IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 3 OF 2016

BETWEEN:		ANJELINE SANJESHNI MALA

Plaintiff

AND:			LAISENIA KORONIVACI

First Defendant

AND:			TUFEALS TRANSPORT LIMITED
Second Defendant

AND:			MOHAMMED TILAWAT KHAN AND FAREEN NISHA

Third Defendants

CORAM:	 	The Hon. Mr. Justice David Alfred

COUNSEL:		Mr. A. Sen for the Plaintiff
	
			Mr. S Sharma for the Second and Third Defendants

Date of Hearing:	6 August, 2018

Date of Judgment:	8 August, 2018

JUDGMENT

1.	The Plaintiff in her Statement of Claim says as follows:
	(1)	She is a widow and administratrix of the estate of Mustafa Khan (deceased) 		who died intestate on 18 August 2013.  Letters of Administration were granted 		to her on 25 November 2013.

	(2)	She brings this action for the benefit of the deceased’s estate (estate) under the 		Law Reform (Miscellaneous Provisions) Death and Interest Act Cap 27 (L.R. 		(MP) Act)  for the benefit of the dependents of the deceased pursuant to the 		Compensation to Relatives Act Cap 29 (C.R. Act).

	(3)	At the trial the Plaintiff reserves her right to prove her claim only under the 		former Act (LR (MP) Act).

	(4)	The First Defendant was the driver of motor vehicle No. FD154 (the vehicle).
		The Second Defendant was the owner of the vehicle. The Third Defendants 		were the Managing Director and Director of the Second Defendant and also 		acting in purpura persona.

	(5)	At all material times the First Defendant was driving the vehicle as the servant 		and agent of the Second and Third Defendants.

	(6)	The liabilities of the First Defendant have been taken over by the Second and 		Third Defendants, the employers of the First Defendant and as such they are 		liable  for  this  claim  and/or  the  First Defendant  was  in the course of his 		employment with the Second and Third Defendants and was a servant/agent of 		the Second and Third Defendants.

	(7)	On/about 18 August 2013 the deceased was hit by the vehicle driven by the 		First  Defendant  and  was  killed.  The  collision  was  caused  through the 		negligence of the First Defendant, the particulars of whose negligence are then 		set out.  

	(8)	Alternatively,  the   particulars   of  negligence  of  the  Second  and  Third 		Defendants are:
		(a)	Negligently allowing the First Defendant to drive their vehicle which 			they knew or ought to have known was dangerous.
		(b)	Negligently allowing the First Defendant to drive their vehicle when 			they knew or ought to have known he was not a qualified driver.
		(c)	The Plaintiff will rely on the doctrine of res ipsa loquitur as evidence 			of negligence.

	(9)	In  the premises the deceased lost his expectation of  life and his estate has 		suffered loss and damage.

	(10)	The particulars of special damages are:
		(a)	Funeral expenses		-	$5,000
		(b)	Loss of expectation of life	-	$5,000

	(11)	The  dependants  of  the  deceased  have  suffered  loss  and damages.  The 		particulars of the widow and the four minor children are then appended.

	(12)	The deceased was 33 years of age at the time of death; was earning $23,039.90 		per annum and gave the Plaintiff $250 per month for the household expenses.

	(13)	The First Defendant was charged with 4 counts and the Plaintiff will rely on 		any conviction as evidence in the trial.

	(14)	The Plaintiff is entitled to punitive and exemplary damages.

	(15)	Wherefore the Plaintiff claims:
		(a)	Orders restraining the Second and Third Defendants from disposing of 			their assets until the final determination of this action.		
		(b)	Damages under the L.R (MP) Act.
		(c)	Damages under the C.R. Act.
		(d)	General Damages.
		(e)	Punitive and exemplary damages in the sum of $20,000.
		(f)	Indemnity costs of $10,000.
		(g)	Special Damages of $10,000.
		(f)	Interest.

2.	The Second and Third Defendants in their Amended Statement of Defence state as 	follows:
	(1)	The First Defendant was not authorised or permitted to drive the vehicle on 		the date the accident took place.
	(2)	The Second Defendant is the owner of the vehicle No. FD154.
	(3)	The Third Defendants were the Directors of the Second Defendant.
	(4)	The First Defendant without any right took the vehicle without the knowledge, 		consent and authority of the Second and Third Defendants and drove it on his 		own free will and accord.	

