[1980-1994] Van LR 11
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
CIVIL JURISDICTION
Civil Case No. 1 of 1981
 
 BETWEEN:
 OSEA WILLIAM and RUTH BILL
Plaintiffs
 AND:
ROWEL OBED
Defendant
 Coram: Chief Justice Cooke
Counsel: Mr. P. Coombe for defendant.
JUDGMENT
[DAMAGES - quantum, loss of expectation of life, application of U.K. statutes of general application]
On the 14th March, 1980 Obed Rowel appeared before the former District Court at Santo charged as follows-
	1. Drunken driving contrary to Section 14 of Joint Regulation No. 4 of 1962.
	2. Unintentionally causing physical damage of a temporary nature to Tom Behove and Johnson Patrick contrary to Section 6(a) of Joint Regulation No. 12 of 1962, and
	3. Manslaughter of Jerome Osea contrary to Section 6(c) of Joint Regulation No. 12 of 1962.
The said Obed Rowel was found guilty and convicted and sentenced to six months imprisonment, one month imprisonment and seven months imprisonment respectively. He was also ordered to pay to the father and mother of the deceased boy the sum of 300,000 fnh (now Vatu) for the prejudice incurred with an alternative jail sentence of two months; also to pay to Compagnie Electrique de Santo the sum of 61,070 fnh (now Vatu) for damage to their electric pole with an alternative jail sentence of one month, and to pay a Judgment Fee of 500 fnh (now Vatu) and 7,820 fnh (now Vatu) taxation.
Obed Rowel served only three months of his sentence as a result of an Amnesty granted by the Government to all prisoners on Independence. The question of alternative sentence did not arise.
On the 11th April, 1980 Mr. David McNair of the firm of Turner Hopkins Coombe and Partners filed a Notice of Appeal against the civil claim of 300,00 fnh (now Vatu) awarded to the parents of the deceased.
The Appeal was listed for hearing by the Joint Court on the 9th June, 1980 but, due to political tension in Santo then, the Appeal had to be postponed Sine Die. The Appeal came on for hearing before me in Santo on the 11th May, 1981. Mr. Coombe of the firm of Turner Hopkins Coombe and Partners appeared for Obed Rowel. The parents of the deceased were not represented.
The facts are that the deceased boy was born on the 13th December, 1970 and died as a result of being knocked down by a car driven by the said Obed Rowel on the 5th September, 1980. The deceased was therefore aged 9 years 8½ months at the date of his death. From the Death Certificate before the Court it can be ascertained that the father of the child worked as a male nurse in the Santo Hospital. There was also before the Court a declaration signed by the parents of the deceased claiming a sum of eight million fnh (now Vatu) (8,000,000 fnh (Vatu)) for the following reasons:-
	1. "We claim for the loss of his company and the pleasure and happiness we would have experienced in his growing up.
	2. He was still at school and we believe he would have been of great value to us had he not died, as he would have been able to give us some support in our later years, and
	3. Claim for the cost of his funeral."
Mr. Coombe submitted that the award of the District Judge, amounting to 300,000 Vatu, was excessive. He submitted that the principal established under English law in the absence of there being legislation in Vanuatu covering the point must assist the Court in dealing with this difficult matter. He referred to the Fatal Accidents Act of 1846 and I agree that the Act, being a statute of general application, applies to this Country. It deals with a claim by dependant relatives. The leading case in England is Barnett -v- Cohen and Others (1921) 2 K.B. 461 which was referred to by Mr. Coombe. In that case the Plaintiff sued as a personal representative of his infant son to recover damages for the death of his son from the injuries received by the negligence of the Defendants and their servants. The Plaintiff brought the action for his own benefit.
