Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Jieni v Cobona [1997] FJHC 140; Hbc0548j.96s (26 September 1997)

Fiji Islands - Jieni v Cobona - Pacific Law Materials

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 548 OF 1996

ass=MsoNormal alal align=center style="text-align: center; margin-top: 0; margin-bottom: 0"> BETWEEN:

AKENISI JIENI

Plaintiff

AND:

1. KUSITINO A

2. THE TRUSTEES OF VUDIBASOGA CATHOLIC CHURCH

Defendants

Mr. R.P. Singh for the Plaintiff

No appearance of defendants

JUDGMENT

(Assessment of Damages)

The Plaintiff had sued the defendants in her capacity as Administratrix of the Estf her husband "the ;the deceased" JACK SUTHERLAND also known as JOHN CLIVE SUTHERLAND claiming damages under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27 and under the Compensation to Relatives Act Cap. 29.

The Plaintiff has already obtained judgment by default and this is the hearing of assessment of damages.

The claim arises as a t of an accident on or about 15 November 1994; the deceased was travelling as a front seat seat passenger in motor vehicle Registration No. CP814 owned by second defendant and driven by the first defendant who was a Parish Priest and a servant or agent of the second defendant and resided at Vudibasoga Catholic Church. The said vehicle hit a culvert on the side of the road.

ass=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> It was the negt driving on the part of the first defendant which caused the said accident as a result whet whereof the deceased received certain injuries. He was taken to Labasa Hospital but died about 10 hours afterwards.

The first defendant was charged with the offence of cg death by dangerous driving on 21 November 1994 in the Mage Magistrate's Court at Labasa and was fined $200.00 and sentenced to one year's imprisonment suspended for 18 months and disqualified from holding or obtaining a driving licence for a period of two years.

The Writ of Summons was issued on 2 January 1996 and subsequently served on the defendants. Judgment by Default was entered on 19 March 1996. Notice of Assessment of Damages was served on the defendants but they failed to appear. The hearing of assessment proceeded in their absence.

Plaintiff's evidence

The Plaintiff testified that she was married to the deceased on 9 May 1987 and liith him until his death. Thh. There are three children of the marriage, namely, MURRAY PETER SUTHERLAND born 1 September 1988 now aged about 9 years, EMILY SUTHERLAND born 25 December 1990 now aged about 7 years and MARLEEN CHRISTINE REPEKA SUTHERLAND born 19 July 1993 now aged about 4 years. The deceased was born 24 February 1963 and the Plaintiff was born 12 April 1961.

The deceased before his death was a farmer working on "Seva Estate" at Naduri in Macuata which belonged to the Sutherland Family. It comprised of 235 1/4 acres of freehold land. The deceased had a quarter share in that Estate.

The farm coconut plantation. The deceased sold coconuts at Labasa Market once a week. He used to tato take 1000 coconuts every week to sell. He made $50 to $60 per week from the sale of coconuts. Apart from this he collected bêche-de-mer from the sea and earned between $100 to $200 per week from its sale. He also planted vegetables for home consumption.

p class=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> The Plaintiff testified that she spent $10wards the funeral of the deceased and this included transpoansport, food, feast, grocery, coffin box and expenses for customary rites. The deceased was buried at the family burial ground on the Estate property.

The Plaintiff left the farm after a year as she cout manage it by herself and came to live with her parents ints in Sarosaro Place, Suva.

The Plaintiff and the children were completely dent on the deceased for their financial support. Now the Pthe Plaintiff has no income at all and is altogether dependent on her parents and brother. Two of the children attend school; one is in class 3 and the other in class 1 at Marcellyn Primary School, Suva. The youngest stays home.

Claim under Compensation to Relatives Act (Cap. 29)

p class=MsoNormaNormal style="margin-top: 0; margin-bottom: 0"> As for claim under this head, the right ofon under it confers on the near relative a right which is a is an independent right and not a continuation of the cause of action vested in the deceased.

Section 3 of the Act reads as follows:-

p class=MsoNormal stal style="margin: 0 36.0pt"> "Where the death of a person is caused by wrongful act, neglect or default, an act, neglect or default islt is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person or persons or body of persons, incorporated or unincorporated, who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured, and although the death was caused under such circumstances as to amount in law to a crime".

I find that under s.4 of Cap 29Plaintiff and the children are entitled to the claim as dependants.

This action is based upon financial loss or loss of support athing else (BLAKE v MIDLAND RLY CO (1852) 18 Q.B. 93B. 93). Under Cap. 29 the question that I have to decide is the amount of dependency of the wife (the Plaintiff) and the children and the multiplier.

In considering the actual assessment of damages I ref LORD DIPLOCK'S observation in M>MALLETT v McMONAGLE (1969) 2 All E.R. 178. He said:

"urpose of an award of damages under the Fatal Accident Acts" (which correspond with outh our Compensation to Relatives Act) "is to provide the widow and other dependants of the deceased with a capital sum which with prudent management will be sufficient to supply them with material benefits of the same standard and duration as would have been provided for them out of the earnings of the deceased had he not been killed by the tortious act of the defendant, credit being given for the value of any material benefits which will accrue to them (otherwise than as the fruits of insurance) as a result of his death."

