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High Court of Fiji |
IN THE HIGH COURT OF FIJI
At Labasa
Civil Jurisdiction
Civil Action No. 0068 of 1994
Between:
HEM RAJ
s/o Ram Tahal as Administrator
of the Estate of Anil Dutt s/o Hem Raj
Plaintiff
- and -
NETANI VATEITEI
COMMISSIONER NORTHERN DIVISION
ATTORNEY GENERAL OF FIJI
Defendants
Mr. K. Vuataki & Mr. S. Prasad for Plaintiff
Mr. J. Udit for Defendants
------------------oOo------------------
Civil Action No. 0068 of 1995
Between:
RANJANA DEVI
d/o Indar Sen as Administratrix
of the Estate of Shyam Narayan Pratap s/o Moti Lal
Plaintiff
- and -
ATTORNEY GENERAL OF FIJI
NETANI VATEITEI
Defendants
Mr. S.C. Verma for Plaintiff
Mr. J. Udit for Defendants
------------------oOo------------------
Civil Action No. 0064 of 1996
Between;
SAGAR LAL
s/o Moti Lal
Plaintiff
- and -
NETANI VATEITEI
COMMISSIONER NORTHERN DIVISION
ATTORNEY GENERAL OF FIJI
Defendants
Mr. S. Prasad for Plaintiff
Mr. J. Udit for Defendants
JUDGMENT
Although there are 3 separate claimants and court files it is convenient to deal with all claims in this one judgment for the following reasons:
(1) The claims arise out of the same motor vehicle accident;
(2) The defendants and defence counsel are the same in all 3 claims;
(3) Liability has been determined against the defendant by a single judgment delivered by Scott J. (as he then was) on 2nd September 1999 in Labasa in Civil Action 0064 of 1996 in which his lordship adjudged that ‘the sole responsibility for this accident was the first defendant’ (Netani Vateitei);
(4) Judgment was entered by consent in the two remaining Labasa Civil Action Nos: 0068 of 1994 and 0068 of 1995 (previously Suva Civil Action No: 395 of 1994) on 20th March 2000; and
(5) All three assessment hearings occurred over the space of 3 consecutive days in September 2001.
I am grateful to counsels for the comprehensive written submissions filed in all 3 claims which have considerably assisted me in writing this judgment.
SAGAR LAL s/o Moti Lal
This claimant was the driver of the second vehicle involved in the accident that occurred on 10th January 1994. Although he survived the accident his two passengers were not as fortunate.
As a result of the accident the claimant lost consciousness. He suffered severe chest and abdominal injuries which required major emergency surgery and hospitalization for 13 days before he was well enough to be discharged as an outpatient.
The Labasa Hospital medical report records that on admission the claimant:
“........ had multiple fractures of the ribs (L) chest wall, tear of the diaphragm, herniation of the stomach into the chest cavity, rupture of the spleen and bleeding of the left chest.
He underwent major thorao-abdominal procedure – reduction of stomach and spleen of the abdominal cavity, splenectomy and closure of the torn diaphragm.”
On discharge the claimant was assessed with a 25% total disability.
A more recent medical report dated 23rd April 2001 records that the claimant continues to suffer from:
“(1) Burning sensation (in the) upper abdomen with pain after meals and at night (suggesting) the development of peptic ulcer disease and esophageal reflux (for which) he is on continuous medication;
(2) Generalised joint pains requiring analgesics; and
(3) Paroxysmal severe chest pains on operation site.”
The latest medical report concluded with an assessment of the claimant’s total disability at 40%.
Interestingly the report noted inter alia under the claimant’s Social History that “(he) had voluntarily severed himself from his previous employment because he found the work ‘too heavy’. He is presently self-employed – managing to find small jobs for his upkeep.” This entry was not relied upon or drawn to the Court’s attention by defence counsel either orally or in the written submissions.
On 10th December 1996 the claimant issued proceedings claiming:
“(1) (unspecified) Special damages $50,000.00
(2) Hospital expenses and travelling $500.00
(3) Suffering pain $10,000.00
(4) Loss of earnings $2,640.00
(5) Costs
(6) Other relief as may deem just and expedient.”