(In that case.....) as a result of the accident the boy died within a short space of time. At the time of death he was three years and some months and lived with the Plaintiff. McCardle J. in that case posed the question as to whether the Plaintiff proved the pecuniary loss requisite to establish a cause of action. He said "The Plaintiff's claim to damage must rest in substance upon his anticipation of the future services and help or the pecuniary aid in the future of the son, who at four years is now dead". Morris C.J. in Holleran -v- Bagnell (1879) 4 LR Ir 740 said "There should be distinct evidence of pecuniary advantage in existence prior to or at the time of the death". However that remark was nullified by the opinion of Lord Haldane in Taff Vale Railway. Co. -v- Jenkins [1913] AC 1, the dead child in that case was aged sixteen. He said "the basis is not what has been called solatium, that is to say damages given for injured feelings or on the grounds of sentiments, but damages based on compensation for a pecuniary loss. But the loss may be prospective, and it is quite clear that prospective loss may be taken into account. It has been said that this is qualified by the proposition that the child must be shown to have been earning something before any damages can be assessed. I know of no foundation in principle for that proposition either in the statute or in any doctrine of law which is applicable; nor do I think it is really established by the authorities when you examine them". Later Lord Haldane said "I have already indicated that, in my view, the real question is that which Willes J. defines in one of the cases quoted to us, Dalton -v- South Eastern Ry. Co. (1858) 4.C.B. (N.S.) 296. (also 140 ER 1098) "Aye or No, was there a reasonable expectation of pecuniary advantage?'". The House of Lords affirmed the verdict of the jury for £75.00 damages.
In Duckworth -v- Johnson [1859] EngR 675; (1859) 157 ER 997 the father gained a verdict for £20.00 for the death of his son aged fourteen years who had, when twelve years old, earned four shillings a week in a painter's shop. In discharging the rule Nisi for a new trial Pollock C.B. said, "My opinion is that, looking at the Act of Parliament, if there was no damage the action is not maintainable. It appears to me that it was intended by the Act to give compensation for damage sustained, and not to enable persons to sue in respect of some imaginary damage, and so punish those who are guilty of negligence by making them pay costs".
I would agree with McCardle J. when he said - "I think that the only way to distinguish between the cases where the Plaintiff has failed, from the cases where he has succeeded is to say that in the former there is a mere speculative possibility of benefit, whereas in the latter there is a reasonable probability of pecuniary advantage. The latter is assessable. The former is non-assessable".
In the case before McCardle he held that the Plaintiff had not satisfied him that he had reasonable expectation of pecuniary benefit. The child in that case four years old. He was subject to the risk of illness, disease, accident and death. He might or might not have turned out a useful young man. He would scarcely have been expected to contribute to the father's income for the Plaintiff, in that case, then possessed a £1,000.00 a year business. McCardle J. thought the matter before him was beset with doubts, contingencies and uncertainties to make any award.
In the case before me, admittedly, the boy was nine years of age but there is no evidence before me to show that he helped his father, the Plaintiff, in any way. The Plaintiff, according to the Death Certificate which I take Judicial notice of, was a dresser so would be earning quite a good salary and therefore the child would not have been expected to contribute to his income. This is a case, as in the case before McCardle, beset with too many difficulties. There was no reasonable probability, in my opinion, of pecuniary benefit, only, if any, a speculative possibility. Therefore the action under this head fails.
I now turn to the right of action surviving for the estate of the deceased boy. This is a right given by virtue of the Law Reform (Miscellaneous Provisions) Act 1934 which I hold is applicable to the Republic of Vanuatu, being a statute of general application. The difficulty under this head is assessing the value of loss of expectation of life. Mr. Coombe referred to the House of Lords case of Benham -v- Gambling [1941] 1 All ER 7. In that case a boy of 2½ years was killed in a road accident. At the trial before Asquith J., sitting without a jury, the negligence of the Appellant was admitted and the only question for the Judge to decide was the amount of damages to be awarded to the administrator for the benefit of the child's estate. Since the child was unconscious from the moment of the accident till his death, there could be no claim for pain and suffering and the only question, apart from the funeral expenses, was that of damages arising from the diminution of the child's expectation of life. The child was a normal, healthy child, living in a country village off the main road where the risk of being exposed to road dangers and to certain diseases would be less than in a crowded centre. His father was in a steady employment and had reasonable prospects of continuing in it. Asquith J. was referred by Counsel to a number of earlier decisions in which various amounts had been awarded, on no clearly defined principle, in respect of individuals of various ages, and observed that these decisions appeared to proceed on the basis: "that human life must be assumed on the whole to be an advantage rather than a disadvantage, and, if the victim has had his life reduced by a longer period, that is a graver disadvantage in respect of which larger damages ought to be awarded than if its life had been reduced by a shorter period".
