Fonokalafi v Tonga Communications Corporation Ltd [2010] TOSC 3; Civil Case 142 of 2008 (1 March 2010)

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IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

TONGA COMMUNICATIONS CORPORATION LIMITED, FONGOLOA, NUKU ‘ALOFA, TONGATAPU
Defendant

Counsel: Mr L.M. Niu S.C. for the Plaintiff
Mrs A.N. Taumoepeau for the Defendant

1. Introduction – para [1]
2. First preliminary matter – agreement for Judge to continue hearing – para [3]
3. Second preliminary matter – plaintiffs standing to bring claim – para [12]
4. Factual background – para [14]
5. The law – para [29]
6. Discussion – para [34]
7. Duty of care – para [35]
8. Was there a breach? – para [48]
9. Was the breach causative? – para [54]
10. Should the defendant have taken steps to avoid the risk? – para [58]
11. Damages introduction – para [62]
12. Basis of assessment – para [73]
13. Plaintiffs approach – para [75]
14. Defendant’s approach – para [84]
15. The Lei decision – para [87]
16. Discussion – para [92]
17. The multiplicand – para [105]
18. The multiplier – para [121]
19. Final result – para [138]

[1] This is an action for damages brought pursuant to s3 of the Fatal Accidents Act No. 10 of 1949 – CAP 34 ("the Tongan Act"). It arises from the death of Sione Kaufusi Holani Fonokalafi ("the deceased") who died on the way to hospital after receiving an electric shock at his home at approximately 7.30am on 8 July 2008.

[2] The action is brought in the name of the plaintiff as the administratrix of the deceased’s estate on behalf of herself as his widow and their two children, Solomone Manase Fonokalafi, born on 6 October 2004, and Timoti ‘Akositaine Unaloto Ki Hofangahau Fonokalafi, born on 14 April 2006.

[3] At some point during the course of the hearing, a member of the Court staff told me the plaintiff was the sister of my clerk, Miss Lu’isa Paletu’a. I think this was after the first week, and when the hearing had been adjourned.

[4] This did not cause me any concern at the time because the matter was seemingly only raised with me as a matter of interest rather than one of concern. I rather assumed that, if the relationship had caused any concern to the parties, then this would have been raised by them.

[5] On Saturday 28 November 2009, after the hearing of evidence had been completed and when the case had been adjourned to enable counsel to file final submissions in writing, Miss Paletu’a told me she had been asked that day by Mrs Taumoepeau whether I was aware that the plaintiff was her sister. She had said yes I was. Apparently the other staff member must have mentioned the earlier conversation with me.

[6] On receiving this information, I requested the Chief Registrar to arrange for counsel and their clients to see me in Court for Chambers as soon as possible on Monday 30 November 2009.

[7] At that time I advised counsel and their clients of the above matters and further informed them:

(a) At no stage had Miss Paletu’a spoken to me about the case, nor I with her, apart from matters incidental to the conduct of the hearing.

[8] I then requested counsel to retire with their clients and return after they had had sufficient time to consider the matter and then let me know whether they were content for me to continue with the hearing or not.

[9] Mr Niu told me then, that he had already discussed it with his client and that there was no concern at all that I would not be able to be objective.

[10] Mrs Taumoepeau retired with her client for a short time. On her return she too said there were no concerns about my continuing. She also mentioned that the relationship in question had only come to notice on Saturday 28 November 2009.

[11] Having received these assurances, I informed counsel that I was prepared to continue with the hearing.

[12] This matter was raised for the first time by Mrs Taumoepeau in written submissions after the hearing had been concluded. She submitted the plaintiff had failed to prove she was the administratrix of the deceased’s estate, this being an essential element for a claim under the Act.

[13] In fact, the plaintiff had provided the necessary documentary evidence of her appointment in her bundle of documents filed prior to trial. Both counsel had confirmed at the commencement of the trial that "all documents in both plaintiffs and defendant’s bundles are produced by consent". Nothing more need be said.

[14] The deceased and his family lived in a home owned by another family member situated on the Hihifo Road between the Ha’amea Road to the west and the Havea Road to the east towards Nuku’alofa.

[15] The house was served with electricity provided from Nuku’alofa by (now) Tonga Power Ltd.

[16] The main supply in this area originated in Nuku’alofa. It was distributed through 11000 and 6000 volt high tension ("H.T.") lines. The main line ran west from Nuku’alofa. It was suspended from wooden poles erected on the north side of Hihifo Road. At various points, 6000 volt H.T. wires ran from the main H.T. line south across Hihifo Road. One such crossing was near the junction of the Hihifo and Ha’amea Roads. Two 6000 H.T. wires had been run from pole No. 1900 erected on the north side of Hihifo Road, across the road to Pole 2212 which was erected on Ha’amea Road a few metres from the junction with Hihifo Road.

[17] The deceased’s residence received its supply of electricity from pole 1893 which is approximately 400 meters nearer to Nuku’alofa than is pole 1900.

[18] The deceased’s house had a telephone connection provided by (now) the defendant. The power for this service also originated in Nuku’alofa. The main telephone power line was laid underground on the south side of Hihifo Road. Whenever a telephone connection had to be provided to a home or business, a line was taken from the underground line, up the nearest power pole to a junction box and thence to the place where the installation was required. If the new connection happens to be on the other side of the road, then the line is taken from the junction box, across the road to a pole on the opposite side of the road.

