Official Administrator of Unrepresented Estates v Saki [1983] SBHC 35; [1983] SILR 218 (6 September 1983)

[1983] SILR 218

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 38 of 1983

OFFICIAL ADMINISTRATOR OF UNREPRESENTED ESTATES

v

SAKI

High Court of Solomon Islands
(Daly C.J.)
Civil Case No. 38 of 1983

6th September 1983

Tort - Damages - Assessment of damages under Law Reform (Miscellaneous Provisions) Act 1934 - single man.

Facts:

The Defendants admitted liability for the death of P. Action was brought for his estate under the Law Reform (Miscellaneous Provisions) Act 1934. P. was single man, employed as a driver and he supported his parents.

Held:

Applying the principles set out in Tanda v. Cheung (reported at page 193 above) the earnings of P. were assessed at $400 a month from which should be deducted 75% as the amount P. spent on maintaining himself. No greater deduction should be made on the basis that P. might have married (White v. London Transport (1982) 1 All E.R. 410 not follow). The multiplier was 15 (25 year purchase discounted at 4%). Award of $18000 made plus $1500 for loss of expectation of life. Total $19.500.

Other cases considered:

Fitch -v- Hyde Cates [1982] HCA 11; (1982) 39 A.L.R. 581
Benson -v- Biggs Wall & Co. (1982) 3 All E.R. 300
Harris -v- Empress Motors (1982) 3 All E.R. 306

For Plaintiff: K. Brown and A. Radclyffe
For Defendant: I. Molloy and J. Carrington.

Daly CJ: On 19th December 1981 Nicholas PERESINI (“the deceased”) died in a motor accident. The Official Administrator of Unrepresented Estates (“the plaintiff”) brings action against the defendant on behalf of the estate and on behalf of the dependants of the deceased. Judgment having been signed under Order 14 damages now have to be assessed.

I have set out in my judgment in Tanda v. Cheung (reported at page 193 above) the principles and methods to be applied in considering claims under the Law Reform (Miscellaneous Provisions) Act. 1934 and the Fatal Accidents Acts (1846 to 1959) and I therefore proceed straight away in this judgment to the assessment of damages on the basis of those principles and methods.

The Estate Claim

Two simple matters first. For loss of expectation of life I award $1500. The claim for funeral expenses is disputed and no evidence has been led to support the claim. It is dismissed.

The claim for loss of earning capacity during the years of life the deceased would have probably lived is, as ever, difficult to quantify; although fortunately not as difficult as in the Tanda case.

The deceased was aged 18 years at his death and was unmarried. He was in regular paid employment as a driver with Shorncliffe (S.I.) Ltd having started work with that company in 1979. The deceased was a specialized driver and described by the now manager of the firm, Mr Reid, as a “way above average worker” and “one of the best drivers” they had in Solomon Islands. At the date of his death the deceased was receiving an average of $250 a month as take home pay. There have been since the death and prior to trial three pay awards; one of 10%; one of 6% and one 12%. On my calculations this would result in earnings of $337.94 at date of trial.

As is the habit with tax, its burden increases with the amount of receipts and I must make some reduction in this sum for that increase in tax. I therefore round the figure off to $300.

Would, on the balance of probabilities, the earnings of the deceased have been even higher than that? The evidence of Mr Reid was that the deceased was of such a calibre that by trial he would have been promoted to senior foreman. Mr Reid points out that the only other specialized driver, who was in fact paid less on the merit basis operated by the Company, has received promotion to leading hand. This employee, Gabriel, is now paid $1.50 an hour as opposed to the 80 cents he was paid before he was promoted 2 years ago, shortly after the deceased died. As a result of the pay awards, on 80 cents an hour originally Gabriel would now be in receipt of $1.05 an hour if he had not been promoted. Thus Gabriel has received a 43% pay rise attributable to his promotion that is the difference between $1.05 and $1.50. If the deceased had received the same promotion I find that his pay rise would have been of the same order. Mr Reid said what the company did on promotion was to assess previous year’s earnings and then add something for the promotion. On this basis the deceased would now be in receipt of approximately $429 a month; again rounded down to allow for tax to $400. Mr Reid in fact said that the deceased would have become a senior foreman by now whereas Gabriel is in the position of leading hand, one level below. However I am not convinced that a man as young as the deceased with no experience of paper work and supervision would have really got such rapid promotion or, if he had, that he would have succeeded in it. I shall, then, take the figure of $400 a month as the take home pay of the deceased at the date of trial. Prior to pay awards this figure would have been less in the pre-trial period but I consider it represents overall a fair average, taking into account the two “rounding-offs” that I have performed and allowing for interest on sums unpaid as they fell due over that period.

