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Swann v Peng [2016] FJHC 851; Civil Action 109.2013 (23 September 2016)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 109 of 2013

BETWEEN
SHARON CECELIA SWANN
First Plaintiff


SHUTAO SUN
Second Plaintiff


ANDREW REGINALD SWANN
Third Plaintiff


AND
JIANG PENG
First Defendant


YONGSHAN STORE COMPANY LIMITED
Second Defendant


AND
SUN INSURANCE COMPANY LIMITED
Third Party


CONSOLIDATED WITH

Civil Action No. 145 of 2013


BETWEEN


LOUISA THERESA FONG as the Administrator of the ESTATE OF ANDREA

ANTOINETTE SWANN

Plaintiff


AND


JIANG PENG
First Defendant


YONGSHAN STORE COMPANY LIMITED
Second Defendant


AND

SUN INSURANCE COMPANY LIMITED
Third Party


Coram : The Hon. Mr Justice David Alfred
Counsel : Mr Diven Prasad for all the Plaintiffs in both Actions
Mr R K Naidu for both Defendants in both Actions
Mr T Tuitoga for the Third Party in both Actions


Dates of Hearing : 29, 30 and 31 August, 2016
Date of Judgment : 23 September 2016


JUDGMENT


  1. These consolidated running down Actions arose out of an accident on 23 December 2012 on Laucala Road, Suva. In the first Action, the Statement of Claim alleges that the accident was caused by the negligence of the 1st Defendant as the driver of motor vehicle No. YOS 666 (Defendants’ vehicle) the registered owner of which was the 2nd Defendant in colliding into the parked vehicle No. EF 905 (Plaintiffs’ vehicle).
  2. Among the Particulars of Negligence alleged against (the 1st Defendant) are:
  3. The Plaintiffs state they will rely on the doctrine of “res ipsa loquitor” against the 1st Defendant.
  4. They will also rely on the Land Transport (Traffic) Regulations 2000 and the Road Code.
  5. It is also stated that the 1st Plaintiff was the driver of the Plaintiffs vehicle and that the 2nd and 3rd Plaintiffs were passengers therein. The final passenger in the vehicle was fatally injured.
  6. The Plaintiffs suffered personal injuries, loss and damage as set out in the Statement of Claim.
  7. The Defendants in their Statement of Defence make the following admissions:
  8. Amongst the Particulars of Negligence/contributory negligence alleged by the Defendants against:
  9. The Defendants also state they will rely on the doctrines of res ipsa loquitor and volenti non fit injuria.
  10. They also allege the accident was caused by an unknown third party who suddenly turned his vehicle towards the right causing the 1st Defendant to swerve to his left and to collide into the Plaintiffs’ vehicle.
  11. Finally, the Defendants contend that as result of all the aforesaid matters, the accident was inevitable and unavoidable and ask for the Plaintiffs’ claims to be dismissed.
  12. The Plaintiffs in their Reply to the Defence join issue with the Defendants’ Defence except as so far as it consists of admissions.
  13. The Defendants in their Statement of Claim against the Third Party essentially say they are entitled to be indemnified by it against the Plaintiffs’ claims on the ground that the 2nd Defendant held a Third Party Insurance Policy over the Defendants’ vehicle which was valid and in force at the time of the said accident.
  14. The Third Party in its Defence while denying the allegations in the Defendants’ Statement of Claim state it has sought a declaration that it is entitled to avoid liability to provide indemnity to the Defendants in respect of the Plaintiffs’ claims on the grounds the 1st Defendant was under the influence of alcohol, and a declaration that it is not liable to satisfy any judgment that may be entered against the Defendants arising out of the accident.
  15. In the second Action the Plaintiff is the Administratrix of the estate of the passenger in the Plaintiffs vehicle who was killed in the accident. The Particulars of Negligence, against the 1st Defendant, and the particulars of negligence/contributory negligence against the Plaintiff, are similar to those contained in the respective pleadings in the first Action. The Plaintiff here is claiming damages for loss of life, compensation for relatives and special damages.
  16. The Minutes of the Pre-Trial Conference for the 1st action held on 12 May 2014 and attended by Counsel for the Plaintiff, Counsel for the Defendants and Counsel for the Third Party include the following:
    1. Amongst the Agreed Facts
      1. The 1st Plaintiff, was the driver of the Plaintiffs’ vehicle.
      2. The 2nd and 3rd Plaintiffs were passengers in the aforesaid vehicle.
      3. The 1st Defendant was authorised by the 2nd Defendant to drive the Defendants’ vehicle.
      4. The 2nd Defendant was the registered owner of the abovementioned vehicle at the material time.
      5. The Third Party issued a Third Party Insurance Policy for the Defendants’ vehicle for the period from 26 January 2012 to 26 January 2013.
        1. On 23 December 2012, the 1st Defendant was driving the (Defendants’) vehicle along Laucala Bay Road towards Flagstaff when it collided with the (Plaintiffs’) vehicle.
        2. Andrea Antoinette Swann was a passenger in the (Plaintiffs’) vehicle and died as a result of the collision.
    2. Amongst the Issues to be determined between the Plaintiff and the Defendants
      1. Whether the collision was caused by the negligence of the 1st Defendant.

