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Singh v Lautoka General Transport Company Ltd [2006] FJHC 108; HBC387.1995 (6 February 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HEC387 OF 1995

10/2006

BETWEEN

SUBHAG WATI SINGH
daughter of Ram Asre of Namosau, Ba. Domestic Duties, as the
Administratrix of the Estate of ROBERT RAJENDRA SINGH
also known as ROPATE SOKIA father's name Bang Bahadur late
of Ba, Conductor, Deceased.
PLAINTIFF

AND

LAUTOKA GENERAL TRANSPORT COMPANY LIMITED
a limited liability company having its registered office at Bouwalu Street, Lautoka.
DEFENDANT

Mr A. K Narayan and Ms A. Watkins for the Plaintiff
Mr V. Mishra and Ms M Muir for the Defendant

Date of Hearing: 1 September, 29 September and 4 November 2005
Dates for Submissions: 25 November and 2 December 2005
Date of Judgment: 06 February 2006

FINAL JUDGMENT OF FINNIGAN J

This judgment concerns quantum of damages. I formally confirm my finding in liability against the Defendant made in my interim judgment dated 4 November 2005.

The deceased, the late husband of the Plaintiff, was aged 49 years when he died of a heart attack. For this death in my interim judgment issued on 4 November 2005 I found the Defendant, his employer, liable.

Counsel for both parties filed written submissions and submissions in reply to each other in accordance with the timetable (above). I am grateful to Counsel for the Defendant for supplying copies of all the authorities to which she referred me. I have read those authorities and considered the two submissions made by each Counsel in coming to the following conclusions.

Plaintiff's Counsel made some telling references to the evidence as did Counsel for the Defendant. The Plaintiffs claims however are sometimes without authority and none of the authorities relied on were supplied for the Court to make its own assessment of them. Extensive calculations of wages, FNPF entitlements etc made by both Counsel mostly suffered from absence of evidence.

I deal first with the claim for special damages. The principle requires the Plaintiff to prove actual expenses. Sometimes the Court accepts a rounded sum taking judicial notice of its own experience and faxing a reasonable compensation where liability has been clearly proved. Here I have ended up with no clear claim made by the plaintiff. The two items claimed are funeral expenses and the costs of obtaining probate. Clearly there was a funeral, that what did the plaintiff pay? In the light of her account of the funeral I feel I should make some award and I accept as reasonable the sum of $1000.00 suggested by Counsel. In respect of probate costs a lawyer's bill of costs and disbursements would have been easily supplied but there was none. I have no evidence of what it costs to obtain a grant of probate in Fiji and of what expenses the Plaintiff has had in administering her husband's estate. I can make no award.

I turn to the claims in general damages. The plaintiff relies predominantly on the Law Reform (Miscellaneous provisions) (Death and Interest) Act, Cap. 27. She relies also on the Compensation to Relatives Act, Cap. 29. I take the provisions of those two Acts into account.

First, Plaintiff's Counsel has referred me to a case Heather Dianne Lotherington Woloszyn -v- Savou Action No.489/1993S and seeks on that authority $2500.00 for loss of expectation of life. I think this is consistent with other authorities and in the submissions of Defendants Counsel can find no strong challenge to this particular claim. I award that amount, $2500.00.

Next is a claim for lost years including loss of FNPF payments. There was no evidence at all about the FNPF contributions and/or entitlements of the deceased. I have attempted some calculations based on seven percent of gross salary but feel it is unsafe to continue. Exhibit P10, the Defendant's statement to the Labour officer, is fundamentally hearsay and contains an error but it is consistent with the evidence of the Plaintiff that her husband earned $70.00 per week. I accept on the balance of probabilities a gross annual income of $3640.00. The deceased at death was aged 49 and I accept he would normally have worked another 6 years until 55. The Plaintiff suggests a multiplier of 6. The deceased clearly suffered a heart condition and uninterrupted employment until 55 years is not a reasonable probability. Defendant's Counsel suggested 4 years and a multiplier of 4. I average the submissions and fix the multiplier at 5. Both Counsel addressed a deduction for personal expenses and I arbitrarily assess this at 25%.

The gross annual income available to the plaintiff and family therefore is $2,730.00. Multiplied by 5 it is $13,650.00. That is the amount I award for lost years.

There is a claim for loss of consortium. On the authority of the Waqanivere -v- Nagiri & Anr Civil Action HBC0215 J 1994L Plaintiffs Counsel seeks an award of $2,000.00. 1 have considered the submissions of those Counsel and accepted the submission, I award $2,000.00.

I turn to interest, a topic addressed by both counsel. I assess interest from the date of the Writ, 12 December 1995. On the special damages they will be assessed at 3% per annum until the date of the judgment and on the general damages at 6%. Both interest awards are rounded at 10 years.

Orders

Accordingly I make the following orders. The Defendant will pay damages and costs to the Plaintiff as follows.

Special Damages

Funeral expense $1,000.00.

Interest thereon (3% per annum simple for 10 years ($300.00).

General Damages

Loss of expectation of Life $2,500.00.

Lost years $13,650.00.

Lost of consortium $2,000.00.

Interest on that (total $18,150.00) (6% per annum simple for ten years) $10,890.00.

The Plaintiff is entitled to reasonable party and party costs including disbursements. Counsel has put in a list of witness expenses but overlooked the distinction between Fijian and Australian dollars. Quantum is a matter that I hope Counsel can amicably agree. The Plaintiff will have costs of $1,000.00 together with all reasonable disbursements and expenses including Court costs and witness expenses which if not agreed will be settled by the Deputy Registrar.

D. D. Finnigan
JUDGE

At Lautoka
6 February 2006