Devi v Kishore and Abhay Transport Company Ltd [2013] FJHC 726; HBC306.2010 (24 January 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 306 of 2010

BETWEEN:

RANJINA DEVI
of Coqela, Labasa, Fiji Domestic Duties as Administratrix
in the Estate of Satish Sharma late of Nausori, Fiji, Driver, Deceased, Intestate.
PLAINTIFF

AND:

KISHORE AND ABHAY TRANSPORT COMPANY LTD
a limited liability company having its registered office at
Lot 17 Batirerege Road, Waila 3A, Davuilevu Housing, Nausori.
1ST DEFENDANT

AND:

FLETCHER BUILDING (FIJI) LTD
a limited liability company having its registered office at
Lot 1 Wailada Industrial Estate, Lami.
2ND DEFENDANT

BEFORE: Master Deepthi Amaratunga
COUNSEL : Mr. R. P. Singh for the Plaintiff
No Appearance for the Defendants

Date of Hearing : 15th January, 2013
Date of Decision : 24th January, 2013

DECISION

1. INTRODUCTION
   

1. The Plaintiff had obtained default judgment against 1st and or 2nd Defendants. The issue of liability is not to be determined in this decision as default judgment was entered against the defendants making them liable to compensate the Plaintiff, jointly and or severally. The assessment of damages is to be determined and the Plaintiff gave the evidence in order to assess the quantum of damages. The deceased was a driver and at the time of death he was 27 year of age.
   

2. ASSESSMENT OF DAMAGES
   

2. The Plaintiff who was the wife of the deceased gave evidence at the hearing and stated that the deceased was 27 years of age at the time of the accident. He was a driver of a lorry that was transporting cement when this tragic accident happened. The birth certificate and the death certificate of her late husband was marked at the hearing and this proves the age at the time of his death and her marriage to the deceased. They also had one child at the time of death. According to the evidence the deceased had no health issues and he had maintained the family from his occupation as a driver.
   
3. He was leading an ordinary happy family life and as occupation he was working as a driver and earned a net income of $132.00 per week after deduction for FNPF. The wife of the deceased produced a wages slip to prove the said sum.
   
4. The widow said that she was not employed at the time of the accident and she and child were maintained by her husband and due to untimely demise they had become a burden to her parents.
   
5. The Plaintiff, who is the widow in her evidence stated that she had to spent FJD3,500 for the funeral expenses. She also stated that she did not get any support from the employer of the deceased after the demise of her husband.
   
6. The deceased was 27 of age at the time of death and under normal circumstances he would have gainfully employed for at least another 30 years as a driver. Considering the contingencies of life the uncertainty of the employment a suitable multiplier has to be determined for the assessment of the damages.
   
7. In Attorney General of Fiji Vs Brondbridge [2005] FJSC4 decided on 8th April, 2005 which exhaustively dealt with the issue of calculating of the loss of income held:
   

"40.Some of the cases in which multiplier of about 15 had been used were said to bear some similarity to the present case. However, a cursory appraisal of a number of those cases suggested that they all had their own particular features and that no general principle could be drawn from them." (emphasis added)

Commenting further on this issue after analyzing number of British authorities on the subject further held

"47. Ordinarily, the multiplier will be calculated on the basis of the likely duration of the plaintiff's disability. If it is clear that plaintiff will not work again, that will be the rest of his or her working life. The starting point is the date of the trial."(emphasis added)

8. The principle laid down in the said Fiji Supreme Court decision is that multiplier has to be deduced from the number of lost years from the employment due to the negligent act of the Defendant. There is no exact or arithmetic method to arrive at that, but the starting point is from the time of the trial. Considering the age of the deceased he could have easily and gainfully employed as a driver for another 30 years. This is considering the Life expectancy of a male of Indian origin in Fiji. To consider a suitable multiplier the court has to consider the contingencies of the life, uncertainty of the employment and the economic and social uncertainty for such a long duration.
   