2. Was the collision caused solely or contributed to by any negligence on

the part of the 1st Plaintiff.

  1. Were the 2nd and 3rd Plaintiffs’ injuries caused solely and/or contributed to by any negligence on their part.

4. Did the 2nd and 3rd Plaintiffs voluntarily accept the risk of injury.

5. Did the 1st Plaintiff park the vehicle on the road so that it obstructed the

road and became a danger.
6. Was the accident inevitable and unavoidable.
7. Did the 1st Plaintiff impliedly consent to the risk of injury by parking the

vehicle.


  1. Issues to be determined between the Defendants and the Third Party
    1. Was the 1st Defendant driving the vehicle under the influence of liquour so as to exclude the Third Party from any liability under the policy.
    2. Should the Third Party indemnify the Defendants against any judgment entered against them in favour of the Plaintiff.
  1. The Minutes of the Pre-Trial Conference for the 2nd Action, hold on 12 May 2014 and attended by Counsel for the Plaintiffs, Counsel for the Defendants and Counsel for the Third Party record the following:
    1. Amongst the Agreed Facts
      1. The Plaintiff is the mother of the deceased, Andrea Antonnette Swann. (Andrea).
      2. Andrea was a passenger in vehicle No EF 905 and died as a result of the collision.
    2. Amongst the Issues to be determined between the Plaintiff and the Defendants
      1. Was Andrea’s fatal injuries caused or contributed to by any negligence on her part.
      2. Whether the Plaintiff, her husband and her son were dependents of Andrea.
    1. Issues to be determined between the Defendants and the Third Party
      1. Was the 1st Defendant driving the vehicle under the influence of intoxicating liquor so as to exclude the Third Party from any liability under the conditions of the policy.
    1. Should the Third Party indemnify the Defendants against any judgment in favour of the Plaintiff.
  2. The Hearing commenced with the Plaintiffs calling their first witness, Dr Vueta Vau Scott Buadromo (PW1).
  3. The Counsel for the 3rd Party objected to PW1 giving evidence as he had not received a copy of PW1’s medical report. The Counsel for the Defendants did not object. I therefore ruled that PW1 could tender his medical report as evidence.
  4. PW1 said he is a general surgeon in Colonial War Memorial Hospital (CWMH). He had examined the 1st Plaintiff (the driver), on 26 August 2016 and she had a rateable impairment and permanent disability. He tendered her medical report as Exhibit P1. He said Dr Vadei is now in New Zealand and his medical report is now in the CWMH records. He tendered Dr Vadei’s report as Exhibit P2.
  5. At this juncture, the Counsel for the 3rd party stated he was objecting to all medical reports dated 26 August 2016 for all the Plaintiffs.
  6. PW1 said he examined the 2nd Plaintiff at the CWMH on 25 August 2016. He was the passenger in the front next to the driver and had been thrown out of the vehicle. He had suffered a fracture of the left clavicle, abrasions on his left knee and a ligament injury.
  7. Using the American Medical Association (AMA) guide PW1 gave him a 15% impairment. His report was tendered as Exhibit P3. PW1 had referred to Dr Vadei’s report in the CWMH records and tendered it as Exhibit P4.
  8. PW1 said he examined the 3rd Plaintiff on 26 August 2016. He was the passenger in the rear of the car. PW1 gave him a 2% impairment and tendered his medical report as Exhibit P5.
  9. PW1 was now cross examined by Counsel for the Defendants. He said he got information out of the 3 Plaintiffs. The 3rd Plaintiff’s injury had healed.
  10. Under cross examination by Counsel for the 3rd Party, PW1 said the 1st Plaintiff’s only rateable impairment is her back injury. She had no other injuries rated. With regard to the 3rd Plaintiff, his injury had healed completely.