Noticeable by its absence is a claim for interest on damages. This was subsequently rectified in an amended Statement of Claim filed on 9th May 2001.
For present purposes the following are the agreed facts in this case:
“(a) At the time of the accident the Plaintiff was a supervisor employed by the Lautoka Electric Company Ltd.
(b) He was a regular contributor to F.N.P.F.
(c) Plaintiffs annual salary was as follows:
1993 - $6346.60
1994 - $6913.58
1995 - $7441.31
1996 - $7629.50 upto 26.10.1996
and if he had continued to work till 31.12.96 he would have been paid a salary of $9226.89 for the Income year 1996.
(d) That his service was terminated on 25.10.96.
(e) That the medical assessment of permanent disability is accepted at 20% by consent.
(f) That the Plaintiff was born on 18.06.1965 and that his age was 28 years at the time of the accident.
(g) That the Plaintiff was married with 2 children namely:
Jayshline Bandana (f) 20.12.88
Kunal Krishneel Lal (m) 03.05.91
(h) Special Damages of $550.00 was incurred for travelling expenses, Home assistance and Special Diet.
(i) Plaintiff’s wife committed suicide on 26.10.96.”
At the assessment hearing on the 27th September 2001 the claimant testified in support of his claim. He spoke of his employment history with Lautoka Electric Co. since 1991 where he was a supervisor and how he had received salary increases every year until he was terminated on 25th October 1996 “........ because the company wanted a person who could go to its job sites and I couldn’t do that.” He admitted being assigned to lighter office duties when he returned to work after 4 or 5 months of recuperation and being paid by his employer during all that time.
He said prior to the accident his future prospects with his employer was very good and he was destined to became the Labasa Branch Manager. His family life was also very happy and he enjoyed normal sexual functions. He played soccer and swam and enjoyed alcohol. All this changed after the accident.
He lost his job, sexual relations with his wife declined because he was always in pain and he no longer partook of his normal social and sporting pastimes. He suffered from gastric and bad breadth. He still suffers from chest pain and discomfort especially during cold weather and regularly seeks medical treatment. He still has three scars on his chest and abdomen from the operations he underwent as a result of the accident.
In particular, the claimant testified that when he lost his job he told his wife about it and “she became very depressed and the next day in the afternoon she hanged herself.” He had to charter a plane at considerable expense to take his wife’s body from Suva to Labasa where she was cremated. In respect of this incident he claims funeral expenses and bereavement.
In cross-examination the claimant admitted that he had registered an electrical business under the name and style Lal’s Electrical Services several months after his termination from which he earned about $2,000.00 annually as well as a small fee for signing permits as a licensed electrician. He relies on his cousin however to operate the business as he cannot perform the manual work normally required of a wireman such as heavy lifting, climbing ladders and crawling and working in confined spaces such as above ceiling areas.
Rather interestingly the claimant admitted in cross-examination that after his wife’s suicide and despite his physical condition, he had remarried in January 1999 albeit that he did not have any children from this second marriage. He now lives in his brother’s home in Suva and his children with his wife’s parents in Labasa.
I propose in assessing the damages in this case to adopt some of the headings conveniently listed in the claimant’s written submissions filed by his counsel. In particular:
(1) Under Special Damages:
- (a) Hospital expenses and travelling costs;
- (b) Loss of past wages; and
- (c) Interest on Special Damages.
(2) Under General Damages:
- (a) Pain and suffering, scarring and loss of amenities;
- (b) Loss of future earnings and/or earning capacity.
- (c) Loss of F.N.P.F.;
- (d) Interest on General Damages;
(e) Other Sundry Claims.
Special Damages:
(a) Hospital Expenses and Travelling Costs
As agreed I award a sum of $550.00 for hospital and traveling expenses incurred by the claimant after his discharge from Labasa Hospital as an out-patient.
(b) Loss of Past Wages
For loss of earnings the claimant claims the wages he would have received had his employment not been terminated. Up till then it is common ground that he continued to be employed after the accident and was duly paid his wages for almost three years i.e. 1994, 1995 and 1996 until 25.10.96 when his employment was terminated.