[19] It has been the practice for many years in Tonga for the same poles to be used to carry lines (both high tension and low tension) for electricity distribution and telephone lines. When this occurs, the telephone lines are mounted under, and separated from, the power lines. Usually there is more than one telephone line. In the present case, there were about five such lines together.

[20] At about 7.30am on 8 July 2008, the telephone rang at the deceased’s home. He took up the receiver, the receiver cord came into contact with his chest, and he then received a massive electrical shock. He died from this on the way to hospital.

[21] There is no dispute as to how this accident had happened. Something had caught the telephone line crossing the Hihifo Road, had stretched it and then broken it. The wire had then twisted itself around one of the 6000 H.T. wires above it. The insulation around the telephone wire had burnt away allowing the 6000 volt current (or some of it) to travel down the telephone wire. That current set out to find an earth. Sadly it found it when the receiver cord came into contact with the deceased’s chest. It is assumed that the power surge down the telephone line had caused the phone to ring beforehand.

[22] Nobody saw the telephone line being broken on Hihifo Road, but it is accepted that this must have been caused by a container truck or some other vehicle with similar high dimensions. In recent years it has become quite common for telephone lines and low tension power lines to be broken in this manner.

[23] Mr Ian Shelton, the network design and planning manager for Tonga Power Ltd, gave evidence that, since 2003, there had been 43 reported instances where 230 volt low tension (H.T.) power lines had been broken by container or similar vehicles. Instances of telephone wires winding around power lines (usually 230 volt) occurred about once a month. The present case was the first time he was aware of current being conducted along a telephone wire after accidental contact with either an H.T. line or L.T. line.

[24] This witness agreed that the advent of container trucks was a new problem which could be avoided if wires (power or telephone) were laid under the road, or at a greater height. Both would involve significant cost. Mr Shelton’s view was that the accident was a remote possibility.

[25] Mr Peter Brian Lake, a senior electrical engineering consultant, had no dispute with Mr Lake’s evidence. He referred to the following additional matters:

(i) The telephone lines will sag and the amount of this will differ from site to site.

(ii) The lines at the particular crossing had all been erected in accordance with accepted practice in terms of the separation between the H.T. lines and the telephone line. The latter was strung from points on the two poles which (subject to the amount of sagging) would have provided adequate clearance for even container trucks to pass underneath.

(iii) The only explanation for the incident is that the telephone wire must have sagged to such an extent that it was hit by a container truck or similar vehicle.

(iv) It would have been prudent for the defendant to carry out routine inspections and keep records relating to the state of its lines. He was not aware of any such procedures and indeed, in his written report he had noted:

Over a period of time it is clear that neither the power lines company nor the telephone company has rigorously maintained its aerial lines and overhead plant. This obviously increases the risk of failure and accidents.

(v) The bylaws which prescribe the clearance requirements between road surface and telephone line are not clear in Tonga. Previously this was 5.5 metres in 1988 Regulations. Now appears to be 4.3 metres for L.T. power lines. Telephone lines must be erected under both H.T. and L.T. lines.

(vi) A Type A truck laden with a container is 4.5 metres from road surface. The same for a Type B truck is 4.6 metres.

(vii) Even though the 5.5 clearance is no longer a legal requirement it should nevertheless have been maintained as a prudent safeguard. A reasonable height above ground is 5 metres clear of sag.

(viii) He considered these events were very rare. Personally he was still surprised the telephone wire got around the H.V. line above it.

The road crossing at the accident contact side below the 11 k.V. bare power line had an estimated clearance of 5 metres to the road. There would not have been much margin for any errors, sag in the drop wire as installed, or subsequent incidents that caught the drop wire and stretched it (but did not actually break it). Any "pre stretched" drop wire would be at risk of being subsequently broken by another "high load".

In summary the highest containers carried on a B Type truck are at a height of 4.16 metres and are a risk to overhead telephone and power lines. No maximum load heights are specified in Tonga in the Traffic Act 1988. In New Zealand the maximum vehicle height is 4.25 metres.

[27] Mr Feletiliki Tautua’a, a linesman from the defendant, had passed the accident site shortly before the incident occurred. He saw nothing amiss. On his return shortly afterwards, he saw a light from the pole – flames and smoke. The telephone wire was smoking and on fire (flames). Once wire was cut and hanging down, another was twirling around the H.T. power line which was in its usual position. The telephone line was twisted 2 or 3 times around the H.T. power line and actually touching it. It must have stretched a long way to be able to twirl around the H.V. wire.

[28] Mr Katiele Mahe, a linesman employed by the power company, later unwound the telephone line from around the H.V. line. He said he was aware of other such incidents. He had seen five such incidents. He had seen wires actually catch fire. When hit, the wire becomes disconnected from the pole and falls to the ground – usually across the road. He had also seen cases where the wire was hit but not broken. It would shake and sway, then finish in its original position but, lower because it had been stretched.

[29] Prior to 1949, a claim could not be brought in Tonga by family members related to a person who had died as a result of personal injuries. This situation was rectified by the passing of the Tongan Act in 1949. The heading of this Act states it is "An Act to provide for compensation for Families of Persons Killed in Accidents".

Whensoever the death of a person shall be caused by wrongful act, negligence or default and the act, negligence or default is such as would (if death had not ensued) have entitled the party injury to maintain a civil action and recover damages in respect thereof, then in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to an offence under the Criminal Offences Act.

Every such action shall be for the benefit of the wife, husband, parent or legitimate child of the person whose death shall have been so caused, and shall be brought in the name of the executor or administrator of the person deceased, and in every such action the court may award such damages as they may think fit having regard to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought: and the amount so recovered in damages shall be divided amongst the parties for whose benefit the action is brought in such shares as the court may direct.

