Nawalowalo v Max Construction Ltd [2012] FJHC 963; Civil Action 95.2009 (20 January 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. 95 of 2009

BETWEEN:

KELERA NINA VUSONILAGAKALI NAWALOWALO
of Meighunyah, Nadi, the Administratrix of the Estate of Amasi Komaiwiriwiri late of Meighunyah, Nadi.
Plaintiff

AND:

MAX CONSTRUCTION LIMITED
a limited liability company having its registered office at 7 Yasawa Street, Lautoka City.
Defendant

Before : Master Anare Tuilevuka
Appearances : Mr. D.S Naidu for the Plaintiff.
No appearance for the Defendant.

Date of Ruling : Friday 20 January 2012

RULING

BACKGROUND

[1]. On 9 June 2009, the plaintiff (“Ms. Nawalowalo”) filed a writ of summons and the statement of claim as administratrix of the estate of her late brother, Emasi Komaiwiriwiri Viriviri. She claims against Max Construction Limited (“MCL”). Viriviri died on 01 December 2007 from injuries he sustained from a fall more than a week earlier at an MCL-construction site in Nadi. He was employed by MCL as a general construction carpentry worker. Ms Nawalowalo brings this action for the benefit of the deceased’s estate under the Law Reform Miscellaneous Provisions Death and Interest Act (Cap 27) and under the Compensation to Relatives Act (Cap 29). Letters of administration were granted to Ms. Nawalowalo on 16 September 2008.

[2]. On 5 August 2009, default judgment was entered against MCL. And on 13 August 2009, Notice of Assessment of Damages was filed. An affidavit of service sworn by Deepeka Prasad on 17 August 2009 deposes that she personally served MCL at its registered office at 7 Yasawa Street, Lautoka on 13 August 2009.

THE ACCIDENT

[3]. On 19 November 2007 Viriviri was amongst MCL workers at a construction site at Meighunya, Nadi Back Road. They were constructing a building. Viriviri had finished measuring the rafters on top of the block wall. He was descending from the roof when he fell and landed on the concrete floor. WPC Kinisalote, the investigating officer, read from her Report that Viriviri fell from a height of 3.95 meters. He had a helmet and safety boots on but not a safety belt. The safety belt is a must when working at that height. There was no ladder provided either. An iron rod that was sticking out caught part of Viriviri’s garment as he was descending which then disturbed his balance and caused him to fall. Viriviri actually fell onto the concrete floor. WPC Kinisalote found no scaffolding at the worksite.

HOSPITALISATION

[4]. Viriviri was treated at Nadi Hospital after the accident and was later rushed to Lautoka Hospital. He was taken to Suva Hospital on 23 November 2007 for a CT scan. Upon his return from Suva, he was readmitted at Lautoka Hospital. He was discharged on 27 November 2007 and sent home. He died on 01 December 2007 at Nadi Hospital.

[5]. Ms. Nawalowalo visited Viriviri at the Nadi Hospital on the same day of the accident. Viriviri tried to make conversation with her at Nadi Hospital but was incoherent and did not make sense in speech. Later – at Lautoka Hospital, Viriviri appeared to not recognize her. At home, Viriviri had to be helped around to the bathroom.

HEALTH

[6]. Viriviri was a healthy man. He had no disease. He played sports. He was 29 years old and was educated up to Form 6 level. He started out as a volunteer worker and then worked for a little while at Jacks. He did some vocational courses at TPAF. In November 2007, shortly after the accident, Viriviri’s family received notification that Viriviri had passed his trade test. Copies of his TPAF certificates were exhibited in Court as well as his certificate of reference.

MEDICAL CAUSE OF DEATH

[7]. The medical cause of death was intra abdominal bleeding with mesenteric hematoma. Dr. Litia Tudravu performed a post-mortem on Viriviri on 03 December 2007. Dr. Tudravu’s report records the following:

Scalp and Skull

Normal

Cranial Cavity (note mouth, tongue, oesophagus, larynx, trachea, lungs and pleurae

Both Lungs show oedema and congestion

Pericardium, heart and blood vessels

Normal

Abdominal cavity (note stomach and contents, peritoneum, intestines and mesenteric glands, liver and gall bladder, pancreas, spleen, kidneys and ureters, bladder and urine, generative organs

Old and new blood and clots noted all over the abdominal cavity with a large (25 x 10cm) hematoma on the mesentery on right upper quadrant, small laceration on inferior surface of right lobe of liver.

Are all other organs healthy?

Yes

In my opinion the cause of death was:-

(a) Disease or condition directly leading to death

Intraabdominal bleed due to or as a consequence of large mesenteric hematoma

[8]. Dr. Tudravu said Viriviri did not die naturally. The injuries were secondary to a blunt trauma consistent with a fall on the abdomen. Viriviri would have endured extreme force against the abdomen to have suffered an injury of that gravity. His left forearm had a plaster. Dr. Tudravu said Viriviri had a fracture on the left forearm from the fall. She said the lung showed pulmonary oedema which is an occurrence of fluid accumulation in the lungs during the final stage of the dying process.