State Counsel submits however that the claimant is not entitled to an award for loss of past wages as he had continued to receive his normal wages until the 25.10.96 when he voluntarily left his employment ‘to start his own business’. I disagree.
Whether the claimant left his employment of his own volition (which is denied) or was terminated by his employer, the fact remains that as a direct result of the accident the claimant was permanently incapacitated and could no longer carry out the physical and manual requirements of his employment. Needless to say the claimant’s eventual departure (to adopt a neutral term) was an inevitability in the circumstances and an award of special damages is entirely appropriate. I am also mindful that despite defence counsel’s submissions to the contrary the ‘termination’ (not voluntary resignation) of the claimant’s services on 25.10.96 was an agreed fact and cannot now be challenged.
I also accept and adopt in this latter regard the figures and calculations of counsel for the claimant which were based on the claimant’s annual income tax assessments as well as taking into account relevant mitigating earnings of the claimant during the period when he ceased to be a paid employee (26.10.96) until the date of trial (27.9.01) during which time he was receiving income from a private electrical business registered by him.
Needless to say given the claimant’s age, state of health, and promotional prospects with his former employer there is no doubt in my mind that, but for the accident and the injuries he sustained in it, the claimant would have remained in paid employment and continued to receive at least the same level of salary that he received in 1996. Accordingly, for loss of past earnings and medical expenses I award the claimant the total sum of $31,822.32 by way of special damages.
(c) Interest on Special Damages
I also award interest on special damages at the rate of 3% (accepted in defence counsel’s submissions) from the date of the accident (10.1.94) to the date of trial (27.9.2001) i.e. 6 years 9 months giving a sum of: $(31,822.32 x 3% x 6.75 years) = $6,444.02.
General Damages:
(a) Pain and Suffering, Scarring and Loss of Amenities:
Under this head the claimant seeks $60,000 and defence counsel submits that a sum of $15,000 would be ‘appropriate and reasonable’.
In this regard I am satisfied that in the immediate aftermath of the accident and during the period of his stay in hospital the claimant suffered a great deal of pain and discomfort from his injuries which can only be described as severe, as well as from the knowledge that he had lost his spleen and was permanently disabled for the remainder of his life.
I am also mindful that the claimant continues to experience pain in his joints and chest eight (8) years after the accident for which he regularly takes pain killer medication and treatment. He has also developed gastritis and bad breadth which affected his relations with his wife and friends who commented on it.
He continues to carry the operation scars 3 in number measuring between 10 and 21cms as painful visible remainders of the accident albeit that these can be concealed under a shirt or vest. There can be no denying also the inevitable sense of guilt and sadness of losing a brother and a friend who were passengers in the car being driven by the claimant at the time of the accident.
Doing the best I can I award the claimant the sum of $30,000.00 for pain and suffering, scarring and loss of amenities.
(b) Loss of Future Earnings
Under this head claimant’s counsel forcefully submits that ‘although medically the plaintiff suffers a disability of 20% his ability to work as a wireman will be reduced by at least 50%. He will never achieve more than 50% of his full potential’. He proposes a multiplier of ‘18’ and a multiplicand of $8,000 based on the claimant’s nett annual wages at the time of his termination.
Defence counsel equally forcefully submits that there should be no award for loss of future earnings since the plaintiff has a business operating in Suva earning probably more than his wages. Alternatively, a multiplicand based on his past wages should be applied with a multiplier of ‘10’. From this should be deducted the amount the claimant earns from his electrical business.
I am satisfied that the claimant’s loss of future earnings is the difference between his potential nett earnings as a wage earner and the actual earnings received from his private electrical business i.e. $(8,000-2,500) = $5,500.00 p.a. (the ‘multiplicand’).
In fixing an appropriate ‘multiplier’ in this case I have considered all the circumstances including the age of the claimant at the date of the accident and at trial; his approximate remaining working life; the agreed assessment or level of incapacity or disability; the extent and nature of the claimant’s injuries; and the fact that a once only lump sum is being awarded.