[32] In the present case, the plaintiff has claimed that her deceased husband’s death was caused by the negligence of the defendant in failing to ensure that the telephone line to the deceased’s house was sufficiently protected from high voltage current being conducted through it. The particulars of the negligence were:

(a) the span of the telephone wire across the Hihifo Road was too long and it allowed the telephone wire to sage too low over the Hihifo Road thereby enabling a container on a container carrier to run into it and snapping it as it did in this case. The Commission ought to have erected its own post immediately on the south side of the road, (as it has now done since this death occurred) to shorten the span of the telephone wire across the Hihifo Road, and to run it independently of any electric wire above it (as is now the case as well);

(b) the Commission also failed to regularly check the clearance height to which the telephone wire had sagged and to lift it to a safer height above the Hihifo Road surface;

(c) the Commission ought to, but failed, to have run the telephone wire underground from the south side to the north side of Hihifo Road beneath the road surface instead, which would have been much safer.

(b) That the defendant breached that duty by failing to ensure that the telephone line did not come into contact with a high voltage power line suspended from the same poles.

(d) The injury was sufficiently proximate such that a reasonable man in the defendant’s position would have foreseen that line conduct involved a risk of injury to the deceased on to a class of persons including the deceased.

(e) The defendant failed to act as would a reasonable man in response to the risk in order to prevent the death which occurred.

[34] In this case, the parties are agreed as to how the deceased met his death. He suffered a lethal electric shock when he answered the phone in his home after the receiver cord came into contact with his chest. That contact enabled a high voltage electric current to earth through his body to the ground. The high voltage current had entered the telephone line after becoming entangled with a high voltage electric line where the two lines crossed Hihifo Road between two poles, No. 1900 on that Road, and No. 2212 on Ha’amea Road. The two lines had come into contact when the telephone line was hit, then stretched by a container truck or other vehicle of similar height dimension. This in turn necessarily implies that the telephone line must have sagged down to a level where it would impede the passage of the vehicle. The plaintiff submits that this should not have been allowed to happen. It did so because the defendant was negligent.

[35] The first issue to be determined is whether the defendant owed a duty of care to the deceased to ensure that he and other telephone users could safely answer the telephone without suffering an electric shock specifically as a result of the telephone line having become entangled with a high voltage electric wire.

(a) Should the defendant have reasonably foreseen injury to the deceased as a person who is closely and proximately affected by the defendant’s conduct?

(b) If so, are there any broader implications for the community in recognising or denying the duty?

[37] The defendant provides telephone communications. It does so by a network of telephone lines both underground and overhead. To save cost, it has been the practice for many years for telephone lines to be erected on the same posts as overhead power lines.

[38] It is well understood that the main overhead power lines conveying 6600 volts are inherently dangerous. Here, it is imperative that a separation be maintained between the telephone and power lines. This is achieved by always erecting the telephone lines under the power lines so that if these are damaged in any way this will fall to the ground without coming into contact with the power lines.

[39] Another precaution has been to ensure that the telephone lines are kept sufficiently clear of the road surface to ensure that they do not impede traffic passing underneath.

[40] For many years these precautions seem to have proved to be effective. In recent years however, a new factor has entered the equation namely, the advent of container trucks with a higher dimension than was once the case. The result has been that it is now reasonably common for such trucks to interfere with and break both telephone lines and low voltage power lines (which are also suspended under the H.V. lines) in cases where these are suspended over roads.

[41] The evidence disclosed previous instances where telephone wires were seen to be in contact with electricity lines and were burning.

[42] It seems to be obvious that, when the two wires come into contact, current would transfer from one to the other. As I understand the evidence, this current would only be for a short duration namely, until the telephone wire burned out. The volatile nature of electric current is such however, that it is unpredictable as to when and where that burnout will occur.

[43] In the present case, the experts do not seem to have had any difficulty in determining what happened. This indicates to me that it would also, not have been difficult for persons engaged in this industry to predict that:

(a) If the two lines became entangled, electric current could pass from the electric line into a telephone line.

(b) That current was of a sufficiently high voltage to cause serious harm to any person with whom it came into contact.

(c) It would not be hard to imagine (as indeed the events in this case showed) a person using the telephone could be put to serious risk.

[44] My conclusion is that if the defendant, through its employees who are qualified in this industry had sat down before the accident to review the damage being caused to its lines, and then asked "could this accident happen as it did?", the answer would have to be yes.

[45] But, even though the accident could have been foreseen as a possibility, the defence maintain that it was not foreseen as likely. One expert was surprised it had happened. I find it difficult to accept these opinions if one takes into account the frequency of damage to the defendant’s lines, the unpredictability and possible lethal effect of the current involved. Taking these matters into consideration, I consider the situation before the fatal accident was an accident waiting to happen.

[46] I therefore conclude that the defendant was under a duty of care to the deceased and other telephone users in the same situation. That duty was to ensure that the telephone lines could not come into contact with high voltage electricity lines. That duty could have been observed by such steps as laying lines under the road, erecting separate poles, exercising greater care to ensure the lines were sufficiently clear of the road.

[47] The only broader implication for the community having a bearing on whether the duty could be observed in one or other of those was in cost. I cannot see that this can be regarded as a justification to exempt the defendant from observing the duty of care. A regular inspection of all lines crossing roads to ensure these were well clear of the road at all times would suffice. Other better and more expensive safeguards could be implemented over time as and when funds became available.