EARNINGS

[9]. Viriviri was a carpenter. His pay slip for 14 July 2007 shows that he was paid $105 .06 gross with a net of $97.15. He sometimes received more if he worked overtime. His pay slips were exhibited in Court. Viriviri possessed two Certificates of Attainment from the Training Productivity of Fiji (TPAF). The first was for Basic Drawing and Plan Reading and the second was for Site Set Out and Leveling. In November 2007, he passed the Trade Test in Carpentry Grade III from TPAF.

DEPENDENCY

[10]. Ms Nawalowalo works as a front office coordinator at Vomo Island. Viriviri was her younger brother. She had taken out probate over his estate. Viriviri was not married. Their father is alive. Their father was dependent on Viriviri. Viriviri lived with his family in Meighunyah where he died.

ASSESSMENT

[12]. The damages claimed by Ms. Nawalowalo are special damages in the sum of $4,644.00, Damages under the Law Reform (Miscellaneous Provisions)(Death and Interest Act) and under the Compensation to Relatives Act, interests and costs.

Special Damages

[13]. Special damages are monetary losses actually suffered up to the date of judgment and must be specifically pleaded and strictly proven[1]. In this case, Ms. Nawalowalo claims $4,644-00 in special damages made up of funeral expenses.

[14]. 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. Nawalowalo herself is a beneficiary of the Viriviri estate and is entitled to claim for funeral expenses. In Fiji, some courts have awarded damages for funeral expenses even in the absence of specific supporting evidence[2]. I follow the approach of Pathik J in Jona Moli and award $2,500 for funeral expenses only.

Damages under the Law Reform (Miscellaneous Provisions)(Death and Interest Act)

[15]. An award under the Law Reform (Miscellaneous Provision) (Death and Interests) Act is made for the benefit of the deceased’s estate based on lost years. Even if a plaintiff finds difficulty in establishing a claim based on dependency under the Compensation to Relatives Act, the Court may still award damages under the Law Reform (Miscellaneous Provision) (Death and Interests) Act[3]. And even if an award had been made under the Compensation to Relatives Act, that award is usually merged with any award made under the Law Reform Act[4].

[Loss of Expectation of Life]

[16]. In Fiji, the Courts have awarded damages for loss of expectation of life at $2,500[5]. I award the same in this case[6].

[Lost Years]

[17]. A claim for lost years accrues to the estate of the deceased under the Law Reform (Miscellaneous Provisions) (Death & Interest) Act[7]. Master Udit summarized the conventional approach for assessing damages for lost years in Prasad v Hakim as follows:

[33]. The conventional approach to the assessment of damages for the lost years is thus arrived at as follows:-

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

(b). from the net earnings, a deduction must be made of the deceased's personal earnings.

(c). the sum in para (b) is then multiplied by the actual number of lost years, that too is to be ascertained by the Court taking into account the contingencies and vicissitudes of life.

[18]. From the evidence of Ms. Nawalowalo and from the pay slips tendered in Court, I take the deceased's net earnings at $110-00 (one hundred and ten dollars) per week (see paragraph 16 above). At that rate, his net annual income would be $5,720-00 (five thousand seven hundred and twenty dollars). I accept that Viriviri had attained some trade certificates from TPAF. There is no real evidence before me as to what his career progression and related wage increase would have been like if he had lived (cf. Maka v Broadbridge [2003] FJCA 31; ABU0063.2001S (30 May 2003), so I will not speculate any further on this but will take $5,720-00 as his net wages per annum. Virviri was twenty nine years of age when he died and in my view, had a working life expectancy of at least twenty six years – if 55 years is considered to be the retirement age. The courts however rarely fix a multiplier above 18 and I agree that 17 would be a suitable multiplier in this case[8].

Calculation Table for Lost Years

(i)	Nett per week.	$110		=	$110-00 (one hundred and ten dollars)
(ii)	(deduction for deceased's personal earnings) @ 30% weekly pay	$110 x 30%		=	$33-00 (thirty three dollars)
(iii)	Balance left for estate for lost years	$110 - $33		=	$77 x 52 x 16 = $64,064 - 00
	TOTAL				$64,064 - 00

Damages under the Compensation to Relatives Act (Cap 29)

[19]. I make no award under this Act (see paragraph 15 above).

ORDERS

(i) I make the following awards in favour of the plaintiff against the defendant:

• (a) $ 2,500.00 in special damages.
• (b) $ 2,500.00 for loss of expectation of life (which I add to rather than subtract from the award for lost years)
• (c) $64,064.00 for lost years pursuant to the Law Reform (Miscellaneous Provision)(Death & Interests) Act.