  11. The Plaintiffs’ next witness was Sunia Biu (PW2). He said he recalled the accident in December 2012. He gave a police statement. He actually saw the accident. There was a car parked at the front gate of Yat Sen School. There was enough space for other vehicles to pass. The road was clear and there was no other vehicle in front of the vehicle which collided into the car. The car was not parked at a bus stop. The vehicle that collided into the parked car caused it to go forward 10-15 metres. He tendered his police statement as Exhibit P7. The vehicle that caused the accident was No YOS 666. The parked vehicle did not obstruct other vehicles.
  12. Under cross examination by Counsel for the Defendants, PW2 said there was no vehicle in front of vehicle No. YOS 666.
  13. When cross-examined by counsel for the 3rd party, PW2 said one of the persons in the car is a teacher in Yat Sen School. He heard tyres screeching and he saw the vehicle still coming down. There was no vehicle in front of it.
  14. The next witness for the Plaintiffs was Laisiasa Boginivalu (PW3). He is a police constable. He had given a statement and an affidavit. There was no no-parking sign on the road. There was no other vehicle in front of that vehicle.
  15. Under cross-examination by Counsel for the Defendants, PW3 said he had given a statement to Sun Insurance Co Ltd. regarding the accident. The road was wide enough for a bus to go. There was no other vehicle in front of vehicle No. YOS 666. There was no sign of a no-parking zone there.
  16. When cross-examined by Counsel for the 3rd Party, PW3 said he heard the sound of screeching tyres. The driver was trying to avoid the island in the middle of the road.
  17. The next witness was Ms Milika Mocelutu (PW4). She gave a police statement. There was no vehicle in front of vehicle No YOS 666. There was no no-parking sign on the road.
  18. When cross-examined by Counsel for the Defendants, she said she saw the vehicle coming very fast and heard a screeching sound.
  19. Under cross-examination by Counsel for the Third Party, PW4 said she came close to the vehicle and saw those inside had red faces.
  20. The Plaintiffs next called WPC Laisa Beci Yalimaiwai (PW5). She attended at the scene and drew a sketch plan. Thereon she drew the exact position of the vehicles. The brake mark was caused by the Plaintiffs vehicle after the impact. There were broken glass pieces from the vehicles. The Plaintiffs’ vehicle was damaged at the rear. There were 2 persons at the scene and she took them in as witnesses. She tendered the sketch plan as Exhibit P11. The no-parking sign is beyond the area of the sketch.
  21. When cross-examined by Counsel for the Defendants, PW5 said she did her own investigation of the alleged point of impact.
  22. Under cross-examination by Counsel for the 3rd party, PW5 said she could not recall whether the place of impact was within the bus bay.
  23. The next witness was Corporal Jekope Rasaubale (PW6). He tendered his police statement as Exhibit P12 as both Counsel for the Defendants and the 3rd party had no objection.
  24. The 1st Plaintiff, Sharon Cecelia Swann (PW7) now gave evidence. She had parked her car next to the curb. Even a bus could pass by. She was admitted to CWMH for 2 days after the accident. She tendered her police report as Exhibit P13. She suffered injuries to her chest and back. Today she feels a lot of pain

in her lower back. She tendered photographs of her injuries to her chest and back. She tendered photographs of her injuries to which both other counsel had no objection. She cannot drive at all now because of a fear of driving.


