Basiran v Singh [1962] FJLawRp 17; [1962] 8 FLR 173 (31 July 1962)

[1962] 8 FLR 173

SUPREME COURT OF FIJI

Civil Jurisdiction

BASIRAN

v

HARPHUL SINGH

MacDuff C.J.

June, 18th, 19th, July, 31st, 1962

Damages—negligent driving—death caused—principles of assessment of damages —Law Reform (Miscellaneous Provisions) (Death and Interest) Ordinance (Cap. 17)—Compensation to Relatives Ordinance (Cap. 20).

Principles of awards of damages under the Law Reform (Miscellaneous Provisions) (Death and Interest) Ordinance and the Compensation to Relatives Ordinance (Cap. 20), considered and applied.

Action in the Supreme Court for damages for death caused by negligent driving. On the facts the court found that the defendant was negligent and that there was no reliable evidence of negligence on the part of the deceased. Judgment was entered for the plaintiff, and the report is confined to the question of assessment of damages.

F. M. K. Sherani for the plaintiff.

D. M. N. McFarlane and R. I. Kapadia for the defendant.

MACDUFF C.J. (in part): [31st July, 1962]—

The remaining issue is the quantum of damages. Under the Law Reform (Miscellaneous Provisions) (Death and Interest) Ordinance the estate of the deceased is entitled to be compensated in respect of the pain and suffering of the deceased, and his loss of expectation of the remainder of a happy life together with such expenses as his estate has suffered through his hospitalisation and death. In view of Dr. McIntosh's evidence it would appear that he was older than his widow has said and that he was suffering from a heart condition which would not only affect the term of his expectation of life but also towards its later stages would possibly have resulted in his invalidity. I think that if I allow the sum of £200 under these heads I am being generous. I allow funeral expenses at £20. Judgment will, therefore, be for the Plaintiff, as administratrix of the estate of Sahada Ali, for £220.

Turning next to the claim under the Compensation to Relatives Ordinance. This Ordinance makes provision for compensation in the same manner as do the Fatal Accidents Acts and decisions by the House of Lords and Court of Appeal in England on the assessment of damages under those Acts to the extent that they are in pari materia should be followed by this Court. From the decisions of those Courts it would appear that the following is the method of assessment of damages for the death of a husband and father of small children which this court should endeavour to apply. The court should find the age and expectation of working life of the deceased, and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i.e. his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalised by multiplying by a figure representing so many years' purchase. The multiplier will bear a relation to the expectation of earning life of the deceased and the expectation of life and dependency of the widow and children. The capital sum so reached should be discounted to allow for the possibility or probability of the remarriage of the widow and, in certain cases, of the acceleration of the receipt by the widow of what her husband left her, as a result of his premature death. A deduction must be made for the value of the estate of the deceased because the dependants will get the benefit of that. The resulting sum (which must depend upon a number of estimates and imponderables) will be the lump sum the court should apportion among the various dependants.

In this case the age of the deceased was given in the pleadings as 43, by his widow as 48, and was estimated by Dr. McIntosh as being between 50 and 55. Dr. McIntosh has given evidence of a heart condition which would affect the deceased's expectation of life materially and which would curtail his effective working life. Leading Counsel for the Defendant has suggested 10 years as being a reasonable estimate of the deceased's expectation of life. I feel that this is generous but I accept his suggestion. On the other hand I assess his expectation of working life at nearer 8 years.

The deceased had been employed for the last four months of his life as a driver by his brother, Rahamat Ali, at a monthly salary of £20. Prior to that, according to his wife, he worked as a casual driver. I think it fair to hold, however, that he would have been employed by his brother so long as that brother was in the cattle trading business, and that if that employment ceased he could have got a job as a driver at a wage closely approaching £20 per month. The deceased, according to his brother, received an allowance for food and grog. His clothing, tobacco and incidental expenses would be a charge against his wages, as would his own keep at home. In passing I may say that although I have, perforce, accepted these figures I find it difficult to reconcile them with the way his family were living. On these facts I assess the degree of dependency of the deceased's widow and three children at two-thirds of his wages — i.e. £160 per annum.

Turning next to the expectation of life and dependency of the deceased's widow and children. The widow I doubt will remarry and must be expected ordinarily to have outlived the deceased. The daughter Sairabibi was 15 years at the date of the deceased's death. I think account must be taken of the fact that she has now reached marriageable age and can be expected to marry within the next few years. The son, Mansoor Ali, was nearly 14 years old at the date of the deceased's death. He has now left school but is employable although still unemployed. His period of dependency on the deceased would have been short. The youngest child, Ashraf Ali, was aged 9 years and the length of his dependency may be taken to be coextensive with his father's expectation of working life.

Having taken the relevant factors into consideration in arriving at a multiplying factor I allow £1,120 from which must be taken the £200 allowed under the Law Reform (Miscellaneous Provisions) (Death and Interest) Ordinance. The net amount I apportion as follows:

(a) to Basiran (widow) £500

(b) to Sairabibi (daughter) £100

(c) to Mansoor Ali (son) £ 80

(d) to Ashraf Ali (son) £240

The amount payable to Ashraf Ali is to be paid to the Public Trustee on his account until he attains the age of 18 years with power to advance in his absolute discretion for the education, maintenance and advancement of Ashraf Ali.

The Defendant will pay the Plaintiffs taxed costs.