Demaure v Nauru Local Government Council [1980] NRSC 10; [1969-1982] NLR (A) 189 (12 November 1980)

[1969-1982] NLR (A) 189

IN THE SUPREME COURT OF NAURU

Civil Action No. 1 of 1980

JOHN DEMAURE

v.

NAURU LOCAL GOVERNMENT COUNCIL AND ANOTHER

Damages - value of motor car - manner of calculation.

Damages - death of mother - father providing children with services previously provided by mother - no separate damages payable to children.

Damages - loss of services of wife - manner of calculation.

12th November, 1980.

E.D. was killed when a motor lorry owned by the first defendant and driven by the second defendant collided with a motor car belonging to the plaintiff and driven by E.D. The motor car was destroyed. E.D. was the wife of the plaintiff and the mother of his five children (for whom he also sued as next friend) Before her death she managed the family's finances, ran the family home and provided the usual services which a wife provides for her husband and children. After her death the plaintiff managed the family's finances but E.D's sister looked after the family home and provided the services with which E.D. had provided them. She did so voluntarily, i.e. not under any contractual obligation, but the plaintiff paid her $200 a month because such payment was expected of him by Nauruan custom. The plaintiff's motor car was two years old at the date of the collision; it had cost $5,700 new. Eight months after the collision the price of a similar new car was $9,225. The "life-span" of such a car in Nauru, if it is properly looked after, is about 4½ years. The first defendant admitted liability for E.D.'s death and the plaintiff's loss of his car. The second defendant did not enter an appearance; default judgment was entered against him. The quantum of the damages recoverable by the plaintiff on his own behalf and on behalf of his children remained to be decided.

Held: (1) In the absence of evidence of a used-car market price, the value of the plaintiff's motor car at the date of its loss was to be calculated by deducting from the amount of the price of a similar new car at that date an amount for depreciation of its value based on that price, its age and the usual "life-span" of such motor cars.

(2) E.D.'s children had sustained no loss of services and had, therefore, suffered no compensatable loss; but the cost to the plaintiff of providing them with services similar to that previously provided by E.D. was recoverable by him.

(3) The plaintiff was entitled to recover, in respect of the loss of E.D.'s services, the cost of replacing them, reduced by the amount which he had spent on supporting E.D. while she was alive. The possibility of his remarriage was to be taken into account in deciding the period of loss of E.D.'s services for which he was entitled to be compensated.

Mrs. M.L. Billeam for plaintiff
P A. Thorpe for 1st defendant

Thompson, CJ.:

The first plaintiff is the widower and the other plaintiffs the children of the late Esther Demaure. At the commencement of the proceedings a ruling was given that the first plaintiff should be permitted to prosecute a claim under the Fatal Accidents Acts 1846 to 1959 of England in their application to Nauru, conditionally upon the decision of the Nauru Lands Committee, already reached, that he is a beneficiary of the estate of Esther and trustee for her children being perfected by gazettal.

Esther was killed when a truck belonging to the first defendant and driven by the second defendant crashed into the plaintiffs motor car, which she was driving. Liability is admitted by the first defendant and a default judgment has been entered against the second defendant.

There are two claims, first by the first plaintiff on his own behalf alone in respect of the loss of his motor car, and second by him on behalf of the children of Esther as well as on his own behalf.

In respect of the first claim Mr. Thorpe, representing the first defendant, conceded that the first plaintiff's vehicle was a total loss and that the first plaintiff is entitled to recover the full amount of its value at the date of the collision. The manager of N.C.S. Motors, Mr. Sardi, gave evidence that the value of the car, maintained as it was and having done the mileage which it had, would have depreciated by $400 a year. It cost originally $5,700 in March, 1977. On that basis its value in March, 1979, would have been $4,900. No evidence was adduced of any used car market price.

Mr. Thorpe elicited from Mr. Sardi evidence of the "life-span" of such a vehicle in Nauru. That evidence was that, if such a vehicle were efficiently rust-proofed, well maintained, carefully driven and not damaged, it could be expected to last for 4½ years. That, of course, does not mean that it would have no resale value whatsoever; but presumably its value would be small, say $1,000. On that basis the value of the car after two years would have depreciated by four-ninths of $4,700, i.e. just under $2,100 to $3,600. But that calculation assumes that the value of the car had not been increased by any rise in the price of motor cars generally in Nauru. By November, 1979, the price of a new car similar to the first plaintiffs would have been about $9,225. There is no evidence what the price would have been in March, 1979, but, if a steady rise in price over the period from March, 1977, to November, 1979, is assumed, it would have been approximately $8,350 in March, 1979. If the depreciation is worked out on that price, i.e. as four-ninths of $8,350, the value of the car in March, 1979, would have been approximately $5,085, very nearly the price estimated by Mr. Sardi.