In this the deceased's income was from farming and fishing. One has to ascertain how much he earnedarned and how much was expended by him on himself and his living expenses. I bear in mind the following words of LORD WRIGHT in DAVIES v POWELL DUFFRYN ASSOCIATED COLLIERIES LTD (1942) A.C. 601 at 617 in this regard:

"There is no question here of what may be called sental damage, bereavement or pain and suffering. It is a hara hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there 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 ....."

The evidence that I have of the deceased's income priohis death is that of his widow the Plaintiff who stated thad that he earned an average of $60 per week from sale of coconuts and $100 to $200 per week from sale of bêche-de-mer. Since this latter income fluctuates I would average it to $100 per week. The deceased's net annual income would have been $8320.00.

In a case such as this:

"..... it is inevitable that in assessing damages there must be els of estimate and to some extent of conjecture. All the chae chances and the changes of the future must be assessed. They must be weighed not only with sympathy but with fairness for the interest of all concerned and at all times with a sense of proportion." (per LORD MORRIS of BORTH-Y-GEST in MALLETT (supra).

Dependency figure

p class=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> Now I have to ascertain the figure for the dependency, namely, the sum of money or earnings or benefit which the widow was deriving from the deceased before the fatal accident. According to the dictum of LORD WRIGHT in DAVIES (supra) at 601 there are three stages to the calculation. Firstly, one has to ascertain the earnings of the deceased, less his personal and living expenses. This is the `datum figure' which is also known as the annual dependency or the `multiplicand'. Then this figure is multiplied by a number of years' purchase, which is called the `multiplier'.

This exercise has been described by LORD DIPLOCK in MALLETT (supra at 178) thus:

"To assess the es it is necessary to form a view upon three matters each of which is in greater or lesser sser degree one of speculation: (1) the value of the material benefits for his dependants which the deceased would have provided out of his earnings for each year in the future during which he would have provided for them had he not been killed: (2) the value of any material benefits which the dependants will be able to obtain in each such year from sources (other than insurance) which would not have been available to them had the deceased lived but which will become available to them as a result of his death: (3) the amount of the capital sum which, with prudent management, will produce annual amounts equal to the difference between (1) and (2) (that is `the dependency') for each of the years during which the deceased would have provided material benefits for the dependants had he not been killed."

To arrive at the dependency figure I have to deduct from the said net figure of $8320 the sum expended by the deceased on himself and his living expenses in order to determine a figure so as to apply the multiplier and come to a lump sum figure. At this stage I am entering the realm of conjecture so there is no evidence of a figure to indicate the extent of dependency. I would allow one-third of $8320.00 for personal and living expenses on the part of the deceased. The dependency therefore comes to two-thirds of $8320 which is $5546.00 (Five thousand five hundred and forty-six dollars) per year.

Multiplier

The next qun is to arrive at an appropriate multiplier. At the time of his death the deceased was abou about 32 years old; there is no evidence that he suffered from any sickness or that he smoked or drank. He probably would have worked until the age of 55 years. Selling coconuts and bêche-de-mer could not possibly have lasted all his life; also income from such sources would have fluctuated considerably over the years.

The case of HOWITT v HEADS (1972) 1 All E.R. 491 is a guide on the computation of a multiplier. In the case before me I consider the loss of dependency 23 years and in my view the appropriate multiplier is 12. In this case the wife was not working at the time of her husband's death; therefore her earning capacity will not be taken into account. (FATAL ACCIDENT CLAIMS by Duncan & another p.36).

Therefore the annual dependency of $5546 should be multiplied by king a total award under the Compensation to Relatives Act Act of $66552.00. From this sum $1250 awarded under Cap. 27 (infra) is to be deducted leaving the balance sum of $65302.

Funeral Expenses

The Plaintiff claims the sum of $1000 in respect of funexpenses which includes item stated hereabove. In the absencbsence of any statutory definition of the term "funeral expenses", it is debatable that all the above items come within the meaning of that term. Under Cap 29 it is provided in s.11 that "damages may be awarded in respect of the funeral expenses of the deceased person if such expenses have been incurred by the parties for whose benefit the action is brought." It would appear that the test of reasonableness would apply bearing in mind particularly the context of the Fiji situation where so many rites, rituals, customs and tradition come into play once a person dies. In the circumstances of this case I consider the claim of $1000 as reasonable and I therefore award that sum.

Damages under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Cap. 27).

