Naikau v Ali [2012] FJHC 1452; HBC189.2002 (2 November 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 189 of 2002

BETWEEN:

VENIANA NAIKAU
[Plaintiff]

AND:

FAUZAAN ALI
[Defendant]

Counsel : Mr. D Singh for the plaintiff
Mr. R Singh for the defendant

Date of Judgment: 2nd November, 2012

JUDGMENT

[1]. This action was initiated by the plaintiff as the widow and administrix of the estate of her late husband Saimoni Batiyalo who died due to injuries sustained after a motor traffic accident on 18.05.1999.

[2]. The plaintiff claims inter alia special damages and general damages. The plaintiff alleged that the said accident took place due to the negligent driving of the defendant. It is further alleged that the defendant failed to exercise degree of care and control over the vehicle which hit the deceased.

[3]. The defendant filed his statement of defence admitting the fact that he was the driver and the owner of the vehicle number DJ 102 at all material times but denied that he caused the alleged accident.

[4]. At the pre-trial conference, both parties admitted that the deceased was hit by the said motor vehicle number DJ 102 driven by the defendant resulting in his death on 18.5.1999.

[5]. This case was tried before Justice Jitoko and reserved for judgment, but Justice Jitoko was unable to write the judgment before his retirement.

[6]. When the case was called before me on 28.10.2010, the defendant's counsel moved for trial de novo but the plaintiff's counsel objected.

[7]. Having being considered the history of the case, in particular the fact that the accident occurred in 1999, the trial was concluded in 2003 and the likelihood of inability to recollect the facts clearly by the witnesses, court decided in the interests of justice to deliver the judgment based on the evidence led before Justice Jitoko. Accordingly, both parties were allowed to file their legal submissions.

[8]. Five witnesses namely Peniasi Cokanalagi, Samisoni Ralulu, Sulaisi Dau, Veniana Naikau and Yasmin Nisha testified for the plaintiff whereas the defendant Fauzan Ali had given evidence for the defence.

[9]. The first witness Peniasi Cokanalagi was a police officer attached to the Nabua Police Station. According to him, he interviewed the defendant and recorded two statements from the defendant and these were marked as P2 and P3 respectively. He indentified the defendant as the driver of the vehicle DJ 102. When the witness went to the scene of the accident, he had also taken photographs of the scene.

[10]. The second witness was Samisoni Ralulu and officer attached to the Nabua Police Station. According to his evidence, he had arrived at the scene 5 minutes after the accident.

[11]. He prepared the sketch plan and took measurements at the scene. The sketch plan marked as P4 was tendered to the court. The witnesses' evidence when analysed shows that the deceased was hit by the vehicle when he was on the pedestrian crossing. Further, no brake marks were visible on the road.

[12]. The witness observed that the deceased was dragged for about 10 meters from the point of impact. He had come to that conclusion by observing blood patches on the road. The point of impact was shown to the witness by a person who accompanied the deceased.

[13]. The third witness for the plaintiff was Suliasi Dau. He was crossing the road with the deceased at the time of the accident. According to him, the green light for crossing was on when they were crossing the road. He also stated that when the deceased was hit, he was thrown up and hurled out and landed in front of him and blood flowed out of his mouth and nose.

[14]. Although the witnesses had failed to state to the police that green light was on when they were crossing the road, it does not taint his credibility and therefore, I have no reason to disbelieve his evidence.

[15]. The next witness is Veniana Naikau the widow of the deceased who was also the plaintiff. She gave evidence as to the financial support given by the deceased. She had two children who were 6 years and 2 years at the times of the death of the deceased.

[16]. The fifth witness for the plaintiff was Yashmin Nisha. She was an eye witness to the accident. The witness very clearly stated that when the deceased was hit by the vehicle he flew over the car and landed. At the time of the accident the witness was sitting on a bench which was in front of her office. She further stated that the driver of the car did not stop but sped away after the accident.

[17]. The witness noted down the number of the vehicle and called the police. She stated that she was sitting outside the office although she stated to the police that she was inside the office.

[18]. The defendant in his evidence also admitted the fact that the accident occurred while the deceased was on the pedestrian crossing. The defendant further stated that he saw two Fijian lads crossing the road at the bus stop, when he was about 4 meters away, they stood still on the white line of the lane on the defendant's left, the defendant only saw the first person as the other shadowed of first, suddenly one of the two crossed in front of him and the defendant applied brake.

[19]. It must be noted that according to the observations made by the police no brake marks were visible, which shows that the defendant had not applied brakes though he saw the deceased some 4 meters away.

[20]. The answers given by the defendant in cross examination clearly demonstrates his evasiveness when it came to a vital point. He had made every attempt to avoid answering questions pertaining to the vital facts contained in his statement to the police.

[21]. When the evidence of the plaintiff's witnesses and the defendant's are considered it is obvious that the accident occurred due to the negligence of the defendant. The defendant had made unsuccessful attempt to show that the deceased suddenly crossed the road and therefore he had no time to avoid the accident.