[48] The evidence indicates to me that but for one important factor, the defendant had acted reasonably in relation to the overhead telephone wires. They were separated from the H.V. wires above in account with good practice and the regulations. The lines were fixed to the posts on either side of the road at a height which probably conformed to a rather confusing regulation.

[49] That one factor was the height of the line above the roadway. All the witnesses from both the defendant and Tonga Power Ltd agreed that somehow the telephone line in this case must have sagged to a point where it interfered with the passage of a container truck or like. This had caused the line to break and then entangle with the overhead H.V. wire with ultimately fatal consequences to the deceased.

[50] If this had been the only instance of a wire sagging, then it would be very difficult to find the defendant negligent. It was not the only instance. Evidence from the defendant revealed that in 2009 there had been over 500 instances of telephone lines being broken in Tongatapu. Those were for a variety of reasons but not uncommonly by container vehicles. The precise number of such cases is not known. What is known is that telephone wires (and low voltage power lines) are commonly broken by high dimension vehicles. I had the impression from those giving evidence on the point that this was almost accepted as a fact of life in the two industries.

[51] Accepting this to be the case, it follows that, if the telephone wires were either removed from above the road, or at least maintained at a safe distance above the road, then this incident would not have happened.

[52] The defendant, with the knowledge of the peril to its lines across roads from high dimension trucks, took neither of the above precautions. Cost was cited as the principal reason for not placing the wires under the road. Laxity seems to have been the reason why these wires were not maintained at an adequate height above the road. In his report Mr Lake, the expert witness called by the defendant, said (p21):

Over a period of time it is clear neither the power lines company nor the telephone company has rigorously maintained its aerial lines and overhead plant. This obviously increased the risk of failure and accidents.

[53] I therefore conclude that the defendant did breach its duty of care to the deceased in this case by either failing to properly maintain the telephone line at an adequate distance above Hihifo Road, or, taking some other precaution such as taking the wire under the roadway.

[54] In my view, had any of the precautions I have referred to been taken, it is clear that the incident would not have happened and the deceased would not have suffered the fatal injury he did.

Should the defendant have foreseen that its failure to exercise better care and procedures in relation to its telephone lines involved a risk of injury to the deceased on a class of persons including the deceased?

[55] I have already considered the issue of foreseeability in relation to this incident. I have concluded that a reasonable person having the expertise of the defendant would have been able to predict that the accident could happen. That is to say, if:

(a) precautions were not taken to ensure that telephone lines were kept separate from high voltage electricity lines;

[56] The question now is whether in such a case it is reasonable to expect a person in the defendant’s position, to foresee that a person in the deceased’s position could be at risk.

[57] The evidence was that this was considered to be unlikely. May be, but given the unpredictability of electric current and the speed at which it travels, I find it difficult to accept that a reasonable person involved in the communications industry would not accept that a person in the deceased’s position would have been at risk in the situation which arose in this case. It was all too easy to explain afterwards. The real issue was not whether the possibility was foreseeable, but rather the likelihood. I conclude that, had the defendant turned its mind to the possibilities beforehand, it would have had to agree that what did happen was possible, ie there was a possible risk to the deceased and any other telephone user in his situation.

The reasonable person test has to be applied in the light of the particular circumstances of the case in hand. The courts have identified a number of external factors influencing the reasonable person’s behaviour. In Wyong Shire Council v Shirt, Mason J provides a helpful summary of the position:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

[59] As stated in the same text at p323, "The ultimate issue is what reasonable care requires in all the circumstances of the case." In my view, if the possibility of the risk was foreseeable, then so was the foreseeability of serious harm to a particular telephone user. More importantly, the incidence of damage to telephone lines was widespread. Furthermore, there was no reason to believe it would abate. Another factor is that the users of telephones would have no reason to be on guard against this peril when using their phones.

[60] I therefore conclude the defendant should not only have foreseen the possible risk involved to a wide range of people, it should have taken practical steps to avoid the risk after it became apparent from the extent of damage being caused to its telephone lines.

[61] For all the above reasons I find that the plaintiffs claim has been proved.

[62] The Tongan Act which provides the basis for the present claim is based on the Fatal Accidents Act 1846 (UK). The New Zealand Court of Appeal referred to this Act in Pou v British American Tobacco (NZ) Ltd [2005] NZCA 381; [2006] 1 NZLR 661 C.A. at para [7] as follows:

[7] Prior to 1846, the common law did not permit an action for damages to be brought by or on behalf of the estate or family of a person who had been wrongly killed. This was altered by the Fatal Accidents Act 1846 (UK) (sometimes referred to as "Lord Campbell’s Act") which permitted claims to be brought on behalf of the spouse, parents or children of a deceased person. Very similar legislation has been enacted in many common law jurisdictions and it is customary to refer to proceedings under such legislation as "wrongful death" claims.

[63] The Tongan Act recites that it is "An Act To Provide For Compensation For Families Of Persons Killed in Accidents". Sections 2 and 3 are the principle provisions of the Act. They state:

2. Whensoever the death of a person shall be caused by wrongful act, negligence or default and the act, negligence or default is such as would (if death had not ensued) have entitled the party injury to maintain a civil action and recover damages in respect thereof, then in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to an offence under the Criminal Offences Act.

