Chand v Fusi [2011] FJHC 668; Civil Action 31.2009 (25 October 2011)

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HARI CHAND of Korowiri Labasa, as administrator in the Estate of Bimal Vikash Chand late of Korowiri , Labasa.
PLAINTIFF

This is a ruling on an assessment of damages in an action arising from a fatal accident. On or about the 17th of February 2009 the late Mr. Bimal Vikash Chand was driving motor vehicle registration number EW 687 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. Two people died and two others 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 father and Administrator of his late son’s Estate 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 12 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 17 June. The parties were then given a time table for submissions the last of which was received on the 22 July. The initial intention was to give the two assessments of damages in both the fatal accident cases upon receipt of all the submissions, the last submission was received yesterday.

The late Mr. Chand was a healthy young man of 28 years, was permanently employed as a Salesman with Makans Drugs and Pharmaceutical Supplies Limited in Labasa and earned the sum of $396:00 per fortnight. He was single and lived with his parents at Korowiri, Labasa. The Plaintiff as the Administrator of the Estate 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;

(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:-

“The deceased was at the time of his death a healthy and happy man aged 28 years and was in his said employment and was earning a sum of $396:00 fortnightly. The Plaintiff received from the deceased a sum of $250:00 out of which he 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 mother 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 above particulars and nature of the claims formed part of the Statement of Claim.

ACTIONS UNDER THE COMPENSATION TO RELATIVES ACT (Cap. 29) and THE LAW REFORM (MISCELLANEOUS PROVISIONS) DEATH and INTEREST ACT (Cap. 27).

Prior to the introduction of the above Acts the rights of action in tort ended on the death of the injured party because an action in tort was originally regarded as merely punitive and only later as compensative. During this period the maxim “action personalis moritor cum persona” became the directing legal principle and all fatal tortuous cases were, generally speaking, unsuccessful where either the tortfeasor or the victim/plaintiff had died as a result of the accident. The only exception of this common law rule was that an action could be sustained against a deceased estate representative in respect of property appropriated by the deceased and formed part of the estate. The introduction of the above Acts allowed an action in tort to survive the death of a party through his/her personal representative and by the dependents by abolishing the above maxim.

Nature of actions under the “Compensation to Relatives Act” (Cap. 29)
Section 3 of the Compensation to Relatives Act provides that an action may be brought for the benefit of the dependents of any deceased person who wrongfully caused the death. The section states:

3. 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.

As can be seen the condition of the existence of the cause of action under the Compensation to Relatives Act is that the wrongful act, neglect or default which caused the death must be such as would have entitled the deceased to sue had he/she not died.

Under section 6 of the Compensation to Relatives Act, damages shall be divided amongst the dependants in such shares as the Court determines. The sum in respect of funeral expenses may also be awarded if such expenses were paid by the dependents. Damages are awarded as compensation for pecuniary loss suffered by the dependents of the deceased as a result of the death hence if no pecuniary loss can be proved then the claim fails. However damages are calculated in “reference to a reasonable expectation of pecuniary benefit as of right, or otherwise, from the continuance of life” (Hetherington –v- N.E.Ry. [1882] UKLawRpKQB 115; (1882) 9 Q.B.D. 160;Kassam –v- Kampala Aerated Water Co. (1965) 1 W.L.R. 668).

The damages payable then under the Compensation to Relatives Act is calculated with reference to a reasonable expectation of a pecuniary benefit as of right from the continuance of life. Of whose life? The answer, is for both, the dependents and the deceased’s life. Therefore if damages are payable, under the Compensation to Relatives Act, for the loss to a reasonable expectation, by the dependents, of a pecuniary benefit as of right then it follows that the dependents future prospects after the death must be taken into account. In an action by an elderly widow on the death of her husband for example, her own expectation of life is a material factor and accordingly evidence of her state of health. If she dies before the trial, damages would be awarded to her estate for the period of her survival only, not upon an expectation of her life when her husband was killed. Similarly in this matter the life expectancy of the dependants and hence evidence of their state of health need to be taken into account. Indeed it is accepted, generally speaking, that a child would outlive his/her parents and therefore the pecuniary benefit to dependent parents are those benefit reasonably expected from the deceased had he lived through the life of his/her parents. This is the expected period of dependency. In Daya Ram –v- Peni Cara & Ors, CA No.59/82 Speight JA said (at p149) while distinguishing the difference between the Compensation to Relative Act and the Law Reform (Miscellaneous Provisions) Death and Interest Act:-