The first plaintiff has claimed $5,000 as special damages for the loss of his motor car. I am satisfied that he has established that as its approximate value. He is, therefore, entitled to judgment for $5,000 as claimed. He is also entitled to interest on that amount for the period from the date of the loss, i.e. 31st March, 1979, until the date of this judgment. The amount of interest should bear a reasonable relationship to the rate of inflation and to the rate of interest which the first defendant, and its insurer could have obtained if they had invested the money. The cost of motor cars in Nauru has been rising at over 20% per annum in recent years but the increase in the cost of living generally has not been quite so high. Interest rates have varied from country to country but have generally been quite high. I think it reasonable to fix the rate of interest payable in this case at 12%, and I order that interest be paid at that rate. For the period from 31st March, 1979, to the date of this judgment that is $970.

In respect of the second claim the first plaintiff has lost the services of his wife and the children have lost the services of their mother. Those services were rendered gratuitously but nonetheless had a value and their loss is a proper basis for the award of damages. So far as the children are concerned, their father is alive and, even if he remarries, the new wife will provide them with a home; he will provide for them in one way or another the lost services of their mother. He may be entitled to more compensation for that reason but the children are not separately entitled to any.

As to the loss suffered by the first plaintiff, the widower, there must be offset against it the amount which, before his wife died, it cost him for her maintenance, clothing and personal expenses. He now pays $12 to $15 a week for laundry expenses; but he paid more or less that amount before his wife died. So her death has not caused him to spend more on laundry. He also pays $200 a month to Esther's sister to cook for the family, do some of its washing and generally look after the children. He is not legally obliged to pay her; she volunteered her services. But by Nauruan custom he is morally obliged to reward her for her services to the best of his financial ability to do so. She was unemployed and suffered no pecuniary loss by rendering the services. Nevertheless the services have a value and a pecuniary sum must be assessed for them. The youngest child is now 8 years old; he was six when Esther died. The other children are now aged respectively 11, 12, 14, 17 and 18 years. Except, for a short time, for the child now aged 11 years, they have at all times since Esther's death been of an age when they would have been only minimally reliant on Esther's services, other than cooking, laundry and the cleaning of the home. The youngest child would have needed more maternal supervision and probably needs it for another two years. So the services of Esther's sister which have replaced those of Esther have been cooking the family meals, cleaning the house and providing maternal supervision for the youngest child. I think that the value of those services is probably more or less what the first plaintiff has been paying for them. In two years' time they will be reduced to simply cooking and cleaning the house. So for the period from 1st April, 1979, up to date and for a further two years the value of Esther's lost services has been and will be $200 per month and after 12th November, 1982, it will be $150 per month.

The first plaintiff has also lost the services of Esther as the manager of the family's finances; he has now undertaken that task himself. However, he has not shown that he has incurred any quantifiable expenditure or suffered any pecuniary loss as a result.

Before Esther died, the first plaintiff handed all his income to her and she dealt with it. She used it for family expenses but also could, and did, use it for personal expenses. The first plaintiff was unable to give any figure for the amount she used for personal expenses as apparently she never accounted to him. All that this Court can do therefore is to estimate what amount it is likely to have been. The first plaintiff is employed by the Works Department as driver of a water tanker; his wages would be comparatively low. However, he has also from time to time received phosphate royalties, all of which he handed over to Esther to deal with. He has been able to afford to pay Esther's sister $200 per month for her services. I think it reasonable to assume that before Esther died, she would have been using $100 a month for her clothing and other personal expenses.

So the actual cost to the first plaintiff of the loss of Esther's services to him and his children has probably been $100 a, month and will remain so for another two years, unless he remarries before then. After that it will be $50 per month. The chances of the first plaintiff remarrying are more than minimal. It is customary for relatives to try to arrange another marriage and such attempts have already been made in his case. So far he has preferred not to remarry but he has given evidence that he is undecided whether to do so in the future or not. He is now aged 48 or 49 years. In all the circumstances, particularly in view of the possibility of remarriage, I think that damages for loss of Esther's services to him should be limited to a period ending on 12th November, 1985. Accordingly he is entitled to damages of $4,360 for the period from 31st March, 1979, until 12th November, 1982, and $1,800 for the period from 13th November, 1982, to 12th November, 1985. That makes a total of $6,160. He is entitled to interest for the period from Esther's death until the date of this judgment. But the damages for the loss he is likely to suffer over the next five years must be discounted to take account of the fact that he will be able to invest the lump sum and receive interest on it. That reduces the total from $6,160 to $5,460.

Accordingly the first plaintiff is awarded a total of $11,430 damages in respect of both his claims. He is also entitled to the costs of this action.