3. Every such action shall be for the benefit of the wife, husband, parent or legitimate child of the person whose death shall have been so caused, and shall be brought in the name of the executor or administrator of the person deceased, and in every such action the court may award such damages as they may think fit having regard to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought: and the amount so recovered in damages shall be divided amongst the parties for whose benefit the action is brought in such shares as the court may direct.

[64] The United Kingdom Act states (s 1(2)) the "action shall be for the benefit of dependants of the person ("the deceased") whose death has been caused". The Act includes a definition of "dependants" which includes a lengthy list of family relationships which can provide a basis for the claim. There is, however, no definition of the term "dependency".

[65] Essentially the same applies under the New Zealand Deaths by Accident Compensation Act 1952. Here however, there is a difference namely, in the definition of "dependant" and which makes it clear that with one exception the family members who are entitled to claim, may do so whether or not they were "either wholly or partially dependent upon the deceased person before his death". (The exception applies to a spouse or civil union partner who must prove that this person was "maintained or entitled to be maintained by the deceased person either wholly or partly").

[66] The Court in Pou v British American Tobacco (NZ) Ltd said at para [11] in relation to this definition:

The purpose of this provision presumably was to make it clear that actual dependency was not a prerequisite to a successful wrongful death claim".

Dependency, in a strict sense, has never been a prerequisite for a successful wrongful death claim. So damages might be recoverable where the deceased was in the habit of providing benefits for family members which lay outside the reciprocal ebb and flow of everyday family life. A parent who regularly gives his or her children substantial sums of money may provide such an example. Another example, of possible relevance to this case, involves the provision of child-minding services.

[68] The same point is made by the learned author of Salmond and Heuston, Laws of Torts, 19th ed at 652:

There is no right of action on behalf of any relative who cannot show some financial loss in consequence of the death of the deceased. There is, however, a sufficient financial loss if the claimant can show some reasonable expectation of pecuniary benefit from the continuance of the deceased’s life.

[69] I am satisfied from the above matters that even though inter alia the United Kingdom and New Zealand statutes both refer to "dependants", this does not imply that persons coming within that definition must prove that the injury suffered by them amounts to the deprivation of a pecuniary benefit which is necessary for their maintenance and support. Proof of "a reasonable expectation of pecuniary benefit" is enough.

[70] In my view the same position applies to claims under the Tongan Act with which we are concerned in this case. There is, however, no reference to "dependants" or "dependency" at all. The Act (s 3) provides for claims by the wife, husband, parent or legitimate child of the deceased. As to the quantum of damages, the same section provides, "the court may award such damages as they may think fit having regard to the injury resulting from such death ...".

[71] In the present case, the injury relied on by the claimants is the loss of pecuniary benefits which could sensibly have been expected to accrue from the deceased had he not been killed.

[72] Those benefits do not have to be proved to be such that they were necessary to support a particular claimant. It is sufficient if the claimants can show there was a reasonable expectation that they would accrue. Whether this would have been for basic maintenance or for extra, non essential items is irrelevant. In my view this point is important when it comes to considering the plaintiffs own claim in this case.

[73] The method of assessing damages in such cases is described in McGregor on Damages 17th ed at para 36-038:

The courts have evolved a particular method for assessing the value of the dependency, or the amount of pecuniary benefit that the dependant could reasonably expect to have received from the deceased in the future. This amount is calculated by taking the present annual figure of the dependency, whether stemming from money or goods provided or services rendered, and multiplying it by a figure which, while based upon a number of years that the dependency might reasonably be expected to last, is discounted so as to allow for the fact that a lump sum is being given now instead of periodical payments over the years. This latter figure has long been called the multiplier; the former figure has come to be referred to as the multiplicand. Further adjustments, however, may or may not have to be made to multiplicand or multiplier on account of a variety of factors namely, the probability of future increase or decrease in the annual dependency, the so-called contingencies of life, and the incidence of inflation and taxation. Moreover, the value of the dependency can include not only that part of the deceased’s earnings which he would have expended annually in maintaining his dependants but also that part of his earnings which he would have saved and which would have come to his dependants by inheritance on his death, and there may also be included a sum in respect of loss attributable to the cessation of contributions which the deceased, and his employers, has made to a provident fund of which the dependants were the nominated beneficiaries.

2. Then a figure by which this is to be multiplied (the multiplier) which will, inter alia, provide for a discounting to take into account the fact that the resulting sum will be paid now and not by future instalments.

[75] The deceased was earning $12,203 pa at the time of his death. At age 30, he was employed by Tonga Broadcasting Commission as a cameraman. His future employment prospects were good. He had a life expectancy of 37 years to age 67. According to the evidence, he was a devoted husband and father who neither drank nor smoked.

[76] It was submitted as a starting point it would be consistent with usual practice to assume that 25% of the deceased’s income would have been allocated to him and the remainder to his family.

[77] Some ten months after his death, the widow remarried the deceased’s younger brother. The parties agreed that, realistically, only $1,000, being approximately 20% of the second husband’s income, should be brought into account as a deduction. This left $8,000 as being the net multiplicand.

[78] The plaintiff submitted, based on the Consumer Price indices for the ten years prior to the date of death, there should be a 5% additional allowance for inflation.

[79] The plaintiff produced a calculation of the expected financial requirements of the two children to age 23 at which point it was hoped they would have completed university. I have to say I had some difficulty in understanding the purpose behind this calculation. The total estimated for the first year exceeded the amount of the deceased’s income at the time he died. The expected needs of the children increased progressively until they each became 23. On the face of it, the claim for the children far exceeded the money available on any basis. The calculation did, however, serve to prove there would be no difficulty to spending 75% of the deceased’s income each year for the benefit of his widow and two children.