“... Such claims are brought in Fiji under the Compensation to Relatives Act (Cap. 29). In such cases, in this and other jurisdictions, such a claim is calculated by examining the amount of money which dependant relatives had been receiving in the past for their support and which they might legitimately have expected to have received in the future provided the deceased had had the means to make such payments and could have been expected to continue making them. This was a purely mathematical calculation of how much he would have been worth in money terms to his dependants for whatever was the expected period of dependency.

Section 2 of the above act enables an action in tort, to survive against or as the case may be for the benefit of the estate of the deceased. And where a cause of action survives for the benefit of the estate of a deceased person, any damages recovered shall not include any exemplary damages and further any calculation of damages shall not be considered as a loss or benefit to the estate. Hence all the damages recoverable on behalf of or against the estate of a deceased person are the same as the damages which would have been recoverable by or against the deceased had he/she survived. That is, that the cause of action where a person dies instantly is completed by the injuries and is vested in the deceased at the moment of death, this seems to be the underlying rationale.; (see Rose v Ford (1937) A.C. 826, per Lord Roche at p. 856). Funeral expenses may also be recovered.

Where the deceased died instantly damages for pain and suffering and loss of amenities, do not apply, however damages for loss of expectation of life survived for the benefit of the estate but are assessed as a relatively low conventional sum. It is accepted that damages for personal injuries in the case of a living plaintiff do include a sum to compensate the plaintiff for loss of earnings during those years, that is "the lost years" for when a plaintiff would normally have expected to live and work but as a result of his injuries now faces a premature death and consequent loss of overall earnings expected from a normal lifespan. However those loss of earnings for the lost years are subject to the deduction of a sum estimated to represent the deceased's own probable expenses during those lost years. This is so because the deceased's early death would preclude any need for this class of expenditure. This claim for lost years is recoverable under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act. Cap. 27.

In Daya Ram –v – Peni Cara & Ors Civil Appeal No: 59/82, Speight J A stated in reference to the claim for lost years under the above act that:-

"It finds its justification in the Law Reform (Miscellaneous Provisions) (Death & Interest) Act. Cap. 27. The claim is brought under section 2 and is for the benefit of the estate in respect of all causes of action which the deceased had at the time of his death. In the case of a person who is injured an action lies by him in tort for such damages as will represent in money terms his loss of future earnings; how he would have spent those earnings in the future is irrelevant to such a claim. By the statutory provision of Cap. 27 in the case of a man who is injured and dies the cause of action for the lost years vests in the deceased when he is injured and in the case of instantaneous death immediately before his death, and after death passes to his personal representative. Such claims are authorised in the English legislation by the Law Reform (Miscellaneous Provisions) Act 1934 which is for present purpose the equivalent of the Fiji Statute.

Accordingly the claim on behalf of a deceased estate for loss of earnings for lost years is now firmly established as on the same footing as the same claim by a living person, subject to the reservation as to deduction of personal living expenses."

At the beginning of the hearing of the assessment of damages the Plaintiff abandoned his claim against the defendants under the Compensation to Relatives Act. Cap 29 and chose instead to proceed only under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act. Cap 27. Because of the possible duplication of damages which may arise in claims of this nature where the Plaintiffs are both dependents for the purposes of Compensation to Relatives Act and the Administrator under Letters of Administration for claims under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act, the decision to proceed only with the one claim was a prudent one. This assessment of damages will now proceed only under the Law Reform (Miscellaneous Provisions Death and Interest Act Act.).

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.

No documentary evidence was given regarding these two claims and the miscellaneous expenses in particular was said to be the expenses incurred in the purchase of grog/yaqona and other refreshments consumed by people who came to extend their condolences during the nine days in which the Plaintiffs waited for a post mortem to be conducted. As much as I can appreciate the expenses which may be incurred under miscellaneous head I am unable in the absence of any evidence, agree to this sum.

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 has conceded that a sum of $2,500:00 is acceptable and I therefore award it accordingly.