I am satisfied that the appropriate multiplier in this case is a figure between ‘18’ (as claimed by the plaintiff) and ‘10’ (as advanced by defence counsel) and which I fix at ‘13’.
There will therefore be an award of general damages of $(5,500 x 13) = $71,500 for loss of future earnings which in terms of the claimant’s actual agreed disability translates into a sum of $(20% of $71,500) = $14,300.
(c) Loss of F.N.P.F.
In this regard the plaintiff claims loss of past and future contributions and defence counsel concedes that 8% is payable on any award for loss of past and future earnings being the employers contribution to F.N.P.F. had the plaintiff continued as a wage earner.
Accordingly I award the plaintiff the sum of: $(31,822 + 14,300) = $(46,122 x 8%) = $3,689.76 under this head.
(d) Interest on General Damages
In this regard although the plaintiff claims interest on loss of future earnings this cannot be allowed (see: Attorney General v. Charles Valentine Civil Appeal No: ABU0019/98) as the plaintiff cannot be said to have been kept out of future earnings unless and until an award is made.
However interest is plainly claimable on the award for loss of F.N.P.F. ($3,689.76) and for pain and suffering, scarring and loss of amenities ($30,000.00). I award interest at a rate of 6% from the date of issuance of the Writ (10.12.96) to the date of trial (27.9.01) i.e. 4 years 9 months. Interest on these sums (rounded up) amounts to: $(33,690 x 6% x 4.75 years) = $9,601.65.
(e) Other Sundry Claims
Under this head I include the plaintiff’s claim for Bereavement, Loss of Consortium and Funeral Expenses which relates to the tragic suicide of the claimant’s wife the day after his employment was terminated. These claims are based on an assertion by the claimant: “that there is a very close proximity between the accident and the death of his wife”. I disagree.
In my view these claims bear no direct causal relationship to the accident and are far too remote to support an award of damages. The wife’s suicide occurred some three (3) years after the accident and on the plaintiff’s own evidence was directly related to news of the termination of his employment. Their marriage had also deteriorated for some time leading up to her eventual suicide.
This is not a claim for the death of a wife who personally witnessed a road accident involving her spouse or on learning of the road accident soon after it had occurred, rather, this is a case of admitted suicide the reason(s) for which remain unknown.
No damages are payable in respect of these sundry claims and I so hold.
IN SUMMARY
Special Damages:
$
(a) Agreed Hospital expenses and travelling costs - 550.00
(b) Loss of past earnings - 31,822.32
(c) Interest @ 3% on Special Damages - 6,444.02
----------------
Sub-total = $38,766.34
----------------
General Damages:
$
(a) Pain and Suffering, Scarring and Loss
of Amenities - 30,000.00
(b) Loss of Future Earnings (20% disability) - 43,000.00
(c) Loss of F.N.P.F. Contributions - 3,689.67
(d) Interest @ 6% on (a) & (c) above - 9,601.65
----------------
Sub-total = $57,591.32
TOTAL AWARD : $(38,766.34 + 57,591.32) = $96,357.66
========
The claimant is also granted costs which are summarily assessed at $1,500.
------------------oOo------------------
HEM RAJ s/o Ram Tahal
This claimant is the father and personal representative of Anil Dutt (the deceased) who was one of the passengers in the car driven by Sagar Lal who died in the road accident on 10th January 1994.
The claimant by his amended Statement of Claim seeks damages under the Law Reform (Miscellaneous Provisions) Act (Cap. 27) and also pursuant to the Compensation to Relatives Act (Cap. 29) for the benefit of the claimant who is the sole surviving parent of the deceased. He also seeks interest on any damages
awarded.
The following are the Agreed Facts in the claim:
“1. The Plaintiff is the father of the deceased, Anil Dutt, who is suing as the Administrator of the Estate of the deceased for his benefit and the deceased’s mother.