TOTAL $69,064.00

(ii) I also award costs and interest as follows:

• (d) 7% p.a interest on $69,064.00 under section 3 of the Law Reform (Miscellaneous Provision)(Death & Interests) Act from 09 June 2009 to 20 January 2012.
  
• (e) 4% post judgement interest on the above sum under the Imperial Judgements Act 1838 (UK) and section 22 of the High Court Act.
  
• (f) costs which I summarily assess at $1,600-00.
  

.................................
Anare Tuilevuka
Master

At Lautoka.
20 January 2012.

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^[1] (see Prasad v Hakim citing Paff -v- Speed [1961] HCA 14; [1961] HCA 14; [1961] 105 CLR 549 at 558-559 per Fullagar J).
^[2] In Jona Moli -v- Dr Frances Bingwor & Others Suva High Court Civil Action No. HBC 335/1998, Mr. Justice Pathik awarded $2,200 for funeral expenses in lieu of the full $3,500 claimed:-

"We are all familiar with the customs of the various races in Fiji and in the context of funeral there are certain expectations and obligations which have to be fulfilled. It is only right that reasonable expenses ought to be allowed without requiring the plaintiff to produce receipts and proof of each items of expenditure as is required for the purposes of proving special damages."

^[3] (see Sunil Chandra –v- Ram Narain Civil Appeal No. 134 of 1990; Hari Pratap -v- Attorney General of Fiji and Anor Suva High Court Civil Action No. HBC 95/1986; Somari v. Attorney General Civil Appeal No ABU 0026/1980; Daya Ram -v- Peni Cara and Others (Civil Appeal No.50 of 1992))
^[4] see Navunisaravi v Kumar (supra) citing Davies & Anor v. Powell Duffryn Associated Collieries Ltd [1942] AC 601.

^[5] (see Prasad v Hakim (supra); Subamma -v- Chandar Court of Appeal Civil Appeal No. ABU 0056/83; Hari Pratap -v- Attorney General Court of Appeal, Civil Appeal No. ABU 0014/1992 ($2,500-00) and Alusio Daino -v- Attorney General, Suva High Court Civil Action No. HBC 0515/1996,($2,500-00).

^[6] LORD MORRIS of BORTH-Y-GEST in Yorkshire Electricity Board v Naylor (1967) 2 All E.R. at p.6 said as follows:

"Though it is said that his death was instantaneous, the appellants have not sought to dispute that a valid cause of action vested in him. By reason of the provisions of the Law Reform (Miscellaneous Provisions) Act, 1934, that cause of action survived for the benefit of his estate. The judge had to decide what sum of damages should reasonably be awarded in respect of the deceased's cause of action. He lost what is usually called his expectation of life. The loss was something personal to himself. No one knows what life would in fact have held for him had he lived. No one will ever know. No one could ever know. The chances, the changes and the vicissitudes of the future are in the future. He will not know them. No surmise can with any measure of confidence be made whether by his untimely death he was denied happiness or was spared unhappiness. The task of "equating incommensurables" is one that can never be satisfactorily achieved."

(see also Subamma v Chandar (FCA Vol 82 p573), Fero Tabakisuva v Sant Kumar & Eroni TokailagI (C.A. 465/80) and Daya Ram v Peni Cara & Others (Civ. App. 59/82 F.C.A. Vol 83 p50) the sum of $1250 was awarded. In Jai Narayan v The Attorney-General C.A. 611/93 and Paras Ram v Ivamere Hotchin & Ors. (C.A. 6/91 [LABASA]) and Hari Pratap v The Attorney-General of Fiji and Anor (Civ. App. 14/92 FCA) there was an award of $2500.00; in Pratap (supra) the Fiji Court of Appeal discussed this aspect at length and said that the "conventional sum should be $2500".

^[7] As Byrne J observed in Lotherington-Woloszyn v Savou [1995] FJHC 131; HBC 0489j.93S (31 July 1995), a claim:

.......by the estate under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act commonly known as the claim for "the lost years". This head of the claim was confirmed as being valid in the House of Lords in Gammell v. Wilson & Others (1981) 1 ALL E.R. 578. This decision was followed by the Court of Appeal in Fiji in Daya Ram v. Peni Cara & Others (Fiji Court of Appeal No. 50 of 1982: judgment March 1983) where the Court said:

"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.

^[8] As Byrne J noted in Lotherington-Woloszyn v Savou (supra):

It is unusual for the multiplier to be more than 18. Counsel for the Plaintiff helpfully gave me a list of multipliers awarded in various cases and submits that in this case the appropriate multiplier is 16. On the other hand Mr. Krishna submits that the multiplier should be 8. I consider that number far too low. Interestingly in Cole v. Crown Poultry Packers Ltd. where the deceased was a skilled electrician aged 38 at the time of his death the trial judge fixed the multiplier at 16 and this was upheld on appeal. There are numerous other cases referred to in Kemp & Kemp Volume 3 at p.63021. In this case I consider the appropriate multiplier to be 16.