IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: 396 OF 2006

BETWEEN

MANJULA DEVI LAL
as Executrix & Trustee of the Estate of
PIARE LAL a.k.a. PIARE BHAI LAL
PLAINTIFF

AND

RAM KRISHNA RAO
FIRST DEFENDANT

CENTRAL TRANSPORT COMPANY LIMITED
SECOND DEFENDANT

Mr. D. Sharma for Plaintiff
No Appearance of Defendants

Date of Hearing: 30th April 2007
Date of Judgment: 3rd May 2007

ASSESSMENT OF DAMAGES

BACKGROUND:

Piare Lal died on 5th June 2005 as a result of injuries he had sustained in a road accident two days earlier. He was involved in an accident with a bus registered number CCTL 11 driven by the first defendant and owned by the second defendant.

The plaintiff Manjula Devi Lal is the wife of the deceased. She is claiming damages for herself and her defendant children under the provisions of Compensation to Relatives Act Cap 29 and Law Reform (Miscellaneous Provisions) (Death & Interest) Act Cap 27. At the time of his death the wife and youngest daughter were dependent on the deceased. This youngest daughter was a third year Bachelor of Science student at the USP and completed her degree the following year. Three other daughters were not dependant on the deceased as two were married and lived in New Zealand. The third had already begun to work.

PERIOD OF DEPENDENCY:

The period of dependency of dependents of various ages are likely to vary since not all will remain dependent for the same length of time: Kassam v. Kampala Aerated Water Co. Ltd. - (1905) 1 WLR 668. The daughter who was the student at the USP would have depended on her father until she had completed her degree at the USP and then found work. As evidence stood she is in New Zealand now and employed. The wife's dependency seeing that she was a housewife would no doubt have continued during the course of deceased's working life. She had no other alternative to that.

The deceased earned $25,000.00 gross per annum. This type of income would obviously attract some income tax after deduction of marriage allowance. The tax guide issued by the Commissioner of Inland Revenue provides the incident of tax. Generally there is a marriage allowance of $1,200.00 so the taxable income would be $23,800.00. The tax on this would be $3,852.00 giving the deceased net income of $19,948.00. A copy of the guide is annexed to the judgment as a schedule. From this he spent a sum of $74.00 per week for travel to work and his cigarettes, grog and liquor that is $3,848.00 per annum exclusively on himself. This would leave a net balance income of $16,100.00 to be shared between the deceased, the wife and the daughter.

MULTIPLIER:

The deceased was born on 7th October 1948. He was 57 years and 8 months old at the time of his death. I was told that he was in good health but I also note that he smoked. Further the deceased had retired from Home Finance and was not content to sit at home. He sought employment in a law firm. He was a person determined to work. I was not informed what the retiring age is, if there is one, for those who work in private law firms. I doubt if there is one. In Hari Pratap v. Attorney General & Om Prakash - ABU 14 of 1992 a multiplier of five was used in the case of a 54 year male. In Attorney General and Vimal Govind v. Aliani Kotoiwasawasa - ABU 4 of 2003 a multiplier of 4 was applied in the case of a 58 year old male who was going to retire at the age of 65. I shall use a multiplier of four.

DAMAGES UNDER LAW REFORM (MISCELLANEOUS PROVISIONS) (DEATH & INTEREST) ACT:

Damages that may be claimed by the estate under this Act are limited to the damages which arose before the death or as a result of the death of the deceased. Generally speaking damages which are claimed under this act are dealt under following headings:-

(a) Funeral Expenses:

In the statement of claim the plaintiff claimed funeral expenses in the sum of $2,000.00; general damages for loss of expectation of life, loss of consortium and compensation for lost years or value of dependency, interest and costs.

The statement of claim has not been amended. I say this because on 9th March 2007 the plaintiff filed a schedule of special damages pursuant to the orders made by Master on 30th January 2007. I am certain what the Master meant by his order was the breakdown of $2,000.00 claimed. The schedule filed, however, is for the sum of $5,910.00 which includes $3,910.00 for various items like obtaining death certificate, cost of probate, and airfares for two daughters to travel for funeral.

The defendants have neither contested liability nor assessment. They may well be content to admit $2,000.00 as reasonable special damages, but may have serious misgivings about $5,910.00. Accordingly an increase in special damages should have been sought by amendment to pleadings and which should have been served on the defendants. I allow funeral expenses of $2,000.00 but not the remainder of the claim as set out in the schedule.

Loss of Expectation of Life:

The statement of claim also seeks damages for loss of expectation of life. There is no acknowledged criteria for calculating this sum. In Fiji the usual sum awarded is $2,500.00 and I allow this sum. However since award for loss of expectation of life is a benefit which accrues to the dependents, it must therefore be deducted from the award under Compensation to Relatives Act as otherwise there would be duplication of this sum resulting in over compensation: Davies v. Powell Duffriyn Collieries Ltd. - 1942 AC 601.

CLAIM UNDER COMPENSATION TO RELATIVES ACT:

The pecuniary loss caused to the dependents of the deceased forms the basis of the damages under Compensation to Relatives Act Cap 29. This is calculated by calculating the extent of dependents' dependency on the deceased. The dependency is calculated by deducting from the net earnings of the deceased the sum which the deceased spent exclusively on himself and others apart from his family: Harris v. Empress Motors Ltd. - 1983 1 ALL ER 531. This would include such item as money spent on cigarettes, grog, drinks etc. I have already calculated this sum at $3,848.00 per annum.

There were three persons who depended on the deceased's income - the deceased, his wife and his daughter. The daughter was a university student and would have finished her degree a year later so I conclude that in two years time she would have found employment and her dependency would cease. The wife's dependency would continue. Given the net income of the deceased was $16,100.00 the dependency of each of the three would be roughly $5,400.00 per annum. However once the daughter's dependency had ceased, I would suspect the wife's dependency on the husband to increase to roughly $8,000.00 per annum.

The pecuniary loss of the dependants is split into two parts namely pre-trial and post-trial: Cookson v. Knowles - 1978 2 WLR 978. The pre-trial loss is for approximately one year and eleven months. I round this for ease of calculation to two years.

Interest:

The plaintiff has claimed interest. The court has discretion to award interest. I allow interest at the rate of six percent per annum for funeral expenses and three percent on pre-judgment loss.

Pre-trial Loss:

For the Wife	$10,800.00	
For the Daughter	10,800.00	
Total	=	$21, 600.00	

Pre-trial loss:

For the Wife	$16,000.00	
For the Daughter	NIL	

Calculation:

(a)	Loss of expectation of life	$2,500.00	
(b)	Funeral expenses	   2,000.00	
(c)	Pre-judgment loss	$21,600.00	
(d)	Post judgment loss	  16,000.00	
(e)	Interest on (b) at 6% for 2 years	     120.00	
(f)	Interest on (c) at 3% for 2 years	   1,296.00	
		$43,516.00	

Less $2,500.00 to prevent duplication of award so the total damages awarded are $41,016.00.

The plaintiff seeks costs including her travel expenses of $1,600.00 from New Zealand to attend the trial. I allow these travel expenses. Her evidence was material. I allow the sum of $4,000.00 costs inclusive of travel expenses.

FINAL ORDER:

Accordingly there will be judgment for the plaintiff against the defendants in the sum of $41,016.00 together with costs summarily fixed in the sum of $4,000.00.

[Jiten Singh]
JUDGE

At Suva
3rd May 2007