From this figure of $400 must be deducted a reasonable amount for the expenses of maintaining the deceased himself. The deceased lived in company accommodation and provided his own food and clothing. There is no evidence that he lived anything but a modest life visiting his parents by pickup truck at the weekends. There was no indication of it being likely that he would change his standard of living although one can assume that with promotion he might spend more on himself. The deceased gave his parents something like $40 a month out of his $250 a month earnings. He also maintained a savings account in a substantial balance. Payments into this account indicate that in the 18 months prior to his death the deceased saved an average of $20 a month. Thus the deceased had at least a surplus disposable income of $60 a month when he was earning $250: that is, he was-not spending at least 24% of his income on himself. Taking a figure of 25% surplus that would mean at the date of trial the surplus disposable income of the deceased would be $100. Counsel for the Plaintiff is content to submit that 25% of the income should be so regarded and I shall therefore take $1200 a year as the multiplicand for the purpose of the loss of earning capacity calculation.

I should, out of courtesy to counsel for the defendant, touch on one submission which he made on the law which was not canvassed in the previous case. This was that I should have regard in fixing the multiplicand to the possibility of the deceased marrying. This course was adopted by Webster J in White v. London Transport (1982) 1 All E.R. 410 when he said at page 419: -

“Third, is there any factor which makes his case other than an average one? In my judgment, the fact that at the date of his death aged 25 he was living with his mother is such a factor, and I find that on that account the cost of his housing and heating would have been less, and his available surplus therefore more, than it normally would be. So long as he would have lived with his mother, therefore, I infer that his available surplus would have been one-third of his net earnings rather than one-quarter of them. I find that sooner or later, he would have been likely to have stopped living with his mother and that he would have gone to live on his own or with a wife, and that of the many possibilities as to when that would have happened, the most likely is that it would have happened a five years after his death, that is to say, at the age of about 30.

In these circumstances my award for lost earning: is one-third of his net earnings for the first five years of the 15 years’ purchase and one-quarter, those earnings for the remaining ten years.”

With respect, I do not follow the reasoning behind such calculation. As I said in my judgment in Tanda’s Case, it is now common ground in both Australia and the U.K that sums expended on maintenance of the dependents are to be ignored (see Mason J. in Fitch v. Hyde Cates [1982] HCA 11; (1982) 39 A.L.R. 581 at page 592) in calculation of the surplus income. The learned judge cannot therefore be saying that he must make the reduction in amount available because the deceased would have spent the difference his wife and children. He can only be saying that the deceased’s expenditure on himself would increase after marriage. But is this likely to be so? A married man may well spend less on himself when he has a young father than a bachelor. This would seem to be reflected in awards made in the U.K. in cases of married men. In Benson v. Biggs Wall & Co. Ltd (1982) 3 All E.R. 300 the deceased was aged 21 years at death and left a widow and young child. There 30% was deducted from income living expenses spent on the deceased himself, (as opposed to the 75% deducted by Webster J. in White v. L.T.E). In Harris v. Empress Motors (1982) 3 All E.R. 306, 25% was deducted in the case of a 29 year old deceased who was married with two young children.

I do not propose to follow, then, the course adopted Webster J in White v. L.T.E and I regard the multiples as constant.

What should the multiplier be, taking into account the life expectancy of the deceased and his probable working life? I take into account here contingencies such as ill health, accident, premature death and so on. Clearly to earn the sums involved would require, as Mr Reid said sustained hard work and considerable overtime which, in the climate of Solomon Islands would inevitably take its toll. I would give the deceased an initial 25 year purchase which, discounted at 4%, gives a multiplier of 15.

This gives a final figure of $18,000 for the lost years. To this must be added the $1500 awarded for loss of expectation of life making $19.500 in all. As Peter Pain J. indicated in Benson’s Case these awards certainly do amount to opening a Pandora’s Box.

The Dependency Claims

The claims for dependency are made on behalf of the parents aged about 50 and 40 years. It is common ground that they will be jointly entitled to the benefit of the estate and any gain through the estate will be offset against an award for a dependency. As the multiplicand for a dependency award to either is likely to be less than half of the surplus income figure of $100 and, in view at the ages, the multiplier is likely to be less than 25 years (the father’s life expectancy is 18 years; the mother’s 25 years as shown on the table of life expectancy) then on any approach that takes into account contingencies neither will on “ball-park figure” calculation recover more than half the estate award as a dependency. In those circumstances I do not propose to embark on the task of estimating the dependencies as I would only subsequently conclude that they were extinguished by the estate award. If it becomes necessary I shall certainly undertake the task and liberty to apply to restore for that purpose is given.

Judgment for the plaintiff for $19,500 in relation to the claim under the Law Reform (Miscellaneous Provisions) Act 1934. No order on the claims under the Fatal Accidents Acts with liberty to restore to apply for assessment of those claims.

I shall hear counsel at costs and interest.

(Note: An appeal was filed against the decision with the Court of Appeal. Argument was heard on 6th December, 1983. Judgment as yet has not been delivered).