[80] In addition, the plaintiff claimed the sum of $24,561 to compensate for not eventually receiving:

(b) loss of interest on what would have been the combined employer and employee contributions over 35 years 3206.35

[82] No allowance was made for discounting to take into account the early payment by way of a lump sum.

[83] The plaintiff calculated that if $320561 was invested at 5% p.a. and $8663.82 is paid out in respect of the first of the 37 years, and, that sum is increased by 5% in each year, the whole of the $320561 and all interest will be paid out after the 37th year.

[84] The defendant called Mrs Christine ‘Uta’atu, a chartered accountant with an expertise in assessing remuneration. She carried out two calculations. First, that which she had been advised was the common law position as set out in McGregor on Damages (17th Ed.); and secondly, the position under Tongan law as set out in Lei v Tonga Electric Power Board (SC) [1998] TLR 8. Mrs ‘Uta’atu assessed the first at $103,733.86. This included the following:

(a) Base net income was $9864 after deductions from tax $246.40 and superannuation 5% $493.20.

(c) Widow by reason of her own earnings (before and after deceased’s death) was not dependent and hence not entitled to claim.

(d) If only the two children were dependents then only 66% of the net income (ie $6082.23) was to be taken into account.

(e) 20% of the earnings of the second husband should be deducted earning a net figure of $5146.32 to provide the basis for the final assessment.

[85] This calculation has not brought into account a discounting factor to recognise a present lump sum payment, but it was noted that the benefit of receiving a lump sum may well be greater than a cost of living allowance.

[86] The second calculation based on the Lei decision (supra) produced an amount of $92,923.82. Basically this method was determined by splitting 75% of the future earnings of the deceased divided by the number of children and projecting out until the children reached the age of 18. Again, there was no discounting factor.

[87] This case involved a claim by a widower and his seven children following the death of the wife and mother by electrocution. She was earning $3,000 pa at the time of her death.

[88] $20,000 was claimed on behalf of the widower, and $5,800 for the seven children based on housekeeping expenses.

[89] The Court referred to the principles stated by Lord Wright in Davies v Powell Duffryn Associated Collieries Ltd [1942] 1 AER 657. The Judge allowed the widower’s claim for $20,000 by multiplying the deceased’s annual earnings ($3000) by the period of her life expectancy (20 years) ie $60,000. He concluded that the $20,000 claimed meant an allowance of $40,000 for contingencies, which seemed excessive. The $20,000 was therefore allowed to meet the widower’s claim without any further examination.

[90] As to the children’s claim, it was held that $5,800 was a reasonable assessment of what the children had lost. Therefore this amount was then apportioned between the children ie $829 each and then multiplied by the number of years each of them needed to reach 18. This formula produced a total of $47,518.28.

(b) No account was taken ie by way of discount, for the fact that there were two lump sum payments in advance.

[92] In the present case I think the defendant was submitting the law in Tonga relating to the assessment of damages in wrongful death claims was different from the law in the United Kingdom and, as this is set out in McGregor on Damages. In particular:

(a) Claims by children are limited to anticipated pecuniary losses only up to the age of 18.

(b) Where a widow has an income in her own right, she is precluded from claiming under the Act.

[93] I do not consider the decision in Lei can be relied on as authority for either of these propositions. This was an unusual case in that the deceased was not the principal breadwinner in the family. Her total income was only $3000 per annum. The Judge considered that this justified a lump sum payment of $20,000 to the husband. The claim on behalf of the children was based on their actual dependence on the mother. That was quantified in money terms as being the value of housekeeping until each child attained 18 years of age.

[94] As I have already noted, a claim under the United Kingdom and New Zealand Acts does not depend on actual financial dependence on the deceased. I confirm my view that the same applies under the Tongan Act. In the Lei case, however, the children could not point to any economic loss other than a claim based on actual dependence on their deceased mother, which was assessed on the basis of the value of housekeeping. The Judge considered in those circumstances that it was only reasonable to recognise that such a claim could not continue beyond age 18.

[95] The important point to make is this finding did not amount to a finding that any claim by a child could not go beyond age 18. There could well be circumstances where a mature child well over 18 could point to a reasonable expectation of some pecuniary benefit from a deceased parent.

[96] The second matter is the question of the wife’s separate income in this case. McGregor on Damages 17th ed refers to this issue at para 36-046:

What, however, does remain clear is that, where the wife has been working before as well as after the death so that her earnings were already contributing to the family pool, the earnings after the death do fall to be taken into account. This has never been doubted and was the position in Cookson v Knowles itself. The manner in which this affects the calculation of the dependency was usefully dealt with in the unfortunately unreported decision in Coward v Comex Houlder Diving. It had there been submitted by counsel for the wife that, in the absence of evidence of a different dependency, both husband and wife should be able to claim to be dependent to the extent of two-thirds of the other’s net earnings. Ralph Gibson L.J. was quite unable to accept such a contention; it was unrealistic not to bring into the equation the whole of the wife’s continuing net earnings against the two-thirds of the joint net earnings. "Expressed in terms of a formula", he said, "the claimant’s dependency...is two-thirds of [the deceased’s] net earnings less one-third of her own net earnings; or it is two-thirds of the joint earnings less her own earnings." Mathematically the conventional 66.6 per cent of the husband’s net earnings is on this basis modified to produce for the widow just 50 per cent of those earnings should her own earnings in the joint pool equal half of her deceased husband’s; the percentage would drop to 33.3 should she be earning as much as her husband.