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 further confirmed by Lord Morris in Yorkshire Electricity Board –v- Naylor (1972) 2 ALLER 1 at p.6:-

"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. .........He lost what is usually called his expectation of life. The loss was something personal to himself......"

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.

Claims under this head are deducted from the damages awarded under the Compensation to Relatives Act Cap.29 and not under claims under Law Reform (Miscellaneous Provisions) Death and Interest Act. Cap 27;(see Jai Kissun & Anor v. Maciu Ualala & Anor FCA 61/79.

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:-

(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 deceased was a salesman with Makans Drugs and Pharmaceutical Supplies of Labasa. He was employed with the same company for more than ten (10) years. He was a healthy young man of 28 years of age and lived with his parents at Korowiri, Labasa. He was once married but is now divorced.

It was not in dispute that the deceased earned $396:00 per fortnight out of which the sum of $31:68 was deducted for his contributions to the Fiji National Provident Fund. His income was not taxable as it was not within the taxable threshold. Hence his net wage was $364:32/fortnight.

Two other types of "payments" became the points of contention between Counsels. The first payment was called bonus or incentives which is payable if the sales were above certain amounts calculated on a two monthly basis. And the other type of payment was a yearly "commission" said to be paid to every salesman when the total sales per year was beyond the targeted sales achieved for the year. It appears that the two types of payments or commissions were inter-related in that if a salesman achieved all his/her two monthly target during the year then yearly commissions naturally follows. This seems to be the argument used by the Plaintiff. In support of this contention a copy of the deceased's record of incentive payment from 2005 to 2009 was produced and tendered. The source of this document was the Defendant's counsel. It was marked as "Exhibit 6". This record of incentive payment shows the following payments were made:-

Year	Total Payments
1. 2005	$1,100:00
2. 2006	$1775:00
3. 2007	$2421:75
4. 2008	$712:25
5. 2009	$770:00
TOTAL payment received from 2005 to 2009	= $6,779:00

It is not disputed that incentive payments were made to the deceased and that these were calculated on a two monthly basis. Given that the range of payments made varies from $2479 to $654 almost from one year to the next it is difficult to calculate the right mean which could be adduced. On top of that there is no clear evidence that the deceased received any payments for any period prior to 2005 although the evidence adduced by the plaintiff is not disputed is that the deceased had worked on the same job for ten years.

The defendant acknowledged that such incentive are paid and suggested a figure of $770:00 for two years under this form of payment. The plaintiff on the other hand suggested a figure of $1,591:37 per year. What is clear though is that for every year, everything being equal, six incentive payments are made, hence it can be said that a total payment made in one year may be divided by six to give an average for that year. Therefore for the period from 2005 to 2008 the sum of all the payments would have to be divided by 24 to give an average two monthly incentive payments. For the year 2009 there were only two payments. However the exhibit tendered shows that for the year 2005 there were seven (7) payments even when the payment made on the first month of every year is excluded. The best way to deal with it is to divide the amount of money actually paid by the number of years multiplied by six with the exception of the year 2009. For the year 2009 you would add two as there were two payments for that year.

Therefore the average incentive payment would be: $6779:00 divide by 26 = $260:73

I would allow a figure of $1,500:00 per year as incentive payments. His total income per year would then be:

From this net earnings is deducted an amount calculated to be an amount used by the Plaintiff for himself. This figure will be represented by a percentage of his total income. Evidence was given by the Plaintiff that after each fortnightly pay the deceased would take back about $50:00 to $60:00 dollars for himself. He was a non-smoker, did not drink and was healthy. He was married once but is now divorced. He said that the deceased was their only son. That he has two types of telephones both mobiles voda-phone and an Ezy –Tel. That he pays land rent on the property but no amount was given. That the plaintiff suffers from high blood pressure and is diabetic. After the demise of his son he and his wife manage to survive by planting vegetables. He knows that his son gets bonuses every two months but does not know anything about yearly bonuses.

In cross-examination he stated that he used to be a cane farmer but that his lease expired and he now lives on a house block he got from a Fijian man. That the land rent was $350:00 every six months.