9. In Page v Sheerness Steel Company Ltd [1998] UKHL 27; [1998] 3 WLR 329 Lord Lloyd held
   

'It is of the nature of a lump sum payment that it may, in respect of future pecuniary loss, prove to be either too little or too much. So far as the multiplier is concerned, the plaintiff may die the next day, or he may live beyond his normal expectation of life. So far as the multiplicand is concerned, the cost of future care may exceed everyone's best estimate. Or a new cure of less expensive form of the award is to put the plaintiff in the same position, financially, as if he had not been injured. The sum should be calculated as accurately as possible making just allowance, where this is appropriate, for contingencies. But once the calculation is done, there is no justification for imposing and artificial cap on the multiplier. There is room for judicial scaling down. Current awards in the most serious cases may seem high. The present appeals may be taken as examples. But there is no more reason to reduce the awards, if properly calculated, because they seem high than there is to increase the awards because the injuries are very severe.

The approach to the basic calculation of the lump sum has been explained in many cases, but never better than by Stephen J. in the High Court of Australia in Todorovic v Waller [1981] 37 A.L.R at 498...' (emphasis added)

10. It is safe to assume that there is no such 'cap' or artificial maximum value, but the court has to scale down considering the contingencies of life. At this moment I would like to quote a passage of Stephen J in Todorovic v Walller (supra) which was commented in Page v Sheerness Steel Company Ltd [1998] UKHL 27; [1998] 3 WLR 329 by Lord Lloyd . In Todorovic v Waller [1981] 37 A.L.R at 498 it was held
    

"The law entitles these plaintiffs to compensation for their losses and outgoings. In Barrell (55 ALJR at 265; 34 ALR at 175-6) I cited those authorities which, more than 100 years ago, established and have ever since affirmed the cardinal principle of such compensation; that a plaintiff is entitles to such compensation as will, as nearly as may be make good the financial loss which he has suffered and will probably relevant to damages have been found it is then for the courts to give effect to that principle in their assessment of damages for economic loss. While there may be no one exclusive method of assessment appropriate to every circumstance, there is but one criterion by which the adequacy of any particular method may be judged; it is whether or not the result of the assessment fairly makes good the financial loss incurred."

11. The cardinal principle is clear and that is to compensate the Plaintiff as far as possible to the state prior to the negligent act or the accident. The courts in England and also the Supreme Court of Fiji held in no uncertain way that when deciding multiplier the court has to consider the number of years the injured was employable and in this case the said number is 30. The court has to 'scale down' the said number considering the uncertainties that prevail in job market, economy and other contingencies. Considering, all the contingencies I will consider the proper multiplier as 20. I do not think that any value less than 20 would adequately compensate the Plaintiff considering the circumstances of the case.
    
12. The Plaintiff in this case as the administrator has to prove that the Deceased's wife and son was supported by the deceased. All they have to establish was reasonable expectation of prospective income from continuance of the life of her husband, which was done through her evidence.
    
13. The weekly wages for the deceased was $132.00 per week and the gross future loss is 126,720 (132x4x12x20) not making any concession for incremental wages, since no evidence of such was presented to me. Loss of future earnings has to consider contingencies as well and for that I allow 30,000 and the net future loss is FJ$96,720.
    
14. The Plaintiff is also granted a cost of this action summarily assessed at $2,000 and also grant an interest of 6% from the date of judgment till the full sum settled.
    
15. In the final analysis, the total award should be made up as follows:-
    

PARTICULARS	TOTAL ($)
Special Damages	3,500
Loss of earning for lost years	FJ$96,720
Interest at 6% on Special damages from date of death (1/11/07 to 1/11/12)	$1,050
TOTAL AWARD	$101,270

100. FINAL ORDER
     

1. The Defendants are ordered to pay the Plaintiff jointly and or severally a sum of $101,270.
   
2. Legal interest for the above sum from the date of judgment till the final settlement of the full sum awarded.
   

100. Cost of this action is assessed summarily at $2,000.
     

Dated at Suva this 24th day of January, 2013.

.................................................
Master Deepthi Amaratunga
High Court, Suva