Loss of expectation of

For a claim under Cap. 27 different considerations apply from Cap. 29. In considering this aspect the following passage from the judgment of LORD MORRIS OF BORTH-Y-GEST in YORKSHIRE ELECTRICITY BOARD v NAYLOR (1967) 2 All E.R. at p.6 should be borne in mind:

p class=MsoNormal stal style="margin: 0 36.0pt"> "Though it is said that his death was instantaneous, the appellants have not sought to dispute that a valid cause of action vested in him. By reason of the provisions of the Law Reform (Miscellaneous Provisions) Act, 1934, that cause of action survived for the benefit of his estate. The judge had to decide what sum of damages should reasonably be awarded in respect of the deceased's cause of action. He lost what is usually called his expectation of life. The loss was something personal to himself. No one knows what life would in fact have held for him had he lived. No one will ever know. No one could ever know. The chances, the changes and the vicissitudes of the future are in the future. He will not know them. No surmise can with any measure of confidence be made whether by his untimely death he was denied happiness or was spared unhappiness. The task of "equating incommensurables" is one that can never be satisfactorily achieved."

p class=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> The amount under this head for loss of expion of life is limited to a moderate sum in Fiji. In i>SUBAMMA v CHANDAR (C.A. 373/79), FERO TABAKISUVA v SANT KUMAR & ERONI TOKAILAGI (C.A. 465/80) and DAYA RAM v PENI CARA & OTHERS (Civ. App. 59/82 FCA) the sum of $1250.00 was awarded.

It has been said that there is "no basis in law for selecting an award and then to make a t allowance for the decreascreasing value of money" (KRISHNA TANDRAIYA and DHARAM SINGH (Civ. App. 17/78 FCA). Quoting from TANDRAIYA (supra) in BENHAM v GAMBLING (1940 A.C. 157) Viscount Simon L.C. said that:

"while recognising that this head of claim is in fact incapable of being measured in coin of the realm with any approach of real accuracy" stated that courts should arrive at "very moderate figures".

Therefore for loss of expectation of life Id the sum of $1250. This sum will have to be deducted from from the claim under the Compensation to Relatives Act. (DAVIES - supra)

Apportionment of damages

I have to consider apportionment of damages in this case as it involved a surviving spous dependant infants.

A number of methods have been adopted in this regard. Here I have a spouse who is very young and the chances of her remarrying is a factor which cannot be ignored; but the widow should have a sum sufficient to maintain the children as well as herself. There is no evidence that she is not reliable; she will be expected to continue to be responsible for the children. In KASSAM v KAMPALA AERATED WATER CO., LTD., (1965) 2 All E.R. 875 the Privy Council held that the eight surviving children could all be considered dependent and damages were apportioned according to the childrens' different requirements and ages.

Usually the greater part of the total sum is awarded to the widow and to award comparatively small sums to the children themselves and a younger child is awarded more than an older child because the period of expected dependency is greater (DAMAGES FOR PERSONAL INJURY and DEATH 5th Ed. by David Kemp at p64-65).

I apportion the said sum of $65302 as under the `Order'

Interest

ass=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> The Plaintiff claims interest on the damages awarded. Under s3 of Cap 27 it is in the discretion of the Court to award interest at such rate as it thinks fit for the whole or any part of the period between the date when the cause of action arose and the date of judgment.

Here the cause of action arose of 15 November 1994. I award interest at the rate of $6 per centum per annum from that date to date of judgment, namely 19 March 1996. Thereafter judgment carries interest at the rate of $4 per centum per annum until satisfied and no order of the Court is necessary.

Order

In the result I allow and award:

(a) & p;&nssp; tsp; the sume sum of $1250.00 under the the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27.

(b) the sum of $60302.de unhe the compensation to Relatives Act Cap 29 (after deducting $1250 in (a) above.

&nn">

>

(c) &nbssp; & sp;& the sum of $1000.00pas spes special damages (being funeral expenses).

&nn">

(d) &nbssp; & sp;& interest on the awa d in ( in (b) above at the rate of $6.00% p.a. from 15 November 1994 to 19 March 1996 and thereafter at $4.00% pntil fied paidhe Plaintiff to disburse as s as she deems fit.

(e) & p; bsd I nllocateocateocate the sum of $65302 (rounded to $65300) as follows:

langB style="font-family: Times New Roman">

Plaintiff  p;&nbbsp;&&bsp; &bsp;&bsp; &nbss;&nbbsp;&&nsp; &nsp; &nbbp;&nnbsp; &nbbsp;;&nbssp;&ssp; &bsp; &nbbsp;&&nbp; &nsp; &nbbp;&nnbp;& nbsp;&nbsp &nbsp &nnbp;&&nbp;; &n& p; nbsp; nbsp; ; &npsp;& p;&nbbsp;&nbp; &nbs; &nnbsp;; $4p; $43526.00span>

<

Murrayurray Pete Peter Sutherland

(9 years old) &nnsp;&&nsp;;&nspp;&nssp;&nsp;  p;&nssp;  p; &nbp; &nbp; ;&nbpp; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; &nbsbbsp;&&nbssp &nbsp  p;&nbb.00<0span>

<0"> &nbsp

Marleen Sutherland (4 years old) ;&nbssp; &nsp; &nsp;  p; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& &nn &bsp; &bsp; & &np;p;$ 9676.00

&

(f) &nbbsp;&&bsp;; bsp suheofum ofum of $1000.00 for funeral expenses which is to go to the Plaintiff to disburse as she deems fit.

The costs of this action are taxed unless agreed.

: 0"> D. Pathik

Judge

At Suva

26 September 1997

Hbc0548j.96s

---

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/cases/FJHC/1997/140.html