[22]. It must be noted that this accident occurred on a pedestrian crossing, and evidence shows that the defendant had not applied brakes when he saw the deceased. The point of impact, the distance between the deceased and the vehicle when the defendant first saw the deceased, all lead to an inevitable conclusion that the defendant's negligence had caused the accident.

[23]. Further, I was able to draw inferences from the evidence of Suliasi Dau and Yashmin Nisha that the defendant was driving at an excessive speed at the time of the accident.

[24]. I considered the defendant's evidence, when he stated that he only saw the deceased when he was about four meters in front of the vehicle. Since there was a pedestrian crossing, the defendant was required to take extra care in passing that place. The defendant's evidence that the deceased suddenly crossed the road, the defendant applied breaks but still the vehicle hit the deceased is therefore totally unacceptable and does not help him to escape from the liability.

[25]. Further, there was evidence that it was not raining and weather was fine. The road was 8 – 11 meters wide and straight. Therefore, I am of the view that if the defendant was driving at a reasonable speed and took reasonable care he could have avoided the accident even if he had seen the deceased just 4 meters in front of his vehicle.

[26]. The evidence before me amply demonstrates that the defendant was driving at an excessive speed and paid little or no attention to the pedestrians. Therefore I am convinced that the accident occurred as a result of the negligent driving of the defendant.

[27]. The post mortem report, marked as P1 was tendered by consent and that itself is evidence of the fact that the deceased died due to injuries sustained in the accident.

Assessment of damages

[28]. The plaintiff is entitled to recover damages from the defendant since the negligence on the part of the defendant was established on the balance of probability by the evidence produced by the plaintiff.

[29]. The deceased had two children and at the time of his death they were 6 years and 2 years old. The plaintiff does not have a permanent job. The deceased was born on 26.5.64 and remained married to the plaintiff at the time of his demise. At the time of his death the deceased was 34 years old.

[30]. According to the plaintiff's testimony, the deceased was in good health and was employed as a fisherman and a farmer, whose main source of income was selling fish, dalo, yaqona and vegetables, which earned him an average income of $5,000 per year. It was proved that the deceased was the sole breadwinner of the family. Although, the plaintiff failed to tender any documentary evidence to prove the deceased's annual income, I have no reason to disbelieve her evidence nor do I consider $ 5000.00 is an excessive or hypothetical amount. Upon consideration of the above, I assess the annual income of the deceased at $5000.00.

[31]. Needless to say, that the plaintiff and her two children were totally dependent on the deceased's income for their needs in day to day life and would find difficult to meet their expenses after the death of the deceased.

General Damages Pain and Suffering

[32]. In this case the plaintiff is entitled to claim for pain and suffering under the head of general damages.

[33]. The deceased met with the accident on 9.5.1999 and was in hospital for 9 days before he died. The plaintiff in her evidence explained how she observed the deceased feeling pain when he was lying in the hospital. The post mortem report also shows that the deceased had a skull fracture and died due to head injuries. Obviously, the deceased would have suffered from excruciating pain due to the injuries he sustained. Considering the above, I conclude a figure of $5000 would be reasonable under this head.

Damages under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act for loss of prospective earnings:

[34]. In considering damages under this head, the following passage from the judgment of Lord Morris in Yorkshire Electricity Board –v- Naylor (1967) 2 AER 6 is of much significance.

'Though it is said that his death was instantancious the appellant 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 state. The judge had to decide what sum of damages should reasonably he 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 that life would in fact have held for him had he lived. No one will ever know the changes. The chance and vicissitudes of life are in the future. He will not know them. No surmise can with any measure of confidence be made whether by his untimely death he was denied happiness or was spared unhappiness. The task of 'equating incommensurables'' is one that can never be satisfactorily achieved.'

[35]. The award under this head is solely in regard to loss of expectation of life and in Fiji it is limited to a moderate sum.

[36]. In Hari Pratap –v- A. G Civil Appeal No 14/92 FCA the Court of Appeal awarded $2500 for loss of expectation of life. This was followed by the Court of Appeal in the Medical Superintendent & AG of Fiji and Abdul Hafeez Ismail, Civil Appeal No. 50/2000. In that case court applied the principle in Davies –v- Powell Daffryn Associated Collieries Ltd [1942] AC 601 and stated that any award under this head must be deducted from the Cap 29 award.
[37]. On the above premise, I award a sum of $2500.00 under this head of loss of expectation of life and this sum shall be deducted from Cap 29 award.

Compensation to Relatives Act Cap 29

[38]. Section 3 of the Act reads:-

" 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 ensured shall be liable to an action of 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".

[39]. In Mc Carthy –v- Palmer (1957) NLLR 442 it was held:

"A claim under the Deaths by Accident Compensation Act 1952, on behalf of the widow and children as the result of the death of the husband and father respectively discloses no cause of action under the statute, since damages are recoverable there under by members of the family only to the extent of the loss of presumed advantage by the persons for whose benefit the action is brought."