3.	The Plaintiff in her Reply to the Defence says as follows:
	(1)	The Plaintiff was always the servant and agent and worked under the authority 		of  the  Defendants  and  at  the time of accident was performing his duties 		within the scope of his employment.

4.	The Minutes of the Pre-Trial Conference dated 17 October 2017 include the 	following:

	Agreed Facts
	(1)	The Plaintiff reserves her right to prove her claim only under the L.R. (M P) 		Act.	
	(2)	At all material times the First Defendant was the driver of vehicle No. FD154.
	(3)	The Second Defendant was at all material times the owner of the vehicle.
	(4)	At all material times the Third Defendants were the Managing Director and 		Director of the Second Defendants and also acting in purpura persona.
	(5)	At all material times the First Defendant was driving the vehicle as a servant 		and agent of the Second and Third Defendants.

	Issues

	These do not need to be reproduced in my judgment. 

5.	At the commencement of the 	trial, Mr Sharma informed the Court that liability for the 	accident is admitted by the Second Defendant, and this was so recorded by me.  I 	also recorded that both Counsel confirm that the only issues are the injuries and the 	special damages of the Plaintiff and whether the Third Defendants are liable to pay 	these damages to the Plaintiff.

6.	Mr Sen applied for a default judgment against the First Defendant only to be 	recorded. I recorded a default judgment against the First Defendant only, with 	damages to be assessed.

7.	The Plaintiff was the first witness (PW1).  She said she is the widow of the 	deceased and tendered as Exhibits the birth certificates of their 4 children.  She 	said the deceased was 33 years old at his death which occurred instantaneously in 	the 	accident.  The  deceased  was  healthy  with no sickness  and was a school  	teacher earning $23,039.90 p.a.  His salary slip was tendered as Exhibit P9. He 	contributed 95% of his salary to the family and spent $4000 on himself.

8.	PW1 said  the vehicle was parked at the residence of the First named Third 	Defendant (Tilawat).  She tendered as Exhibit P11 the judgment of the Magistrates’ 	Court, 	Labasa  dated 25 August 2017 recording the 3 convictions against the First 	Defendant for offences arising from the fatal accident to the deceased (There was 	no 	objection from Mr Sharma).

9.	PW1  continued  that  the  deceased  was  a  civil  servant  and  the  retirement  age	was 55 years.  The funeral  expenses was $5,000 but she had no receipts for 	these. She is claiming damages for loss of expectation of life.

10.	The next witness was PC 1779, Janeshwar Singh (PW2). He knew Tilawat 	(identified) who  was  interviewed  on  the allegation of permitting another 	person to drive the vehicle without a driving licence. PC Patrick Babu Ram 	gave Tilawat his rights to language, solicitor, relative, religious counsellor and to 	remain silent.  Tilawat chose to speak in English.  PW2 heard the questions read by 	PC Babu who recorded the answers. 

11.	PW2 said there were no threats, nor inducements to Tilawat who said he did not 	want to add anything.  PW2 was only the witnessing officer.  

12.	There was objection by Mr Sharma to the reception of the cautioned interview on 	the 	ground  that  PW2  was  not  the maker.  The Court ruled it could be tendered as it 	was admissible under s. 10 of the Civil Evidence Act 2002.

13.	Under cross-examination PW2 said he did not know if Tilawat was charged.

14.	With that the Plaintiff closed her case and the Defendants opened theirs’.

15.	The First named Third Defendant (Tilawat) (DW1) gave evidence. He is a 	businessman. He would have to see the Memorandum and Articles of 	Association if he is the managing director as there are 2 directors.  He said the 	Second  Defendant  owned  the  vehicle  No. FD154.  He was aware of the 	accident.  The vehicle was in his yard and  the  First  Defendant  took it.  DW1 did 	not give the First Defendant permission to take the vehicle. The key was inside the 	vehicle.  The First Defendant has a licence and drove other vehicles belonging to his 	father. DW1 had seen his licence. If he had known the First Defendant  had  no  	licence  he  would  not have permitted him to drive the vehicle.

