Tenubobo v Mawanei [2017] KICA 13; Civil Appeal 4 of 2017 (16 August 2017)

IN THE KIRIBATI COURT OF APPEAL ] Civil Appeal No. 4 of 2017
CIVIL JURISDICTION ]HELD AT BETIO ]REPUBLIC OF KIRIBATI ]

BETWEEN ANETI TENUBOBO
DOMINOS WHOLESALE
NEI MANU TEIAA T/A DOMINOS
WHOLESALE APPELLANT
AND MAITE MAWANEI (FOR AND ON
BEHALF OF HERSELF AND ALL OF
NITO RAWITA’S SURVIVING
DEFENDANTS RESPONDENTS

Before: Blanchard JA

Handley JA

Hansen JA
Counsel: Banuera Berina for appellants

Taoing Taoaba for respondents
Date of Hearing: 11 August 2017
Date of Judgment: 16 August 2017

JUDGMENT OF THE COURT

[1] This is an appeal by the second defendant on liability and damages from the judgment of the High Court in an action brought by the widow of
Nito Rawita following his death. He was walking on the main road in Bikenibeu about midnight on 21 April 2010 when he was struck and killed by a truck owned by the appellant and driven by the first defendant, one of her employees. He is serving a lengthy prison sentence arising from the death of the husband and took no part in the proceedings.

[2] The issue on liability turned on whether the first defendant was driving in the course of his employment by the second defendant when his truck struck and killed the husband. The widow’s action was based on the Fatal Accident Act 1846-1959 and the Law Reform (Miscellaneous Provisions) Act 1934, UK statutes having the force of law in Kiribati. The former enables the dependants of a person who dies as the result of the wrongful acts of another to recover damages for financial loss resulting from the death. The latter provides for causes of action available to a deceased person to survive his or her death to be enfoceable by the executor or administrator for the benefit of the estate.

[3] The only evidence of the circumstances leading up to the death of the husband was the judgment of Millhouse CJ in the criminal trial of the first defendant in which he was acquitted of murder but found guilty of dangerous driving causing death. The judgment, and the judgment of this Court on the first defendant’s appeal against the severity of the sentence (Ex P6) were admitted by consent. The eye witnesses were not called.

[4] The first defendant, who had been working from the appellant’s bus depot, left about midnight to drive Tekiata Marewerewe, one of the appellant’s bus drivers who had gone off duty, to his home near the Nawerewere Hospital in Bikenibeu. In the course of their journey the passenger identified the husband walking along the road towards Betio. Moments later he was struck and killed by the truck. The Chief Justice quoted the following extract from the passenger’s evidence:

“On truck – Aneti driving – I was in front. I was to be dropped off on that vehicle...... Saw two people walking on road. Didn’t really recognize them. Didn’t reach hospital. They were walking on lagoon side. We were driving on ocean side. He asked if I knew the man. “I think I know him. It looks like Nito”. Then driving in middle almost to lagoon side. Nito was walking towards Betio and then he turned back walking towards us. Truck going towards Betio. He seemed to be walking backwards: then we bumped into him. We were 5m away when saw Nito walking towards the truck. Nito on lagoon side. Truck going direct to him. Hit Nito. He drove on and over him and drove away. He said not to tell anybody. When saw Nito we were travelling about 30. After hitting Nito very fast. After running over and taking off, our lights turned off. We drove into where Peace Corps used to be .....”

[5] Mr Berina, who appeared for the appellant, submitted that this evidence established that the driver caused the truck to do a U-turn and run down the husband from behind. We cannot read this evidence in that way. We have not had the benefit of seeing and hearing the passenger give evidence, and the rest of his transcript is not before us. Significantly the Chief Justice, who had those advantages, acquitted the driver of murder. If the driver had executed a U-turn before his truck struck the husband his intention of killing the husband or causing him grievous bodily harm would have been established and a verdict of murder should have followed. We reject
Mr Berina’s submission based on a reading of that part of the passenger’s evidence in the criminal trial.

[6] This really disposes of the argument that the driver was acting outside the course of his employment, on “a frolic of his own”, when the truck he was driving struck and killed the husband. He was employed by the appellant to drive other employees back to their homes after they came off duty late at night. At the time he was engaged in doing just that, travelling towards the home of his passenger. He drove negligently or perhaps recklessly but on an authorised journey. He was therefore acting in the course of his employment. The appeal against the judgment on liability fails.