[97] In my view, it is clear that a spouse does not automatically lose a right to claim under the Act merely because he or she has a separate income. Indeed in Lei the claimant widower earned $7,400 per annum. This fact was not mentioned or taken into account when assessing the two lump sums let alone as a bar to the successful claim by the widower.

[98] I am satisfied that the extent to which such a separate income should be taken into account is ultimately dependent on the facts of the particular case.

[99] For the foregoing reasons I find that the Lei decision is quite consistent with the law in the United Kingdom and for that matter New Zealand.

[100] It is convenient at this point to refer to the significance of the widow’s remarriage. I have referred to the fact that both parties agreed $1,000 should be deducted from the basic amount used to calculate the loss. The purpose being to recognise the benefit to the claimant’s now contributed by the widow’s new husband. I have to say that I do not consider such an agreed concession is appropriate in this case.

[101] The position under the United Kingdom Act is quite clear. Section 3(3) as enacted in 1982 states:

In an action under this Act where there fall to be assessed damages payable to a widow in respect of the death of her husband there shall not be taken account the re-marriage of the widow or her prospects of re-marriage.

Even before this change was made, the courts had on occasions determined that it was inappropriate for the courts to have to make an assessment of a widow’s chances of remarriage. (See Buckly v John Allen & Ford [1967] 2 QB 637).

[102] The Tongan Act does not include an equivalent of the above subsection. Furthermore, because the position in the United Kingdom is now determined by statute, the Tongan Civil Law Act does not apply so as to incorporate ss 3(3) with Tongan law.

[103] The answer to my mind is that the issue under Tongan law now falls to be decided entirely within the context of the Act namely, as a matter of discretion under s 3. When doing so, this court may take into account the earlier United Kingdom decisions such as Buckley.

[104] I consider the evidence in this case provides ample reason for the court to conclude that the second husband’s income should be entirely ignored when calculating the losses in this case.

(a) According to his evidence, he is employed as a panel beater earning $180 per fortnight ($4,680 pa). He spends $250 per week on drink. He also smokes. He does have some other private work. He "pays some electricity sometimes – nothing else".

(b) I have difficulty in seeing how it can be said that the widow and children’s financial position has improved by reason of the widow’s remarriage to such an extent that this justifies a reduction of the basis sum which is to be used as a basis for the calculation of this claim.

(c) There is a further imponderable which justifies ignoring the second husband’s present income. He and the widow are both young people. There must be a sensible prospect they will have children of their own. Two consequences will follow:

[105] The starting point is to determine the amount of the pecuniary benefit provided by the deceased at the time of his death. This case has been based entirely on his actual earnings at that time. I find on the basis of the exhibit at p 29 of the plaintiffs documents, this was $12,203 (less tax approximately $510 = $11,693). The widow’s salary was, and is, $8,088 (less tax approximately $200 + $7,888).

[106] The plaintiff submitted 5% being the deceased’s employer’s superannuation contribution should be added to this sum ie $12,203 + $610 = $12,813.

[107] The defendant submitted on the other hand, that the deceased’s contribution of 5% should be deducted
ie $12,203 - $610 = $11,593.

[108] I disagree with the defendant’s submission. It seems quite illogical to me for the claimants to suffer twice ie by not getting the superannuation benefit at all and then, as well be penalised for a contribution which would not now produce any benefit. For this reason I agree with the plaintiff namely, only the employer’s contribution should be taken into account. According to McGregor para (36-038) this adjustment can be done either by adding 5% when identifying the multiplicand or by a separated calculation. In the absence of any guidance on the point, I elect to adopt the former method.

[109] Had it not been for the existence of the widow’s earnings, the authorities generally indicate that the deceased’s net income after tax of $11,693 would be allocated 25% ($2,933) to each of himself, his wife, the children, and jointly. The starting point for the multiplicand would therefore have been $2,933 x3 = $8,769.75.

[110] I have already held that the second husband’s earnings should not be brought into account (para [104]). The widow’s separate earnings are an issue which has caused me real difficulty. Depending on particular circumstances, the courts have adopted a number of mathematical calculations to take this factor into account (see para [96]).

[111] On the basis of the limited evidence adduced on this point, I have formed a clear impression the deceased, his wife and children, were a close family unit. Their joint incomes were applied for the benefit and advancement of the family. A major part of their income was going towards the purchase of a car which would presumably have been of considerable benefit to the family. The widow spoke of an intention or hope held by both she and the deceased, that the young boys would go on to university. Having visited their home, albeit briefly, and heard and seen the plaintiff, I have gained no impression of an extravagant lifestyle. On the contrary, I gained the clear impression the deceased and the widow had determined that their main objective was the care and education of their two sons. Whilst they were both alive, and assuming both children were in fact able to achieve a university education, this objective was in money terms clearly attainable, given both parents were earning. In this context, I accept that both sons could reasonably expect to have received assistance from their parents until completing a university education at age 23.

[112] Compensation can be provided in respect to the lost income from the deceased but, the difficulty is in assessing to what extent the widow’s income will continue to be in the future. She is employed at present and is also studying to complete a journalism course which could increase her income. She is, however, the person who will be primarily responsible to raise the children. Whether she will be able to maintain fulltime employment is an open question.

[113] One other factor is the question of accommodation. The evidence was that the deceased and his family lived free of rent in a dwelling owned by another family member, and, this arrangement is expected to continue.