That the deceased did not have any interest in sport but just stayed home after work. That the deceased if he went out with friends would then take some money – some extra money. That his son had a mobile phone but he and his wife do not. He also said that the deceased had an older brother living in Nadi. He also said that the deceased also drinks grog every now and then. This point was not pursued in re – examination nor the point that the deceased was given extra money from his parents if and when he went out with friends. What is clear from the evidence is that the deceased gives his parents his pay packet every fortnight and his parents gave him back between $50 to $60:00 dollars but that they gave him more if he needs it.

There was no evidence given by the plaintiff regarding the disposal of the "incentives " received by the deceased, whether he gave it all to his parents or kept it for himself. He owns a mobile phone goes out with his friends every now and then like any other healthy twenty eight year old man. He drinks grog every now and then and I have no doubt that he may have indulged in the odd alcoholic drink with his friend every now and then too. He is of course healthy none the less and there is no evidence to say otherwise.

The percentage of his net earnings used by the deceased for himself was suggested by the plaintiff's solicitor to be about 20% whilst the defendant said that 50% was a more likely figure. What percentage would a healthy, normal 28 year old man use for himself? Firstly in relation to employment the deceased has to travel to and back from work, he incurs travelling expenses, he has to take his lunch an expense incurred by him through his parents. Undoubtedly he would have spent money on clothing and other sundry expenses. Some money must have been utilised for his own entertainment.

What made the assessment difficult in this matter is that Counsels often provide evidence which are not specific to the need to establish the value of his estate under Law Reform (Miscellaneous Provisions) Death and Interest Act. Very often evidence adduced refer more on dependency and are more relevant to the Compensation to Relatives Act. It is necessary to account all that the deceased would have spent on himself so that where he/she has no dependents the damage to be allowed are to be based only on the excess, if any, of his income over his expenditure, i.e. his savings. Hence the percentage of personal expenditure is reduced which in turn increases what is available to the estate. Calculating what a person spends on himself is not a mysterious art form requiring the invocation of other forces, the mystery lay in the parties inability to adduce sufficient evidence. As an example we can calculate his expenditure this way:-

(it goes without saying that he would need work clothes – there was no evidence that work clothes were provided by the employer)

(i). As a twenty eight year old man once married now divorced I would allow = $20:00

(this figure includes, movies (DVD's etc.), recharge of mobile phones, yaqona with friends and going out generally);

(it is true that the deceased lived with his parents but there was no evidence provided regarding the ownership of the property and notwithstanding that he lived with his parents he still has to repay his parents for the their expenditure in sustaining him. It does not follow that the fact that he lives with his parents that he does not owe them for sustaining him)

Expenditure as a percentage of weekly income ($73 divide by $182:00)% = 40%
By calculating his expenditure in this fashion we could estimate how much or what percentage of his income the deceased used for himself. It would be safe to say then that the deceased would have used about one third of his wages on himself. This is further confirmed by the evidence adduced by his father that they give back to him between $50-$60 per week and that if he goes out they give him more. So a figure of $73:00 could be within this vicinity. I would therefore give the benefit to the deceased and calculate his expenditure as approximately one third (1/3) of his income. This seems to be the position 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. In Prasad –v - Hakim (2008) FJHC 359 the court after consideration of the evidence before it calculated the personal expenditure to be 40%.

I would therefore allow his net income (or savings) after personal expenditure as = $7,315:00
This is the net income (or savings) available to the Estate.

So far we have established that the Plaintiff is entitled to the following damages:-

The question now is for how long would the estate have the benefit of this income or how long would the Plaintiff work had he lived but for the accident. The deceased was twenty eight years of age when he died. If he was to retire at age 55 (being the current retiring age) he would have worked for a further 27 years, everything being equal. From the above it would appear to logically follow that the estate is entitled to the loss to it of the sum equivalent to 7,315 ('y') multiplied 27 ('x') years. Although this is a good starting point it is unfortunately, not the way in which loss of future earnings is calculated. Multiplying the number of working years left ('x') together with the Plaintiff's or the deceased's average annual or net income ('y') was not considered acceptable because that sum is a sum spread over a period of years and must be discounted so as to arrive at its equivalent in the form of a lump sum payable at his death as damages. A further allowance must be made for other possibilities or future contingencies, for example in our case the possibility of the deceased getting married and having children or his dying earlier or getting another job or losing his job. The calculation for this loss by the English Courts was very simple, they just reduced the number of working years left (i.e. 'x'). And the figure arrived at, called a multiplier, has allowed for both the present receipt of damages and the various contingencies. However what appears as a simple reduction of the working years left was really an exercise in probability. Lord Diplock in Mallet –v-McMonagle (1970)AC 166 at 176 explained the rationale in this way:-

"The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages it awards."