  1. All 3 Counsel agreed that her medical expenses came up to $128.20.
  2. When cross-examined by Counsel for the Defendants, PW7 said she did not park her car in a no-parking area. There was no vehicle in front of the Defendants’ vehicle.
  3. Under cross-examination by Counsel for the 3rd party, PW7 said she could not recall if there was a no-parking sign.
  4. The 2nd Plaintiff now gave evidence. He is Shutao Sun (PW8). He was employed in Yat Sen Primary School as a teacher. There was no sign to say no parking or no stopping. There was no other vehicle going past at that time. He tendered photographs of his injuries, as Exhibit P19, with the agreement of both other Counsel. He was injured at his knee, shoulder, arm, and left leg. He could not now take part in sports.
  5. When cross-examined by Counsel for the Defendants, PW8 said he was sure there was no no-parking sign.
  6. The next witness was Andrew Reginald Swann, the 3rd Plaintiff (PW9). He was a passenger in the car driven by the 1st Plaintiff. He was seated behind beside his sister, Andrea. A vehicle collided into their stationary car. There was no other car going past him and no car turning right. Both other Counsel had no objection to photographs of his injuries being tendered as Exhibit P20. Andrea was a talented girl working for their mother as an office girl and Andrea gave him $30 per week. He is now walking normally.
  7. When cross-examined by Counsel for the Defendants, he said he was now working in a small private construction company and is paid $80 per week.
  8. Under cross-examination by Counsel for the 3rd Party, PW9 said Andrea did not go to school but worked for their mother because she wanted to help her. He was paid $20 per day.
  9. The final witness was Mrs Louisa Theresa Fong (1st Plaintiff in the 2nd action) (PW10) who was the mother of Andrea. Andrea was working for her and was paid wages of $180 per week. She had no records because they were destroyed by Cyclone Winston. Andrea supported the family by giving $80 per week.
  10. By consent of both other Counsel, the funeral expenses were agreed at $896.52.
  11. When cross examined by Counsel for the Defendants, PW10 said her husband is an accountant and they have been separated for more than 20 years. She had no records of income generated by Andrea. PW10 said she was not running the business any more.
  12. Under cross-examination by Counsel for the 3rd Party, PW10 said the business closed down in January 2015. Andrea was 15 when she was in Form 3 and then left school.
  13. With this the Plaintiffs closed their case in both actions.
  14. On the next day the Defendants opened their case. Their 1st witness was Jiang Peng the 1st Defendant (DW1). He was the driver of the vehicle which collided with the Plaintiffs’ vehicle. There was a car in front of him. When he turned he bumped into the Plaintiffs’ car which was parked in front of Yat Sen School in front of the bus stop. A car in front of him turned right and he did not see the car parked there and bumped into it. He usually travelled along that road and was familiar with it. He marked on the sketch where there was a no parking sign

on the left side of the road. He did not make any attempt to avoid the accident. He did not know the car was parked there. When the other car turned right he had no time to stop.


  1. Sun (the 3rd party) issued a Third Party Insurance Policy for vehicle No. YOS 666.

He produced the policy which was valid at the time of the accident as Exhibit D1. After the accident, Sun refused to honour the policy. The letter from Sun’s lawyers was produced as Exhibit D3.


  1. DW1 said he did not take any liquor that day. He is facing charges in the Magistrates Court. If the Court awards damages to the Plaintiffs, he asks that the Court order Sun to pay them under the Third Party Policy.
    1. He was now cross-examined by the Plaintiffs’ Counsel. DW1 said he speaks a little bit of English. He did not remember what he said in his police statement. There was no interpreter. He said the 3rd version was true i.e the car turned right and he knocked into the Plaintiffs’ car. He drives along that road 5 times a week. There is a no-parking sign. He did not lose control. He was not driving fast.
    2. Under cross-examination by Counsel for the 3rd party he said he was not intoxicated. He did not say he was drinking. There was a space between the Plaintiffs’ car and the middle of the road and another vehicle can pass. The vehicle in front could pass and turn right. There was no alcohol smell in his car. He did not drink beer on that day. He had time to apply brakes and applied brakes.
    3. With that the Defendants closed their case. Their Counsel amended para 10 of their Defence with both other Counsel not objecting.
    4. The 3rd Party now opened its case calling its sole witness, Rupeni Lagilagi (TW1). He said the no-parking sign is on the sketch plan and has been there for long. All 3 Counsel agree there was a no-parking sign at x on the police sketch plan.
    5. Under cross-examination by Counsel for the Plaintiffs, TW1 said under the Land Transport Regulations 2012, the sign permits cars to stop and let passengers off.
    6. With that the 3rd party closed its case.
    7. Counsel for the Plaintiffs now submitted. The Plaintiffs witnesses all said there was no other vehicle in front of the Defendants’ vehicle and there was enough space to go past the parked vehicle. The 1st Plaintiff said she parked the car to drop off the 2nd Plaintiff who was getting out of the car which was parked at the road edge. Counsel concluded by saying the 1st Defendant is 100% liable and there was no contributory negligence on the part of the 1st Plaintiff.
    8. Counsel for the Defendants then submitted. He said there was some evidence of negligence on the part of the 1st Plaintiff in parking her car at the side of the road in a no-parking zone. The accident was caused by another vehicle. The brake marks were made by the Defendants’ vehicle and not by the Plaintiffs’. The sound of screeching tyres suggest the application of brakes by the Defendant. He said the 1st Plaintiff was 10-15% contributory negligent, while the passengers were entitled to succeed on a 100% basis, as there was no contributory negligence on their part.
    9. Counsel suggested the following figures for damages:
      • - 1st Plaintiff: $7-10,000 for pain and suffering and loss of amenities.
      • - 2nd Plaintiff: $10-12,000 for pain and suffering and loss of amenities.
      • - 3rd Plaintiff: $5,000 for pain and suffering and loss of amenities.
      • - Re: Andrea: It was not proved that her mother and brother were dependent on the deceased. There was no proof of the earnings of Andrea. It was not plausible that an employer can be dependent on an employee. There was no evidence that the mother was dependent on Andrea and no evidence of the mother’s ill health.
    10. Counsel for the 3rd party said he would adopt the arguments of Counsel for the Defendants. He submitted that the damages should be as follows:
      • - 1st Plaintiff: General damages: $10,000.00
      • - 2nd Plaintiff: General damages: $15,000.00
      • - 3rd Plaintiff: General damages: $ 5,000.00
      • - Andrea’s Estate: For loss of expectation of life: $ 2,500.00
      • - For special damages: $ 896.52
      • - For the lost years: 8 years at $100 per week: totaling $41,600.00
      • - Interest at 6% p.a on the general damages, at 3% p.a on the special damages and at 4% p.a on the judgment sum post judgment to realisation.
    11. At the conclusion of the hearing I informed I would take time for consideration. Having done so, I now proceed to deliver my judgment which will be in 2 parts viz:
      • (A) Liability
      • (B) Damages