5. At all material times the business was operational.
Likewise the following are the Agreed Claims:
“a. Funeral Expenses - $1,000.00
b. Damages under Law Reform
(Miscellaneous Provisions) Act
(Cap. 27) for loss of Expectations
of Life - $1,800.00”
In Daya Ram v. Peni Cara (1983) 29 F.L.R. 147 Speight J.A. writing for the Court of Appeal explained the basis of the statutory claims as follows (at p.149):
“........ an award to dependants for the loss of support which they would have been entitled to expect had there not been the death of the bread-winner ........ are brought in Fiji under the Compensation to Relatives Act (Cap. 29) ........ Such a claim is calculated by examining the amount of money which dependant relatives had been receiving in the past for their support and which they might legitimately have expected to have received in the future provided the deceased had had the means to make such payment and could have been expected to continue making them. This is a purely mathematical calculation of how much he would have been worth in money terms to his dependants for whatever was the expected period of dependency.”
A claim for loss of earnings for ‘the lost years’ is quite different and finds its justification in Section 2 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Cap. 27) and Speight J.A. explains:
“The claim is brought ........ for the benefit of the estate in respect of all causes of action which the deceased had at the time of his death ........ In the case of a man who is injured and dies the cause of action for the lost years vests in the deceased when he is injured and in the case of instantaneous death immediately before his death, and after death passes to his personal representatives.”
Later in his judgment Speight J.A. conveniently identified the relevant questions in a claim for ‘lost years’ (ibid at p.151) as follows:
“The questions are:
(a) What is an appropriate number of years to count as lost?
(b) What is an appropriate estimate of his ‘surplus’ funds over and above his personal living expenses in those years?”
I am mindful however that “........ it is clearly established that (a claimant) is not entitled to recover damages amounting to a total of what could be claimed under each Act. If for example, (a claimant) is held entitled to a sum under the Law Reform Act then that sum must be taken into account in assessing the entitlement under the Compensation to Relatives Act” per Marsack J.A. in Somari v. Attorney General Civil Appeal No. 0026 of 1980.
Accordingly I propose to confine myself to assessing damages under the Compensation to Relatives Act (Cap. 29) which accurately reflects the entire thrust of the claimant’s evidence before the Court.
In Court the claimant testified that in 1991 he had started a business of supplying sand in Labasa which was being managed by the deceased at the time of his death. From the business the claimant and his wife received about $500.00 per week paid into their hands. No business records or accounts were provided in support of this claim which remains an entirely verbal assertion. The deceased was also paid a nett wage of $100.00 per week for managing the business and of this he used about $40.00 on his own personal expenses and the remainder he contributed to the household for groceries.
All this changed after the deceased died.
“...... the $500.00 stopped coming. Also his $60.00-$70.00 contribution to the home. The sand business went into bankruptcy because (I) couldn’t run it. I was also sick with diabetes and high blood pressure and (since the deceased’s death) now suffer from stroke.”
He said that the deceased who was aged 23 years at the time of his death
‘was in good health and a mechanic. He was never admitted to hospital since birth nor had any sickness from childhood. He was a teetotaller and didn’t smoke.”
He accepted in cross-examination that the deceased owned a car and that it was quite likely that the deceased would eventually marry. He admitted that talks had been held in that regard though nothing eventuated. He planned to give his son a block of land near the family home after his marriage to enable his son to start his own home and presumably continue to live near and support the claimant.
The nature and extent of the claimant’s dependency on the deceased is conveniently set out in the amended Statement of Claim as follows:
“The deceased was managing the family business of selling sand and cultivation of a one hundred acre farm in the Daku Sector in Labasa. The sand business was grossing $1,000.00 a week. After deductions of expenses and $100.00 for deceased’s salary, the plaintiff was dependant on $500.00 for him and his wife per week. The plaintiff was also dependant on one third share of nett proceeds of the said farm Number 7348 which farm was then in the name of his wife Dharam Raji and particulars of nett proceeds to be adduced at trial.”
In his testimony however there was never any mention of a farm let alone the nett proceeds from it nor for that matter has anything been said about it in counsel’s written submissions. No award is possible in respect of this wholly unsupported claim.
Defence counsel submits also that the $500.00 weekly payment to the plaintiff and his wife should be ignored altogether because it represents ‘(the plaintiff’s) drawings from the business’ and also ‘because it was not the deceased’s money or provision of financial support’ and any financial support provided to the claimant could only come from the deceased’s separate income or earnings which was ‘a salary of $100.00 per week’ (see: agreed fact No. 4).