"The starting point in any estimate of the number of years that a dependency would have endured (or the estate to have gained!) is the number of years between the date of the deceased's death and that at which he would have reached normal retiring age. That falls to be reduced to take account of the chance, not only that he might not live to retiring age, but also the chance that by illness or injury he might have been disabled from gainful occupation. The former risk can be calculated from available actuarial tables. The latter cannot."...

Hence the appropriate multiplier has tended to become a matter of precedent and what could be seen is that even in the case of a young man deprived of thirty or forty years of his working life the multiplier seldom exceeds 16. This is the position in our jurisdiction. The table below shows the ranges of multipliers used in this jurisdiction:-

Action No.	Parties	Age at death	Multiplier
ABU 0046/95 (Court of Appeal)	Ratu Isei Turaga –v- Helen Nina Work	36	14
C/A 373/1979 (Suva H/C)	Subamma -v- Chandra	34	16
C/A No. 407/97	Mono Lata -v- Janla Prasad	36	14
C/A 242/903S	Jaipal Singh -v- Ted Young	29	14
C/A 077/02S	Suman Lata -v- Enkaiya Narayan & Ors.	31	13
ABU 85/85 (Court of Appeal)	Josefa Sigavolavola –v- Giyan Mati	30	15
C/A 611/93S	Jai Narayan –v- Attorney General	33	11
C/A 40/96L	Bihi Nanson –v- Ramesh Chand	33	10

Given the age of the deceased and the possible years of working life left and in keeping with the Courts decision in Attorney General –v- Edward Michael Broadbridge; Subamma-v- Chandra HCA 373/79; and Attorney General –v- Paul Parvin Sharma, CA No: 728/84 I would allow a multiplier of 16. Therefore the benefit to the estate would be:-

Before concluding the assessment for the lost years it is prudent to perhaps address the calculation provided by both Counsels. Counsel for the Plaintiff on his assessment of damages under this head used as starting point in the calculation the "acceptance" of the 10% yearly increase in the deceased's wages. The evidence for this was obtained from his 2nd witness Mr. Amuk Chand who was at the time also employed with the deceased. The evidence was adduced from the following exchanges:-

Q: At time of death V Chand earning same wages as you.
A: Yes
Q: Increament of wages?
A: Yes every year
Q: In 2009
A: Was $360:00
Q: Increase of 10% of gross wages?
A: Yes

Therefore if $360:00 represented 10% of his income per year, his income would have been $3,600:00. This is not correct as his total gross income for the year on at $396:00 per fortnight was $10,296:00. Notwithstanding that this point was not questioned by Counsel for the defendant this statement was incorrect in itself and need not be pursued any further. As a consequence of the acceptance of this increment all the calculations made by Counsel for the Plaintiff in his well thought out table of net income taken for a period of sixteen (16) years from 2009 to 2024 was incorrect by a compounded figure of 10%. I do not agree that the deceased's wages increased by 10% every year without this evidence being adduced directly from his employer. This piece of evidence was adduced from a fellow employee.

The defendants counsel on the other hand calculated or assessed general damages by a method perhaps more suited to a claim under the Compensation to Relatives Act in that he was looking at the parents expenses more than a realistic assessment of what the net self expenditure of a young man of twenty eight (28) years living at home with his parents was. The key to the assessment is what is left to the estate after the net expenditure of the deceased is calculated. The Defendants suggest that 50% of the net income appears to be correct but no attempt to bring out this evidence was forthcoming. The Plaintiff's Counsel thought that 20% was more likely. Neither of them adduced sufficient evidence to convince the Court that their own suggested percentage of income used by the deceased was more probable.

Counsel for the Plaintiff in its submission also seeks the payment of the employer's contribution of the Fiji National Provident Fund. The claim for FNPF contribution is allowed, see Alusio Daino -v- Attorney General Suva High Court Civil Action No. 515/1996.