16.	During cross-examination DW1 said he knew the First Defendant has a valid 	driving   licence.  When   he   saw  it, it   was  valid.  The   vehicle   belonged   to  the
	Second Defendant  and  he, DW1, did  not  have  any authority to give the vehicle 	to the First Defendant.  He  told  the  Police he was educated to Form 6 but 	failed. In answer to the Court, he said his answer to question 18 is correct (he was 	looking after and managing the Second Defendant).

17.	In re-examination DW1 said the First Defendant was not working for him. 	DW1, nor for the Second Defendant.

18.	With that the Defendants closed their case and both Counsel made their oral 	submissions.

19.	Mr Sen said Tilawat (DW1) and his wife (the Third Defendants) were acting 	together both as directors and in their personal capacities and are liable.

20.	With regard to the damages, he submitted that for the lost years the multiplier 	should  be 15 years and  the  multiplicand  $19,000  which  would give a quantum 	of $285,000.  For loss of expectation of  life he  was  asking  for  $5,000 and for 	funeral expenses the sum of $2,500. The Plaintiff was not claiming for loss of 	dependency.  Finally he asked for interest at 6% p.a. on the damages for the lost years 	from the date of the filing of this action to the date of judgment and interest on the 	special damages at 3% p.a. from the date of the accident to the date of judgment.

21.	Mr Sharma  now  submitted.  He  said  both  the Third  Defendants  are  not  liable 	 as the vehicle was owned by the Second Defendant. There was nothing in the 	cautioned interview which states the Third Defendants had knowledge that the 	First  Defendant  did  not  have  a  valid driving licence.  The Third Defendant did 	not authorize   the   First  Defendant  to  drive  the  vehicle.   The  Second  Defendant  	is vicariously liable but that does not shift to the Third Defendants.  There was no 	evidence against the wife.  The claim against both Third Defendants should not be 	allowed because they cannot be personally liable.

22.	Mr Sharma then submitted on the quantum. He said for the lost years it should 10  	years  at  $10,000  per  year  which  would  come  up  to  $100,000.  For the  loss 	 of  	expectation   of   life   the   figure   should  $2,500  and   for   the   funeral   	expenses $2,500  also.  He  agreed  with  the rates  of  interest and the periods stated 	by Mr Sen.

23.	Mr Sen in his reply said the Third Defendants are liable because the vehicle was 	under their control. The Plaintiff is only claiming under the L.R. (M.P.)	Act.

24.	At the conclusion of the arguments I informed that I would take time for 	consideration.  Having done so I shall now deliver my judgment on the issues 	remaining for my decision. I shall start with the issue whether both the Third 	Defendants  are  personally  liable  to  pay  damages  to the Plaintiff for the	negligence of the First Defendant.  In other words are they vicariously liable for his	negligence.  Mr Sen stated he would provide an authority for his proposition that the 	Third 	Defendants were liable “in purpura persona”. 

25.	I have been provided with an unsigned and unsealed copy of the decision of the Court 	of Appeal in Prasad v Attorney General  of Fiji and  Ors [2008] FJCA 58, 	dated 27 October 2008.  After carefully perusing the judgment I was unable to detect 	any reference to “in purpura persona”.  However as I consider the factual situation 	therein  is quite different from that herein based on the evidence before this Court, 	it will therefore not be expedient to refer to the judgment.

26.	So  I must  now turn to the Minutes of  the Pre-Trial Conference. Under the 	Agreed Facts is 6.  “That  at all  material  times the 1st Defendant was driving the  	said  vehicle  as  a  servant and agent of the 2nd and 3rd Defendants”.

27.	Agreed Fact No. 5 is “That at all material times, the 3rd Defendants were the 	Managing Director and Director of the 2nd Defendant and also acting in purpura 	persona”.

28.	This phrase appears to be non-existent. In any event, it cannot detract from what 	Counsel  on  both  sides have accepted as an Agreed Fact that the First Defendant was 	driving the vehicle as a servant and agent of the Second and Third Defendants. I 	consider  that  it  is  a  red  herring  whether the First Defendant had a valid or any 	driving licence at the time of 	the accident. 