The consolidated actions arise from a collision involving two vehicles. The first was driven by the 1st Plaintiff in which the 2nd and 3rd Plaintiffs and Andrea were passengers. It was parked at the material time, meaning it was stationary, when it was collided into from the rear by the Defendants’ vehicle driven by the 1st Defendant. As a result of the collision the Plaintiffs were injured and Andrea lost her life.


The 2 pivotal issues here are:

(1) Whether the Plaintiffs’ vehicle was lawfully parked at the scene.
(2) Whether the collision was caused solely by the negligence of the 1st Defendant or contributed to by the negligence of the 1st Plaintiff.
  1. I shall consider (1) first.
  2. I accept from the evidence that the road sign at the scene of the accident was a circular one containing a slash within a circle.
  3. According to the Land Transport (Traffic) Regulations 2000, Regulation 69, road signs are erected to convey to a driver of a vehicle the message associated with

the appropriate sign. The requirements to be complied with where there is a No Parking sign is that the driver of a vehicle may stop the vehicle he or she is driving in the space relating to the sign so long as is reasonably necessary to set down or take up passengers or goods, and not otherwise.


  1. Here I am satisfied by the undisputed evidence that the 1st Plaintiff had stopped the Plaintiffs’ vehicle solely to let down the 2nd Plaintiff at the school where he was a teacher as stated in her police statement, Exhibit P13.
  2. I therefore make the following findings of fact based on my observation of the demeanour of the witnesses on all sides, the totality of the evidence and the law:
    1. The Plaintiffs’ vehicle was lawfully parked at the scene as the driver was seated therein and had stopped solely to let the front passenger out after which she would drive off.
    2. There was no vehicle in front of the Defendants’ vehicle as alleged by the 1st Defendant. Even if there had been one, it was allegedly turning right thus giving the 1st Defendant a clear passage to proceed on safely as that vehicle had already done.
    3. There was no obstruction caused by the Plaintiffs’ parked car and it was not a source of danger.
    4. There was ample space for other vehicles to pass safely to the right of the Plaintiffs’ vehicle.
    5. The collision was caused solely and exclusively by the negligence of the 1st Defendant in driving the Defendants’ vehicle at a speed which was excessive and in a manner which was dangerous in the circumstances as the sound of screeching brakes and the force of impact will bear testimony.
    6. In these circumstances, there was no contributory negligence at all by the 1st Plaintiff, not even of the order of 10-15% suggested by the Counsel for the Defendants and the 3rd party.
  3. In the result I find and I so hold that the collision occurred solely due to the negligence of the 1st Defendant as the driver of the 2nd Defendant’s vehicle and consequently all the Plaintiffs are entitled to recover, on a 100% basis, damages from the 1st and 2nd Defendants for all their claims that they succeed in proving to this court.
  4. I therefore enter judgment for the Plaintiffs in both actions against the First and Second Defendants and shall now proceed to consider the damages.