The employer's contribution is currently on 8% of the employee's gross income. Counsel for the Defendant submits that this claim could only be allowed if pleaded. In Shanti –v- Amalgamated Transport Company Ltd (1997) FJHC 246 His Lordship Justice Parthik denied this claim for two reasons, firstly there was no evidence before him that the deceased was a FNPF contributor although there was evidence as to net pay but not basic salary which shows any direct deductions. Secondly and more importantly for His Lordship was that it was not pleaded.

In our matter there is evidence that the deceased was a FNPF contributor. The wages slip tendered showed that the deceased's contribution per fortnight was $31:68. There was no objection to the tendering of the document nor was this issue raised by the defendant. The question now is, notwithstanding that evidence was adduced to show that the deceased was a FNPF contributor, can the court grant damages under this head in the absence of it being pleaded? This question was asked by His Lordship Sir Edward Williams in the Court of Appeal decision in Kanta Mani –v- Western Mining Corporation (Fiji) Ltd Civil Appeal No: 72/01. His Lordship said (at page 9):-

..."The question whether a claim under the FNPF should have been pleaded as special damages was but faintly raised before this Court. Sufficient is it to say, that at trial the matter was very much in issue, resulting in an order by the learned judge to deduct from the dependency loss a substantial part of the sum paid from the funds. Certainly any claim for diminished benefits in the future, arising on the premature termination by death, of payments both from employer and employee, would sound in general damages" ....

..."Clearly the matter should have been so pleaded as to appraise the defendant what issues it had to meet. Failure to do so would result in an adjournment. I see nothing in Singapore Bus Service(1978)Ltd –v- Lim Soon Young (1985) 3 ALL ER 437 to support the suggestion of special damages. What did happen there was that the pleading was amended to add after the words "suffered loss damage amounting to $800:00 per month", the words "in addition to the C.P.F. (read FNPF) contributions"...

Singapore Bus Service (1978) Ltd. –v- Lim Soon Young was a matter determined under section 12 of the Civil Law Act of Singapore, this act is the equivalent to our Compensation to Relatives Act. The facts relate to a fatal accident and the claim of the deceased's wife for damages on her behalf, her children and the parents of the deceased. No claim was made on behalf of the estate because at the time, the claim was statute barred. In the original statement of claim it was alleged that the dependents had "suffered loss and damage amounting to $800:00 per month". Liability was admitted and the matter came before the "Assistant Registrar" for assessment of damages and before the Assistant Registrar the pleading was amended to add the words "in addition to the C.P.F. contributions". A similar pension scheme as FNPF in Fiji was in existence in Singapore at the time of the claim called the Central Provident Fund Act which required contributions to be paid by the employee and employer. (It appears that the C.P.F. Act preceded our FNPF Act by eleven (11) years.) Both acts are the same in that the contributions are compulsory. This matter came before the Privy Council on appeal from the defendant upon the grounds that the loss resulting from the cessation of contributions to the fund is a loss to the estate and as such should have been claimed under section 8 of the Civil Law Act (Law Reform (Miscellaneous Provisions) Death and Interest Act). The appeal was unsuccessful and their Lordships were of the view that the fact that the deceased's estate might have a claim under section 8 of the Civil Law Act in no way affected the right of the defendants to claim for loss under Section 12 since the two claims were independently sustainable. That is that a claim for FNPF entitlements are independently sustainable both in actions under the Compensation to Relatives Act and under the Law Reform (Miscellaneous Provisions) Death and Interest Act. In short the above cases point to one conclusion and that is that a claim for FNPF entitlements must be pleaded so that the Defendant is sufficiently appraised as to the issues to meet, notwithstanding the general nature of the claim or the fact that evidence was adduced. Such a claim is general in nature because it is seen as a "diminished benefit in the future, arising on the premature termination by death of the employee" the total sum of which is determined by the multiplier, a multiplier determined on probabilities. On the above basis the claim by the Plaintiff for FNPF payments is denied.

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:-

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

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

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

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.

The Plaintiff had also received from Workers Compensation the sum of $24,000:00 which is
to be deducted from the total damages assessed.

I would also award cost to the Plaintiff for the hearing of the assessment of damages to the sum of $2,000:00.

I therefore award damages to the Plaintiff inclusive of costs to the sum of $116,755:00.

High Court of Fiji

Chand v Fusi [2011] FJHC 668; Civil Action 31.2009 (25 October 2011)