Ali v Khan [2012] FJHC 1124; Civil Action 17.08 (25 May 2012)

IN THE HIGH COURT of FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No: 17/08

BETWEEN:

SUBHAN ALI of Navudi Seaqaqa, Vanua Levu as the
Administrator in the Estate of Usman Ali late of Seaqaqa, farmer.
PLAINTIFF

AND:

FIROZ KHAN of Khalsa Road, Newtown Nasinu, Suva, driver.
1st DEFENDANT

AND:

TOPLINE ELECTRICAL SERVICES LIMITED a limited
liability company incorporated in Fiji under the Companies Act having its registered office in 18 Matua Street, Walu Bay, Suva.
2nd DEFENDANT

Appearances: Mr. Sen for the Plaintiff for Samad Law
No Appearance for the Defendants

RULING

Background

This is an assessment of damages in a personal injury matter arising from a motor vehicle accident. On the 3rd July 2007 the Plaintiff's son the late Usman Ali was a passenger in a motor vehicle registration number EB 633 driven by the 1st Defendant when it went off the road at Lomaloma Village at the Labasa/Savusavu Highway resulting in his death. The motor vehicle was owned by the 2nd Defendant. It is not clear from the information before the Court how or why the deceased person came to be in the motor vehicle. The 1st Defendant Feroz Khan was later charged with the offence of "Dangerous driving causing death" and for which he was fined $1000:00 and disqualified from driving for six months on the 4 November 2008 at the Labasa Magistrate's Court. The late Usman Ali was a thirteen year old student at the time of the accident and his father the Plaintiff, sues as the administrator of his estate.

The Plaintiff claims damages against the Defendants under both the Compensation to Relatives Act (Cap 29) and under the Law Reform (Miscellaneous Provisions)(Death & Interest) Act (Cap 27). He alleges negligence against Feroz Khan and paragraph 4 of the claim states that he was "driving with the full consent concurrent and knowledge of the second Defendant". The Plaintiff pleads at paragraph 9 and 10 that "the deceased prior to his death was a very bright and jovial student, who had prospects of success in his academic work" and that his life has "been considerably shortened and his estate has suffered loss and damages". In paragraph 11 of the claim the Plaintiff states that "brings the action on behalf of the estate of the deceased and the following beneficiaries who would have been dependents had the deceased been alive". The particulars of the Dependents are:-

1. Subhan Ali	father	43yrs
2. Hajra Bi	mother	45 yrs
3. Saiban Ali	brother	11 yrs
4. Gulnaaz Shabnam Ali	sister	17 years.

The hearing on assessment of damages

The Plaintiff was the only witness called by Counsel at the hearing and who tendered the following documents:-

(i) Copy of Probate No. 47029 (Exhibit 1)

(ii) Register of Death No. 17575 (Exhibit 2)

(iii) LTA vehicle details and insurance policy extract (Exhibit 3)

(iv) Certificate of Court Proceedings. (Exhibit 4)

In his evidence given under oath Mr. Subhan Ali stated the following:-

1. That he was the father of the deceased;

2. That his late son died as a result of a motor vehicle accident on the 3 July 2007;

3. That his late son was born on the 11 October 1994;

4. That he obtained letters of administration on the 20 February 2008;

5. That his son was a healthy young boy;

6. That he claims for damages under the Law Reform (Miscellaneous Provisions) Death and Interest Act;

7. That he spent $2,500:00 for funeral expenses; and

8. That he claims for lost years and will rely on the "Schedule of Damages" filed with the submissions.

DAMAGES

1. Special Damages

The Plaintiff claims special damages for the following:-
(i). Funeral Expenses : $2200:00
(ii). Fees for Letters of Administration : $1000:00

Section 11 of the Law Reform (Miscellaneous Provisions)(Death & Interest) Act specifically allows damages to be awarded in respect of funeral expenses incurred by the party for whose benefit the action is brought. The Plaintiff is a beneficiary of his son's estate and is entitled to claim for funeral expenses.

The general principle is that special damages should be proved, however funeral expenses are considered within this jurisdiction to be accepted without proof provided it is reasonable. This is so because of the diversity in the society and its customary expectations and as a result a figure of $2,200 is considered appropriate, (see Jona Moli –v- Dr. Francis Bingwar & Ors, Suva High Court Civil Action No: HBC 335/1998). In respect of the fees paid for obtaining the letters of administration of the estate there was no documentary evidence provided for the claim and I would not allow it. I would therefore allow the sum of $2,200:00 claimed by the Plaintiff under this head.