(B) Damages

The damages that I am going to award are based on the evidence laid before this Court, both documentary and oral, and the authorities cited by the Counsel on both sides. I shall do so in the first action followed by the second.


(1) Civil Action No. 109 of 2013

1st Plaintiff


  1. Looking at her Counsel’s written submission at page 3 and the range of alleged injuries and permanent incapacity stated, I was wondering whether Counsel was referring to the 1st Plaintiff or to someone else. This is because the actual injuries she suffered as stated in her medical reports Exhibits P1 and P2 are a far cry from what are alleged.
  2. The first medical report only states that she suffered soft tissue injuries across

her chest, and a heamatoma in the left flank. Chest x-rays showed clear lung fields with no fractures. To my mind, this shows there was no respiratory distress.


  1. The second medical report dated a few days before the hearing states she still experiences chronic back pain that affects her ability to walk long distances and to sit at her work place throughout the day.
  2. I would have thought that it would not require anything more than common sense for this Plaintiff to only walk short distances and rest before resuming her

walk and to get up from her chair and walk about her office at regular intervals which is something that even normal healthy individuals are advised to do.


  1. I have perused the case, cited by Plaintiffs’ Counsel, of Virend Chand and Amal Jeet Singh, Civil Action No. HBC 0363 J. 89S a decision of Pathik J delivered on 20 July 1994. Here the Plaintiff suffered lacerations, tenderness on the chest, AND fractures of the 8th and 9th ribs, deviated nasal bone, fracture of the cheek bone and paralysis of the facial muscles on the right. For all these and further complaints, the judge only awarded the global sum of $20,000 for pain and suffering and loss of amenities.
  2. Although it is now 22 years on, and there has been a universal depreciation in the value of money, I would be erring if I were to contemplate making an award of the suggested figure of $30,000. In my considered opinion, I think a figure of $15,000 is the appropriate and adequate sum to award as general damages.
  3. At this juncture I would stress that some of the awards for special damages are based on the maxim of public policy “de minimis non curat lex”.
  4. For Special Damages I make the following awards:
  5. The claim for damage to the motor vehicle is ignored as she is not the registered owner.

2nd Plaintiff

  1. He suffered injuries as stated in the medical reports exhibits P3 and P4, viz soft tissue injuries to left knee, a left collar bone fracture and a 15% whole person impairment.
  2. None of the authorities cited refer to awards for the above injuries. I therefore conclude the apposite amount to award for general damages is $20,000.
  3. For Special Damages, I make the following awards:

The 3rd Plaintiff

  1. This Plaintiff suffered injuries as stated in his 2 medical reports, Exhibits P5 and P6, viz open dislocation of left big toe and a 2% whole person impairment. In my opinion a sum of $12,500 would be an adequate and fair award for pain and suffering and loss of amenities.

Special Damages

(i) Medical and Transport Expenses $150.00
(ii) Medical Report $57.50
(iii) Medicines $150.00

(2) Civil Action 145 of 2013

The Plaintiff as Administratrix of the Estate of Andrea is claiming:

(i) Compensation to Relatives who are Andrea’s father, mother and elder brother.
(ii) Loss of Expectation of life of Andrea.
(iii) Damages under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act, Cap 27.
  1. I will deal with (i) first. At the outset, I shall have to state there was a paucity of evidence provided by the Plaintiff to substantiate her claim. It is hard to believe in this day and age that a teenage girl who was not attending school, could be the source of support for her parents and elder sibling. I say this with some reluctance but one cannot run away from the evidence or the lack of it.
  2. In the first place the Plaintiff, Andrea’s mother was her ostensible employer. No documentary evidence was provided to the court because the records had apparently been destroyed by Cyclone Winston in February 2016. However 3 unsigned Wages Advice Slips for various periods in 2012 had been spared by Winston.
  3. Since these were unsigned slips and objected to by Counsel for the Defendants and Counsel for the 3rd party these could not be considered by the court.
  4. Then, Andrea’s mother in her evidence said she was the owner of the business and financially dependent on Andrea since 2 years before her death.
  5. Further, Andrea’s mother said she and her husband had been separated for more than 20 years. If this is so, it is unlikely her husband could have been financially dependent on Andrea, their daughter.
  6. Finally we have the brother who is stated in the Statement of Claim to be a driver. Yet, he claimed in his evidence that Andrea gave him $30 per week.
  7. At the end of the day, if I may say so, I shall not consider any supposed claim for compensation by relatives and proceed to consider the claim for the lost years.
  8. I am fortified in my decision here by the decision of Fatiaki J in: Hari Pratap v A.G of Fiji and Anor: Suva High Court Action No. HBC 95 of 1986, reported in another case.
  9. The first thing to consider is the multiplicand. I note that her mother in her evidence said that Andrea repeated Form 3 and was very poor in school and was 15 years old in Form 3 and then left school. This sadly can only mean that it is not possible as Plaintiffs’ Counsel is submitting to consider the possibility the deceased’s income would have increased with the passage of time.
  10. The best estimate I can put on the multiplicand is that a figure of $80 per week would be fair and appropriate.
  11. I turn now to consider the multiplier here where Andrea’s young life was so tragically snuffed out at the age of 17.
  12. I am here assisted by the case of: Chand v Pradeep & Gounder, HBC 0238/98L: where a multiplier of 17 was allowed in the case of a deceased who was a 14½ years old above average student at her death.
  13. I bear in mind the vicissitudes and uncertainties of life today and the fact that such claims have to be based on what McCardie J said in: Barnett v Cohen & Others [1921] 2KB 461 as a reasonable probability and not a speculative possibility of pecuniary benefit. I ultimately conclude a multiplier of 13 (years) would be appropriate here.
  14. Therefore the damages for the lost years would $80 x 52 x 13 i.e. $54,080.
  15. Finally I would award $2,500 as damages for loss of expectation of life.
  16. I make the following awards for Special Damages:
    1. Funeral Expenses $896.52 (agreed)
    2. Post Mortem Report $ 57.50
    3. Costs of Letters of Administration $750.00

105. I turn now to the Defendants’ claim against the Third Party in both actions. The
factual matrix and the legal position is the same in both.


106. The 3rd party only called one witness for its case and he was someone who had

been with the Land Transport Authority for 12 years and was familiar with road signs.


107. However no witness was called and no evidence was led with regard to the
insurance issue.


  1. In these circumstances, I am constrained to find and I so find and hold that the 3rd Party is not excluded from liability under its policy of Third Party Insurance for the Defendants’ vehicle at the material time.
  2. I therefore hold that the Third Party is required to indemnify the First and Second Defendants against the judgments entered against them in both actions and enter judgment for the Defendants against the Third Party accordingly.
  3. In fine, I make the following orders:

(A). Civil Action No. 109 of 2013

The First and Second Defendants are to pay to:

(i) The First Plaintiff the sum of $15,000.00 as general damages and

the sum of $324.35 as special damages.

(ii) The Second Plaintiff the sum of $20,000.00 as general damages

and the sum of $357.50 as special damages.

(iii) The Third Plaintiff the sum of $12,500.00 as general damages

and the sum of $357.50 as special damages.


(iv) All awards for general damages shall carry interest at the rate of

8% per annum from the date of service of the writ to the date of judgment; and all awards for special damages shall carry interest at the rate of 4% per annum from the date of the accident to the date of judgment.

(v) The judgment sum (general and special damages) shall carry

interest at the rate of 4% per annum from the date of judgment to the date of payment.

(vi) Costs, which I summarily assess at $4,000.00 to the Plaintiffs.

The Third Party shall forthwith thereafter indemnify the First and Second Defendants all sums paid by them to the First, Second and Third Plaintiffs by way of general and special damages, all interest thereon and costs.


(B). Civil Action No. 145 of 2013
The First and Second Defendants are to pay the Plaintiff:

(a) The sum of $54,080.00 as damages for the lost years.
(b) The sum of $2,061.52 as special damages.
(c) The sum of $2,500.00 as damages for loss of expectation of life.
(d) No pre-judgment interest on (a).
(e) Interest at the rate of 4% per annum on (b) and (c) from the date of accident to the date of judgment.
(f) Interest on the total judgment sum at the rate of 4% per annum from the date of judgment to the date of payment.
(g) Costs which I summarily assess at $2,000.

The Third Party shall forthwith thereafter indemnify the First and Second Defendants all sums paid by them to the Plaintiff by way of general and special damages, interest thereon and costs.


Delivered at Suva this 23rd day of September 2016.


............................................
David Alfred

JUDGE

High Court of Fiji

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