The Judge fixed the damages at the sum of £1,200.00 having arrived at the conclusion that this amount would, in the circumstances, "be neither unreasonably excessive nor unreasonably deficient".
On Appeal to the Court of Appeal both Slesser and MacKinnon L-JJ held that the award should stand. Goddard L-J. thought that the Appeal should be allowed and the amount reduced to £350.00. The case then went to the House of Lords and Viscount Simon L.C. stated - "I am of the opinion that the right conclusion is not to be reached by applying what may be called the statistical or actuarial test. Figures calculated to represent the expectation of human life at various ages are averages arrived at from a vast mass of vital statistics. The figure is not necessarily one which can be properly attributed to a given individual. In any case, the thing to be valued is not the prospect of length of days, but the prospect of a predominantly happy life. It would be fallacious to assume, for this purpose, that all human life is continuously an enjoyable thing, so that the shortening of it calls for compensation to be paid to the deceased's estate, on a quantitative basis. The ups and downs of life, its pains and sorrows as well as its joys and pleasure, all that makes up 'life's fitful fever", have to be allowed for in the estimate. In assessing damages for shortening of life therefore, such damages should not be calculated solely, or even mainly, on the basis of the length of life which is lost". Later in his Judgment, Viscount Simon stated - "I would further lay it down that, in assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness. The test is not subjective, and the right sum to award depends on an objective estimate of what kind of future on earth the victim might have enjoyed, whether he had justly estimated the future or not. Of course, no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not of loss of future pecuniary prospects". Viscount Simon finally stated that in assessing damages under this head, whether in the case of a child or an adult, a very moderate figure should be chosen. The sum of £200.00 was awarded.
In subsequent cases damages for the loss of expectation of life of an adult killed instantaneously were assessed at a token figure which was usually about £300.00. In Cain -v- Wilcock (1968) 3 A.E.R. 817,the Court of Appeal approved an award of £500.00 for a child of two and a half years. The result is that adults and children are now treated alike and in normal cases the sum has been £500.00. However, the Court of Appeal in the case of McCann -v- Sheppard [1973] 2 All ER 881, allowed £750.00 on account of inflation.
In the case before me the child killed in the motor accident was nine years of age. I have no reason to believe that he was an unhealthy child or indeed that he did not have the prospects of a predominantly happy life. He lived in the town of Santo which can be aptly described as a quiet town where the risk of being exposed to road dangers would be less than in Vila. Apart from normal everyday colds and the like, Santo town seems to be a town free from diseases. The question I have to resolve is that of fixing a reasonable figure for the loss of a measure of prospective happiness - I am satisfied that the circumstances of the individual life in this case were calculated to lead, on balance, to a positive measure of happiness. Being guided by the authorities referred to I consider the sum of £1,000.00 would be the appropriate award, bearing in mind that the sum of £200.00 award in 1941 was increased to £500.00 by the Court of Appeal in 1968 and to £750.00 by the Court of Appeal in 1973 due to inflation. I consider inflation has further affected the award during the past eight years and that £1,000.00 is now the proper figure. I must, however, lay it down that that figure will be the maximum I would award for cases under that heading in this Country for at least the next ten years. Accordingly I award the sum of £1,000.00 or the sum of 185,000 Vatu. I also consider that a sum should be awarded to cover funeral expenses and for such I award the sum of 20,000 Vatu. As the award of 30,000 Vatu payable to the Claimants for the injuries to their daughter was not contested the total sum payable to the Claimants will be 235,000 Vatu. The sum awarded by the District Court will be reduced to that amount.
Dated at Santo this 6th day of July, 1981.
FREDERICK G. COOKE
CHIEF JUSTICE
[Editorial Note: this case is referred to in Boe & Anor v Thomas, S/C 9/86]