29.	Further under “Issues” I cannot see anywhere that the Court is required to 	determine 	the  issue  of  whether  the  Third  Defendants are vicariously liable for the 	negligence of the First Defendant.

30.	To bring closure to this issue I only need to turn to Order 34 rule 2 (4) of the 	High Court Rules (HCR).  This provides quite unequivocally that “At the conclusion 	of  any  such  conference  the  Solicitors  attending  it  shall  draw  up  and  sign  a 	 minute containing a succinct statement of:
(a)		The matters, if any, upon which they are agreed, and 
(b)		The issues whether or fact, law or procedure remaining for 	determination by 	the Court.”  As the Minutes of the Pre-Trial 	Conference have been signed by 	both Mr Sen and Mr Sharma I am bound by the HCR to hold that the 	issue of  the vicarious liability  of  the  First and  Second Third Defendants 	does not remain for the Court to determine, the Second Defendant already 	having admitted liability.

31.	In  the  event  I  find  and  I  so  hold  that  the  Second  Defendant  and  both the Third  	Defendants are vicariously  liable  for  the negligence of  the  First Defendant  	driving  the vehicle as their servant and agent.  As this is a civil action the parties 	are 	free  to  make  binding  admissions  which  the  Court  will  take cognisance  of and 	put into effect.

32.	I shall now consider the claim for the lost years.  Lord Wilberforce in Pickett v British 	Rail Engineering [1980] A.C. 136 said the amount to be recovered in respect of 	earnings  in  the  “lost  years”   should   be  after  deduction  of  an  estimated  sum 	 to represent the victim’s probable living expenses during these years.  

33.	In Ashok Chand v The Permanent Secretary for Health, The Ministry of Health and 	The Attorney General of Fiji; Lautoka Civil Action No. HBC 102 of 2004, Ajmeer J 	in his judgment of 15 May 2018 awarded the estate of a deceased wife, aged 26 at 	her death, damages based on a 50% deduction from her earnings for her living 	expenses and for a period of 16 years.

34.	In Halsbury’s Laws of England, Fourth Edition Volume 12, it is stated in para 1156 	that for a Plaintiff in his thirties, having a normal expectation of working life, a 	multiplier of fourteen or fifteen has often been taken.  

35.	Based on the foregoing I think it would appropriate and just if I were to take a 	multiplier here of 15.  This would result in the damages for the lost years being 	calculated as 	follows:
	
	(1) 	The multiplicand reduced by the living expenses of the deceased is $1,000 per 		month ($2,000 - $1,000).
	(2)	The multiplier is 15 (years).
	(3)	The resultant total is $180,000 ($1,000 x 12 x 15).
	(4)	From this  is  deducted  the damages for loss of expectation of life ($2,500 		which I shall be awarding) to prevent double counting and the resultant 			quantum is $177,500.

36.	I shall award $2,500 as damages for loss of expectation of life and a further $2,500 for 	the funeral expenses.
	
37.	In the result I enter judgment for the Plaintiff against the First Defendant, the Second 	Defendant and the First named and the Second named Third Defendants and make the 	following orders:

	(1)	The  First, Second and First  named  and  Second  named Third Defendants are 		jointly  and  severally to  pay  the  Plaintiff  the damages, interest thereon 	and 		costs appended below:
		(a)	The sum  of  $177,500  as damages  for the lost years with  interest 			thereon at the rate of  4% p.a. from the date of service of the writ to 			the date of payment.

		(b)	The sum of  $2,500  as  damages  for loss of expectation of life with			interest  thereon  at  the  rate of 3% p.a. from the date of the accident to 			the date of judgment and thereafter at the rate of 4% p.a. to the date of 			payment.

		(c) 	The   sum  of   $2,500  as  funeral  expenses   with  interest  thereon  at
			the rate of 3% p.a. from the date of the accident to the date of judgment 			and thereafter at the rate of 4% p.a. to the date of payment.

		(d)	Costs summarily assed at $2,000.

	Delivered at Labasa, this 8th day of August, 2018.

							……………………..
							DAVID ALFRED
							JUDGE
							HIGH COURT OF FIJI