nine (9) years if he was to retire at age fifty five (55). Multiplying the number of working years left (9) together with the deceased's average annual or net income ( $12,285) was not considered an acceptable way of calculating his total loss of earnings. Allowance must be made for other possibilities or future contingencies, for example in our case the possibility of the deceased dying earlier than age 55 or getting another job or losing his job or even working longer then age 55 years. The calculation of the multiplier has to take into account both the present receipt of damages and the various contingencies the figure arrived at is a figure which is more probable given the contingencies.
Arriving at an appropriate multiplier has tended to become an exercise of comparing precedent cases in which the ages of the deceased are similar. Following the cases of Ratu Isei Turaga –v- Helen Nina Work, CA 46/95 (36 yrs) and Subamma- v- Chandra HCA 373/79 (34 yrs) & Mono Lata –v- Janla Prasad CA 407/97 (36yrs) where the multiplier ranged from 14 to 16. I am of the view however that a multiplier of 9 is appropriate here given his age, his health and the fact that he may work longer then age 55 yrs and that the suggested multiplier of 6 by the Defendant appears low under the circumstances.

Therefore the benefit to the estate would be:-

Benefit to the Estate = $12,285: x 9 = $110,565:00

The Counsel for the Plaintiff has also provided the Court with table which shows an increment of 10% of yearly salary per year for the duration of the working life of the deceased. I am not convinced from the evidence given by the Plaintiff's witnesses particularly a fellow employer that this is indeed the case. That evidence if it to be adduced should be better given by the deceased's employer. The employer was never called to give this evidence. Notwithstanding that, it would be a very kind employer indeed who would grant a 10% increase in salary to their employees yearly. The figure given in the table provided by the Counsel for the Plaintiff shows that it is likely that salesman would earn as much as a judge or a doctor if they remain in the same employment for long periods. For these reasons I am not convinced that the yearly salary of the deceased increased by 10% yearly as submitted.

Income Loss by the deceased from the farm.

Evidence was given by the Plaintiff and her brother in law Mr. Sukul Deo that the deceased also share farmed the family farm and that they planted rice and sugar cane. The deceased spent between four to five hours each week end on the farm and that the family sometimes worked the farm together. That the rice farm would yield approximately 2.5 tons per year from which the brothers share equally. The deceased's share would be 1.25 tons and at the current cost of $600-$700 per ton would net about $1000:00 per year. He would sometimes sell part of his share with his brother. If it was not sold he would receive in my calculation about $750:00 from his share of the rice. Given that his family also helps in the farm I would calculate their loss at $500:00 per year from the cane.

In respect of the cane production the Plaintiff called as a witness one Mr. Lakham Kumar of Natua Seaqaqa, who states that he is the officer in charge Growers Office, Fiji Sugar Corporation, Labasa. He first stated that the farm was known as "Grower 1484" in the Estate of Sukh Raj. Sukh Ray was the deceased's father's name as shown in the deceased's "Certificate of Marriage. That the net income from the cane in 2008 was $7,345:00 and that the cane production for that year was 158.27 tons. He gave evidence that although he has access to the records of cane production he did not have any document with him, however the production varied from year to year. Under cross examination he conceded that the costs of fertiliser, pesticide, labour and other costs would reduce the net income derived. My understanding is that these records can be obtained by the officer and is an important document to produce in this hearing and its absence from being exhibited is counter-productive to the proper assessment of damages under this head. The Counsel for the Plaintiff has suggested that the deceased's share per year from the farm would amount to $750:00 after production costs. I consider this figure as a reasonable amount and I therefore award under this head the sum of $1250:00 as the amount obtained from the farm and which is due to the estate per year.

The total amount due to the estate then becomes: $1,250:00 X 9 = $11,250:00
This amount is included as loss of earnings and added to the $110,565:00 calculated under that head making a total of $121,815:00.

FNPF Entitlements.

I have given in Hari Charan –v- Fonotaga Fusi & Ors,HCA 31/09 the reasons why the claim for FNPF payments was denied. The reason very briefly was that in the absence of this claim being pleaded the Court cannot grant it. The Court followed the decisions of Justice Pathik in Shanti –v- Amalgamated Transport Company Ltd (1997) FJHC 246 HBC 372/91 and Kanta Mani –v-Western Mining Corporation (Fiji) Ltd CA 72/01. The claim for FNPF was not pleaded here and as a result I have no option but to refuse the claim.

Interest
The Plaintiff is asking for interest on the damages awarded. An award of interests is at the discretion of the court and are often given and are payable on the past losses and special damages under section 3 of the Law Reform (Miscellaneous Provisions) Death and Interest Act. In this action I would allow interest to be payable as follows:-

1. Special damages

I would allow interest of 4% p.a. to be payable from the date of death to the date of judgment.

$7,500:000 @ 4% from 17 February 2009 to 25 October 2011. = $798:00.

TOTAL = $8,298:00.

2. Loss of Expectation of Life

I would allow interest of 4% per annum for the award under this head from the date of death to the day of judgment.

$2500:00 @ 4% from 17 February 2009 to 25 October 2011 = $2,766:00

3. Pain and Suffering and Loss of Amenities of Life

I would not allow any interest under this head and would leave the damages as assessed at $6,000:00.

4. Lost years.

I would also allow interest of 6% p.a. to be payable from the date of writ to the date of judgment.

$121,815:00 @ 6% from 31 July 2009 to 25 October 2011. = $7,308:00.

TOTAL = $129,123:00

5. Workers Compensation

Unfortunately what the Plaintiff received as part of Workers Compensation is to be deducted from total damages assessed. The Plaintiff has already received the sum of $24,000:00.

6 Costs

The Plaintiff is entitled to costs which I summarily assess at $2,000:00 for the hearing of the assessment of damages, liability having been admitted.

After judgment the, interest continues to accrue at the rate of 4% per annum pursuant to s.17 of the Imperial Judgment Act; Suresh Charan –v- Suva City Council Civil Appeal No. 12/89.

CONCLUSION.

Total damages awarded are as follows:-

1. Special Damages = $8,298:00;

2. Loss of expectation of life = $2,766:00

3. Pain and Suffering = $6,000:00

4. Lost years = $129,123:00;

4. Deduct Workers Compensation of $24,000:00.

5. Costs = $2000:00

I therefore give judgment to the Plaintiff to the sum of $124,187:00 inclusive of costs.

H A ROBINSON
MASTER

25 October 2011.