[40]. Under section 4 cap 29, the plaintiff and her two children are entitled to claim compensation as dependants. Hence, it is important to decide the amount of dependency of the plaintiff and the children and the multiplier.

[41]. The purpose of awarding damages under this head was stated by Lord Diplock in Mallet –v- Mc Mongle (1969) 2 AER 178 as follows:

"The purpose of an award of damages under the Fatal Accident Act 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 defendant, 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".

[42]. In the instant case, the deceased's main source of income was farming and fishing and therefore it is necessary to ascertain the amount spent by the deceased on himself and his living expenses. In deciding this, the following passage by Lord Wright in Davies –v- Powell Duffryn Associated Collieries Ltd (1942) AC 601 – 617 is of much importance.

"There is no question here of what may be called sentimental damage, bereavement or pain and suffering. It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years purchase".

[43]. Since I have already assessed the deceased's annual income as $5000.00, now let me ascertain the earnings or benefits which the widow and the children were deriving from the deceased before the death i.e. the annual dependency.

[44]. In assessing this I would adopt the method described by Lord Diplock in Mallett –v- Mc Monagle (supra) at page 178. There Lord Diplock described:

"To assess the damages it is necessary to form a view on three matters each of which is in greater or less degree one of speculation:

(i) The value of the material benefits for his dependants which the deceased would have provided out of his earning for each year in the future during which he would have provided them had he not been killed;

(ii) The value of any material benefits which the dependants will be able to obtain in each such year from sources (other than insurance) which would not have been available to them had the deceased lived but which will become available to them as a result of his death;

(iii) The amount of the capital sum which with prudent management will produce annual amounts equal to difference between (I) and (ii) i.e 'the dependency' for each of the years during which the deceased would have provided material benefits for the dependants had he not been killed.

[45]. In the present case, to arrive at the dependency sum for the plaintiff and two children, I will deduct the sum expended by the deceased on himself and his living expenses from the deceased's annual income of $5000.00. Considering the facts of the case, I would allow one-fourth of $5000.00 for personal and living expenses of the deceased. Accordingly, the dependency for the plaintiff and two children therefore come to three-fourth of $ 5000.00 which amount to $ 3750.00 per year.

[46]. The next important issue is to arrive at an appropriate multiplier. In deciding this, I will take into account the age of the deceased, the source of his income, vicissitudes of life and etc.

[47]. At the time of his death, the deceased was 34 years old. There was no evidence that he suffered from any sickness or had any medical complications. Considering the nature of his work, it is very likely that he would have worked at least till the age of 60 years. On that basis, I decide the loss of dependency 26 years and the appropriate multiplier is 15. Therefore the annual dependency of $3750 should be multiplied by 15.

Funeral Expenses

[48]. Although the plaintiff claimed funeral expenses in her statement of claim no oral or documentary evidence was lead to substantiate her claim for funeral expenses. However, considering the traditions and customs practiced in Fiji, I award a nominal sum of $1, 000.00 as funeral expenses.

Apportionment of damages

[49]. Since the plaintiff and two children are involved in this claim, I have to consider apportionment of damages.

[50]. In Kassam –v- Kampala Aarated Water Co (1965) 2 AER 875 damages were apportioned according to the children's different requirements and ages.

[51]. Usually, the greater part of the total sum is awarded to widow and to award comparatively small sums to the children themselves and a younger child is awarded more than an older child because the period of expected dependency is greater (Damages For Personal Injury and Death) 5th Ed. By David Kemps at page 64 – 65. Therefore, I adopt the same principle here.

[52]. The plaintiff claims interest. I award interest at the rate of 4% per annum from the date of the accident to the date of the judgment.

Cost

[53]. Plaintiff is also entitled to costs. This trial was heard in the High Court for 3 days and therefore I summarily assessed the cost in the sum of $3000.00

[54]. The summary of awards and costs are as follows:

1. General damages for pain and suffering $ 5000.00.
   
2. $2500.00 under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act. This amount has to be deducted from the award made under Compensation to Relatives act Cap 29.
   

100. $ 56250.00 under the Compensation to Relatives Act Cap 29.
     

4. Funeral expenses $ 1000.00
   
5. Interest on the award in (b) above at the rate of 4% per annum from 01.05.2002 to 11.11.2012.
   
6. Costs $ 3000.00
   
7. The award made under (c) is to be divided among the plaintiff and two children as follows:
   
   1. 50% of $56250.00 ($28125.00) to the plaintiff.
   2. 30% ($16875.00) for the 5 years old Child Marawa Batiyalo
   3. 20% ($11250.00) for the 9 years old child Sainiana Kiso Batiyalo
      
8. It is further ordered that the award granted to children shall be deposited in trust with the Fiji Public Trustee Corporation for the advancement of their education and welfare.
   

Pradeep Hettiarachchi
JUDGE