[114] Having considered all the above matters, I conclude that the multiplicand in this case should be reduced initially by 20% of the widow’s after tax income to take into account her own personal expenditure.

	$
Income	8,088
Less tax	200
	7,888
-20%	1,578

[115] In summary, I consider the initial multiplicand should be calculated as follows:

	$
(a) Deceased’s income	12,203
(b) Less estimated tax	510
	11,693

(c) Add 5% employer’s
superannuation contribution	585

(d) Less 25% for deceased’s
personal use	3,070
	9.210
(e) Less 20% of widow’s
separate income	1,578
	7,632

[116] The total basic multiplicand must be allocated between the widow and his children. I calculate this as follows:

[117] The claim on behalf of the children is based on a period of actual financial dependency ie until they are expected to have completed a university education. At that point, it is reasonable to expect that the deceased’s income would have been reallocated between him and his widow. This then requires a recalculation of the multiplicand in order to assess the widow’s loss alone from that point.

[118] I consider an appropriate assessment would be to divide the income equally between the deceased, the widow and joint expenditure. Assuming the widow’s income should also be regarded on the same basis, the following results:

[119] Both parties submitted an adjustment should be made for inflation. Neither party made provision for a discounting of the multiplicand to take into account the benefit to be obtained by a lump sum payment in advance. In the United Kingdom Act, no provision is made for inflation in these cases. The reason for this being the use by the courts in the United Kingdom of the "Actuarial Tables With Explanatory Notes for use in Personal Injury and Fatal Accident Cases", commonly known as the Ogden Tables.

[120] These Tables provide inter alia for the discounting of lump sum payments in fatal accident cases. The discounting factor includes recognition of a 2½% factor for inflation geared to index-linked United Kingdom government securities. Absent any other assistance, I have adopted the Ogden Tables for my calculations. I have therefore made no separate calculation for inflation.

[121] Section D of the 6th Edition of the Ogden Tables refers to the application of the Tables to Fatal Accident Cases. At p 23 it sets out "Approach currently usually adopted by the Courts".

[122] The starting point is to determine the expected period from date of death in which the deceased would have been capable of providing the dependency. In this case, the deceased died at age 30. According to the 2006 Tongan Census, he had a life expectancy until age 67.3. I am not clear from the evidence when he would have retired. I therefore select age 65 which in turn means the period under this head is 35 years.

[123] Step 2 is to discount that period for early receipt using the appropriate table as at date of death and a discount rate of 2.5%.

[124] The appropriate table in this case is Table 9 (multipliers for loss of earnings to pension age 65 (males)). For age 30, the figure is 22.78 which produces the sum of $173,857 ie basic multiplicand (para [116]) $7,632 x 28.78.

[125] Step 3 is to apply any adjustment to the above figure to reflect contingencies other than mortality. There was no evidence adduced under this head.

[126] Step 4 is to determine the expected period from date of death for which each of the claimants would have been able to receive dependency. In this case, applying the 2006 Tongan Census figures, each of the three claimants have life expectancies well beyond 35years.

[127] The widow was 27 years of age at the date of death. A further 35 years takes her to age 62. However, her calculation has to be considered separately for two periods:

[128] The expected period during which the two boys can be expected to benefit are respectively:

[129] The fifth step is to discount the above periods for early receipt using the appropriate table as at the date of death at a discount rate of 2.5%.

(a) Covering the period up to when the two children became 23. The average period is 20 years. During this time the widow’s multiplicand is $1,492 (para [116]. Table 28 provides a multiplier for 20 years of 15.78 = $23,544.

(b) The balance of the period to when the deceased would have turned 65 ie 37-20 = 17 years.

During this period the multiplicand is $5,556 (para [118]). Table 28 provides a multiplier for 17 years of 13.88. This loss is however, postponed for 20 years. Table 27 provides calculations in cases where the loss is deferred. The calculation for a 20 year defendant is .6103. The resulting overall multiplier is 13.88 x .6103 = 8. This provides a calculation of 8 x $5,556 = 44,448.

[133] The sixth and seventh steps are to adjust the calculations referred to in paras [128] to [132] to reflect contingencies other than mortalities. As I have already noted, there is no evidence advanced on this point.

[134] The eighth step is to subtract the period elapsed from date of death to trial. Losses in this period are to be treated as in effect special damages and will attract an award of interest.

[135] In this case, the trial concluded on 28 November 2009. Due largely to the fact I have been required to undertake a considerable amount of research myself, this decision has been delayed for longer than I would have preferred. In the circumstances (and to simplify calculations), I have decided that the pretrial period should be fixed at two years but, to compensate for this, there should be no allowance for interest over that period.

(d) The plaintiff is also entitled to costs, court fees, witness expenses and other costs, if any, reasonably incurred. All the above to be settled if necessary by the Registrar.

(e) I direct that the awards in favour of the two children are to be invested in the name of trustees on their behalf. This will call for discussions as to who will be the trustees, where the funds are to be invested and whether any balances in the funds are to be paid out to the children when they each reach the age of 21 rather than 23. Prior to that time, the trustees will be responsible for authorising payment from the funds in respects of the boys’ maintenance, education and advancement.

[139] I have discussed the position with His Honour the Chief Justice. Having done so, I now direct that this matter is to be brought on before His Honour to enable directions to be made covering the matters I have referred to, plus any others which may arise.

Supreme Court of Tonga

Fonokalafi v Tonga Communications Corporation Ltd [2010] TOSC 3; Civil Case 142 of 2008 (1 March 2010)