After careful consideration I accept defence counsel’s submission that the loss of income from the business (i.e. $500 per week) cannot be attributed to the deceased for the reasons so fully and carefully canvassed in counsel’s written submissions including the following:
“(i) the business according to the plaintiff’s evidence was his and not the deceased’s;
(ii) the business did not die with the (son). To the contrary the business continued even after the son’s death albeit for a short time;
(iii) the deceased on the plaintiff’s evidence was ‘paid a salary of $100.00 per week’ presumably as an employee of the business;
(iv) the business eventually collapsed when the sole barge used to cart the sand, sank with its winches;”
As was said by Williams J. in Bhagwandei v. Yankatesh Naidu and Others Lautoka High Court Civil Action No. 0024 of 1976 (unreported), in rejecting a similar claim (at p.9):
“The farm is the plaintiff’s farm and it did not die with the deceased. It is still there, it can still be cultivated; it can still produce cane, rice, tobacco, vegetables and so on. Labour can be hired in place of the deceased to cultivate it.”
Likewise in this case the plaintiff’s sand supply business did not die with the deceased. The other ten (10) employees and principal income-producing assets i.e the boat and barge still existed and the business could have continued to operate under a new manager. The failure to hire a replacement manager after the deceased died was a decision of the plaintiff’s which began the decline of the business. This absence of any replacement management was a major contributing factor that led to the eventual demise of the business according to the evidence of the two employees who testified on behalf of the claimant.
I am satisfied that of his weekly earnings of $100.00 the deceased would have given the claimant less than half his nett earnings i.e. $40.00 per week which translates into an annual dependency of $(40 x 52) = $2,080.00.
I am also satisfied given the deceased’s age and the accepted likelihood of marriage that the claimant’s dependency, on the deceased, would not have lasted for longer than 6 years. Needless to say the claimant has 5 other older children who he admits have supported him financially since the death of the deceased.
Accordingly I award the claimant the sum of $(2080 x 6) = $12,480.00 in general damages which is reduced by the sum of $1,800 being the agreed amount for the deceased’s loss of expectation of life, giving a nett dependency award of $(12,480 -1,800) = $10,680.00. On this sum there will be added interest at the rate of 5% (agreed by defence counsel in his written submissions) calculated from the date of filing of the Writ (16.12.94) to the date of hearing (26.9.2001) i.e. approximately 6.75 years giving a sum of: $(10,680 x 5% x 6.75 years) = $3,607.60.
In Summary
$
(i) Funeral Expenses (as agreed) - 1,000.00
(ii) Loss of Expectation of life
(as agreed) - 1,800.00
(iii) Loss of Dependency for 6 years - 10,680.00
(iv) Interest @ 5% on (iii) above - 3,604.50
---------------
TOTAL - $17,084.50
======
The claimant is also entitled to costs which are summarily assessed at $1,000.00.
------------------oOo------------------
RANJANA DEVI
This claimant sues as the widow and administratrix in the Estate of her late husband Shyam Narayan Pratap s/o Moti Lal (the deceased) who died in a road accident on 10th January 1994. At the time the deceased was a passenger in a vehicle being driven by his elder brother Sagar Lal.
Liability is accepted and only damages remains to be assessed under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Cap. 27) and the Compensation to Relatives Act (Cap. 29).
The following are the AGREED FACTS and AGREED CLAIMS in the case:
“1. The deceased was a qualified Doctor and held MBBS Degree having graduated in 1993.
Loss of Expectations of Life - $1,600.00
The nature of the claim under the Compensation to Relatives Act (Cap. 29) is conveniently summarised in the Statement of Claim as follows:
“That the deceased immediately prior to his death was a young and healthy person of 26 years age. He lived a happy wholesome and active life. He was a qualified medical practitioner employed by the Ministry of Health, Fiji Government. His annual salary was $14,155.00. at the date of his death he was designated as a Medical Officer. He had a bright future with good prospects of promotion and fulfilment.”