2. General Damages

(i). Damages for 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 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 Plaintiff claims the sum of $20,000:00 under this head however our Courts award under this head 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 accordingly award this sum under this head.

(ii). Loss of Future Support

The Plaintiff further claims that he has been deprived of the loss of future support due to the accident and claims the sum of $10,000:00 under this head. They provide no authority or basis upon which they have arrived at this figure nor do they state under which legislative provision they rely upon, in fact the submission does not help the Court in any way at all. A claim for loss of future support is allowed under the Compensation to Relatives Act (Cap 29.) The parents of a deceased child may still be awarded damages for loss of dependency even where the deceased child was of a tender age, and/or, was still at school and financially dependent on the parent, at the time of death. The reason is that it is assumed that had the child lived he/she would have found employment and contributed financially to the family.
However given that an award for loss of dependency under the Compensation to Relatives Act (Cap. 29) is to be taken away from an award for lost years under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act I will not proceed to calculating and award under this head and proceed straight to assessment of damages for lost years under the later act. This option was taken by Fatiaki J in Hari Pratap -v- Attorney General of Fiji and Anor Suva High Court Civil Action No. HBC 95/1986 and adopted by Master Tuilevuka Pal v Hussain [2011] FJHC 588; Civil Action 73.2007 (23 September 2011).

Loss of future Earnings

The Schedule of Damages provided by Counsel for the Plaintiff and on which he relies as stated in his submission simply states that the " the Plaintiff is entitled for future earnings in the sum of $20,000:00 awarded by this Honourable Court". In its submission the Counsel for the Plaintiff refers to the claim under this head as "Loss of Prospective Earnings" and submits that "the Plaintiff is entitled for future earnings in the sum of $50,000:00 awarded by this Honourable Court". There were no other information or suggestions offered by the Plaintiff's counsel which would help the Court in determining the right amount of damages under this head. There was no explanation as to how the Court could arrive at the figure suggested by them nor did they provide any authority which would be helpful to the Court. The submission unfortunately is below what is expected from the Counsel for the Plaintiff given the damages sought.

A claim for what is termed lost years or loss of future earnings prospective or otherwise accrues to the estate of the deceased under the Law Reform (Miscellaneous Provisions) (death & Interest) Act (Cap.27). The conventional approach in assessing this type of damage is to calculate it by taking into account the deceased's net earnings at the time of death, deducting his personal expenses and then multiplying the remainder with number of lost years or multiplier. This is very well if the deceased is earning an income but where the deceased is not earning an income the calculation is a hypothetical one and it takes into account other possibilities.

Prakash J in Chand –v- Gounder(2001) FLR 83 where the deceased was a 14 year old student made an award for lost years to the sum of $25,000:00. In that particular case his Lordship took into account the evidence of the deceased's school teacher and her colleague who was earning $50:00 per week as a salesgirl. In the present case and given the evidence (or lack of) this Court could do no more than to speculate and as stated by Lord Edmund Davis in Gammel v Wilson (1981) 1All E R 578 at 588

"...assessment of damages for the lost years "is at best speculative, usually pure guesswork, and where there is any basis for making a calculation such a basis is usually unreal".

And again doing the best I can for a 13 year old boy who given the circumstances I assess (from comparison with other matters similar to this) that the deceased could be earning $30:00 per week and hence with an yearly income of $1560:00 per year and using a multiplier of 15 and taking into account the deceased's own expenses I would award damages under this head to be $23,400:00.

I would also allow interest from the period at which the cause of action arose to the date of this ruling in accordance with section 3 of the Law Reform (Miscellaneous Provisions) (Death & Interest ) Act Cap. 27.

CONCLUSION

Damages is therefore awarded to the Plaintiff as follows:-

1. The sum of $2,200:00 for special damages;
2. The sum of $2,500:00 for loss of expectation of life;
3. The sum of $23,400:00 for loss of future earnings
4. 5% Interest under the Law Reform (Miscellaneous Provisions) (Death & Interest) Acton on $28,100:00 from 3 July 2007 to 25 May 2012 which is calculated to be $5,428:00;
5. I also award costs to the Plaintiff of $1,500:00.
6. That the said damages and costs to be shared equally between the Plaintiff and the dependants.

MASTER H ROBINSON
LABASA HIGH COURT
25 May 2012.