[7] The trial Judge rejected the widow’s claim under the Fatal Accidents Act but awarded $15,000 damages under the 1934 Act as “general damages for loss of expectation of life”. Mr Berina argued that the damages on this head were excessive, and the appropriate award, in accordance with the principles established by Benham v Gambling [1941] AC 157, should not be more than $3,500.

[8] The widow gave evidence that her husband was in a steady job earning $80 a week, and sometimes more if the employer paid a bonus. He was 27 years of age in good health. He had been working for his current employer, Coral Ace, for some four years. She said that her husband used to give her his wages “in full”. He had lunch at the premises of his employer, and it seems that the cost, $2.50 each time, was deducted from his pay.

[9] His wife and their two children aged 5 and 18 months were totally dependent on the husband’s earnings. He also supported his parents, neither of whom worked. They and the husband’s two sisters lived with them in the same household, but the widow agreed in cross-examination that both sisters were working when the husband died.

[10] The widow’s evidence of the dependency of herself, her children and her husband’s parents was not challenged. Mr Berina established in his
cross-examination that the sisters were no longer dependent on his earnings when he died. His cross-examination also established that the widow did not have a claim for funeral expenses because they were paid by her husband’s relatives who were working overseas.

[11] The Judge said:

“She did not adduce credible evidence to prove that indeed her husband was earning $80 per week and most importantly she did not prove how much of this was being spent on the family to enable Court estimate the loss of dependency ..... In these circumstances I will only consider the issue of general damages for the loss of expectation of life”.

[12] The widow’s evidence that her husband paid her $80 a week was not challenged in cross-examination, although Mr Berina established that she had no documentary evidence of his earnings. Nor was she challenged on her evidence that he had been working for Coral Ace for some four years. Her evidence about the money she had been receiving each week from his wages was inherently credible and there was no evidence of other sources of income to feed and clothe the immediate family. The trial Judge was not entitled to reject the widow’s evidence of her husband’s earnings, and the extent to which the family depended on them.

[13] The widow did not cross appeal from the assessment of damages, nor did she file a respondent’s notice under rule 19 of the Court of Appeal Rules. However rule 22(4) provides:

“The powers of the Court of Appeal under the foregoing provisions of this rule may be exercised notwithstanding that no notice of appeal or respondent’s notice has been given in respect of any particular part of the decision of the Court below or by any particular party to the proceedings in that Court, or that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice; and the Court of Appeal may make any order, on such terms as this Court thinks just; to ensure the determination on the merits of the real question in controversy between the parties”.

[14] Given our finding that the widow proved that four adults and two children were dependent on the husband’s wages of $80 per week, a serious injustice would be done to the widow if we have to reduce the award of damages. We propose to intervene and exercise our powers under r.22(4).

[15] In Gammell v Wilson [1982] AC 27 the House of Lords held that the estate of the deceased person could recover damages under the 1934 Act for the earnings that would not be received during “the lost years”, the years when the deceased would otherwise have received those earnings. As McGregor on Damages 15^th ed. 1988 page 1019 states, this decision established “that the estate could now claim in respect of prospective earnings”. Section 1(5) of the 1934 Act provides that the rights of a deceased estate under that Act “shall be in addition to and not in derogation of any rights conferred on the dependents.... by the Fatal Accidents Act”. In this case the failure of the claim under the Fatal Accidents Act means that no adjustment to the award under the 1934 Act is needed to avoid over-compensation: Davies v Powell Duffryn Collieries Ltd [1942] AC 601.

[16] The damages awarded for loss of prospective earnings of a deceased person during the lost years must allow a deduction of so much of these earnings as would have been spent by the deceased on himself. There is no precise evidence of this, but the position is covered by the well-established principle stated by McGregor on Damages (op cit) at p. 214:

“..... where it is clear that some substantial loss has been incurred, the fact that an assessment is difficult because of the nature of the damage is no reason for awarding no damages or merely nominal damages.”

[17] It is obvious that most of the husband’s wages were spent for the benefit of his dependants. It is also obvious that he had some 20 further years of working life ahead of him. We infer that a fifth of his earnings or some $15 a week may have been spent on himself and the balance on the other three adults and two children. Thus the $11,500 awarded by the trial Judge in excess of the conventional award of $3,500 for loss of expectation of life, will not be over compensation for the lost prospective earnings for the balance of the husband’s working life.

[18] The appeal is dismissed with costs.

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Blanchard JA

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Handley JA

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Hansen JA