At the time of his death the deceased had been legally married for three and a half months although the religious ceremony did not take place until 1st January 1994 and it was only thereafter that the claimant and the deceased lived together as husband and wife with the deceased’s parents in Labasa for 8 days before the deceased met his untimely death.
In her evidence the claimant described how the deceased was on a fixed annual gross salary of $14,155.00 and received an additional, ‘on-call’ allowance whenever he was required to be ‘on-call’ which was ‘every second night’. The deceased’s pay slip for December 1993 (Exhibit 5) indicates that he received a nett fortnightly salary of $536.79 (i.e. $13,956.54 a year). From this salary the claimant testified that the deceased ‘used to give me more than 1/3 of his salary most likely 2/3 of his salary’ which she took care of for their future and if deceased needed money he asked her.
She described how the deceased was ‘a kind-hearted, sociable person involved in religious activities and was a good soccer player. He was a social drinker of alcohol but didn’t attend private social clubs. He was a meat-eater’. The deceased was also looking after his father and occasionally gave him financial support.
In cross-examination she said that although they had not lived together as husband and wife prior to their religious marriage, the deceased had bought her personal gifts and clothing and had taken her out to dinner.
They did not have a house of their own but dreamt of owning their own home eventually and living a ‘a luxurious lifestyle’. They didn’t own a car nor did either of them hold a driver’s licence. She said that the deceased was ‘careful with money and only spent on needs rather than wants’. They had only lived together as husband and wife for 10 days ‘and had barely any time to plan our future’.
For her part the claimant testified in cross-examination that she was a qualified Lab Technician employed by the Fiji Government on a gross annual salary of $5,000.00. At the time of her husband’s death she worked in the sub-divisional hospital at Rakiraki and then at Tavua while the deceased was posted at the C.W.M. Hospital in Suva. Not surprisingly she claims to have spent a lot of her earnings on bus fares presumably commuting to and from Suva during weekends to see the deceased.
She said she got married at 24 years of age (D.o.b: 17.02.1969) and at the date of hearing she would have been 34 years of age. After the deceased’s death she had decided to further herself and was pursuing a Medical Science Degree in New South Wales.
She frankly admitted to the Court that she would consider marrying again but that depended on her ‘finding the right person’. She also accepted that being an Indian widow in her mid-thirties her chances of remarrying ‘are not high’.
The Defence called no witnesses or produced any evidence at the trial being content to rely on the comprehension submissions provided to the Court and for which I have been greatly assisted.
As agreed the matters for determination in this case are:
‘(a) The value of the claimant’s Dependency (Multiplicand);
(b) The appropriate multiplier.’
I confess that the determination of both matters in this case has not been an easy one given the duration of the marriage (3 months) and the time (10 days) that the claimant and the deceased lived together as husband and wife. This assessment is therefore based in large part on an educated guess about the future hopes and dreams and prospects of a professional couple who were just starting out in life.
There are a number of future scenarios and possibilities that could be canvassed including the very real likelihood of them having a family and owning their own home. Of the deceased continuing to work in government service for a few more years to gain valuable experience and thereafter starting his own private medical practice; of the claimant ceasing work to raise a family or continuing in paid employment and hiring domestic assistance.
MULTIPLICAND:
“The starting point is the amount of wages which the deceased was earning, the assessment of which to some extent may depend on the regularity of his employment. Then here is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years purchase. That sum however, has to be taxed down by having regard to uncertainties for instance the widow might have again married and thus ceased to be dependant and other like matters of speculation and doubt.” Per Lord Wright in Davies v. Powell Duffyn Associated Collieries Ltd. (1942) A.C. 601 at 617.
I am satisfied that, despite the short duration of their marriage and her separate earnings and the submissions of defence counsel to the contrary, the claimant was a ‘dependant’ of the deceased at the time of his death.
Counsel for the claimant relying on her evidence submits that this Court should adopt the conventional approach recognized in the judgment of O’Conner L.J. in Harris v. Empress Motors Ltd. (1984) 1 W.L.R. 212 at 217 where his lordship said:
“........ The modern practice is to deduct a percentage from the nett income figure to represent what the deceased would have spent exclusively on himself. The percentages have become conventional in the sense that they are used unless there is striking evidence to make the conventional figure inappropriate ........ where the family unit was husband and wife a conventional figure is thirty three percent and the rationale of this is that broadly the income was spent as to one third for benefit of each other and one third for joint benefit.”
Under this approach the claimant would be entitled to claim a dependant as to the extent of two thirds of the deceased’s net earnings i.e. $(2/3 of 13,956.54) = $9,304.36 p.a.
Defence counsel disagrees with the Harris approach preferring instead the approach of Gibson L.J. in Coward v. Comex Houlder Diving Ltd. which was a case where the wife was also earning an income and was contributing to the family pool which counsel submits is closer to the facts in the present case. The approach of Gibson L.J. is described in the following terms (at p.63380):
“Expressed in terms of a formula the plaintiff’s dependency ........ is two thirds of Mr. Coward’s nett earnings less one third of her own nett earnings; or it is two thirds of the joint earnings less her own earning.”
Under this formula the claimant’s dependency would be the same under both limbs. For present purposes I adopt the first limb of the formula i.e. dependency = (2/3 of deceased’s nett – 1/3 claimant’s earnings).
Claimant’s dependency = $(2/3 of 13,956.54) - $(1/3 of 5000)
= $9,304.36 - $1,666.66
= $7,637.70 p.a.
This figure represents a percentage dependency of 54.7% of the deceased’s nett earnings.
Having considered the competing approaches I accept that in the particular circumstances of this case it would not be appropriate to ignore the claimant’s earnings as a qualified Lab Technician in calculating her level of dependency on the deceased.
Accordingly I adopt as the appropriate multiplicand in this case the figure of $7,637.70 p.a.
MULTIPLIER
Claimant’s counsel submits that a figure of ‘17’ would be most appropriate considering the age of the deceased at the date of death (26 years) and his excellent future prospects as a professional doctor.
On the other hand defence counsel proposes a figure of ‘13’ given the very real prospects of the claimant marrying again. In counsel’s submissions the claimant
“........ is a very young, attractive and educated young woman ........ undertaking a degree in Medical Science (Pathology) at Charles Sturt University, New South Wales, Australia ........ this would enhance her earning capacity ........ (and) definitely bolsters her prospects of re-marriage”.
I am also mindful that the claimant does not have the additional burden of children or a large unpaid mortgage to deal with and that she will be receiving a large lump-sum payment up-front.
Doing the best I can in the circumstances and bearing in mind other decided cases of this Court, I fix the multiplier at ‘14’ years purchase giving a total dependency of: $(7,637.70 x 14) = $106,927.80 from this I deduct the agreed loss of expectation of life ($1,600.00) giving a nett loss of dependency figure of $(106,927.80 – 1,600.00) = $105,327.80.
Defence counsel also accepts that the claimant is entitled to claim a ‘pro rata’ share of the F.N.P.F. contributions of the deceased’s employer which would have been payable had the deceased continued in paid employment calculated on the basis of her dependency.
Accordingly there will be an award for loss of F.N.P.F. contributions using the agreed gross annual salary of the deceased at the time of his death ($14,155.00) and the employers statutory contribution of 8c in the $ or 8%. The figure computes as follows:
$(8% of 14,155 x 54.7% x 14) = $8,671.92.
Likewise defence counsel accepts that interest is payable on the general damages at a rate of 3% (as claimed in the submissions of counsel for the claimant) calculated from the date of filing the Writ (10.8.1994) to the date of hearing (25.9.2001) i.e. 7 years 1 month. Interest is awarded as follows:
$(105,327.80 x 3% x 7) = $22,118.80
IN SUMMARY
$
(a) General Damages under Cap. 29 105,327.80
(b) Interest @ 3% on (a) for 7 years 22,118.80
(c) F.N.P.F. Contributions lost 8,671.92
(d) Funeral expenses (as agreed) 1,000.00
---------------
TOTAL AWARD = $137,118.52
=========
Costs are also summarily assessed as agreed in defence counsel’s submissions at $1,200.00.
(D.V. Fatiaki)
Chief Justice
At Labasa,
22nd February, 2005.
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