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Public Trustee of Fiji v Matea [2002] FJHC 259; HBC0490j.1996s (31 October 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0490 OF 1996

Between:

THE PUBLIC TRUSTEE OF FIJI
as administrator in the Estate of
Mustakei aka Mustakei f/n Husseini
late of Naselai
Plaintiff

and

LEPANI MATEA and
SUNIA TUIRARA
Defendants

Mr. R.P. Singh for the Plaintiff
No appearance for the Defendants

JUDGMENT
(On assessment of Damages)

By Writ of Summons herein dated 10 October 1996 the plaintiff as Administrator in the Estate of Mustakei (the >deceased=) claims damages in a fatal accident case resulting in the death of the deceased.

On 9 May 1997 default judgment was entered against the defendants as no Statement of Defence was filed. The judgment stated that:

AIt is this day adjudged that the defendants do pay the plaintiff the sum of $1000 being special damages and general damages to be assessed and costs of this action.@

The then Deputy Registrar of the High Court took evidence on assessment of damages. She was told on 4 August 1998 that the parties were discussing settlement hence no judgment was delivered before she left Fiji. On 13 January 2000 Notice of Intention to Proceed was filed by Mr. Singh for the plaintiff.

Notice of Assessment of Damages was finally served on the defendants in June 2001. The hearing took place on 21 September 2001. As ordered, Mr. Singh filed his written submissions.

Facts

The plaintiff is the administrator in the estate of Mustakei also known as Mustakei f/n Husseini late of Naselai, Bau Road, Nausori, retired labourer aged 80 years (hereafter referred to as the >deceased=) by virtue of Letters of Administration No. 31932.

In or about 1 April 1995, while walking along Bau Road, the deceased was struck by a motor vehicle Registered No. AN.307 owned by the defendants. On being struck he was dragged for about 9 metres. The accident was due to negligent driving on the part of the driver of the said vehicle. As a result of injuries received by the deceased he died. The driver was convicted in the Magistrate=s Court at Suva for the offence of causing death by dangerous driving.

At the time of the accident the deceased was a farmer/labourer. He was the head of the family. He left surviving him his wife Azizan Bibi and five issues of his marriage, namely Mariam Nisha (58 years), Mehrual Nisha (48 years), Fahiman
Kherual Nisha (47 years), Mohammed Tahir Male (44 years) and Mohammed Jammal (41 years).

On the evidence before me, although the deceased was 80 years of age, he was in god health until he died in the said accident. He did farming on his land and sold his produce. He earned $60 to$70 per week. He used the money on his wife and also gave some to his son Mohammed Jamal with whom he lived. No other children lived there and some have migrated.

Consideration of heads of damages

I shall now consider the various heads of damages.

(a) Funeral Expenses

The plaintiff is claiming the sum of $1000.00 for >funeral expenses=. Although there is no definition of >funeral expenses= in the Compensation to Relatives Act Cap 29, Section 11 provides that Adamages 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@.

The test of reasonableness would apply here and I consider the amount claimed as reasonable. I therefore allow the said sum.

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

For a claim under Cap 27 different considerations apply as for 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 p6 should be borne in mind:

AThough 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 chances and vicissitudes of life 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 Aequating incommensurables@ is one that can never be satisfactorily achieved.@

The award under this head is solely in regard to loss of expectation of life.

As the learned counsel for the plaintiff submits the amount under this head for loss of expectation of life is limited to a moderate sum in Fiji. In Subamma v Chandar (CA 373/79), Fero Tabakisuva v Sant Kumar & Eroni Tokailagi (CA 465/80) and Daya Ram v Peni Cara & Others (Civ App 59/82 FCA) the sum of $1250.00 was awarded.

In Jai Narayan v. The Attorney-General C.A. 611/1993 and Paras Ram v. Ivamere Hotchin & Ors (C.A. 6/1991, Labasa) and Hari Pratap v. The Attorney-General of Fiji and Anor (Civ. App. 14/1992 FCA) there was an award of $2500; in Pratap (Supra) the Fiji Court of Appeal discussed this aspect at length and said that the conventional should be $2500.

I award the sum of $2500.00 under this head of claim. This sum will merge in the claim under Compensation to Relatives Act (Cap 29) (Davies v Powell Duffryn Associated Collieries Ltd (1942) AC 601).

(c) Claim under Compensation to Relatives Act (Cap 29)

As for claim under this head, the right of action under it confers on the near relative a right which 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:-

AWhere the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default 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 Compensation to Relatives Act Cap 29 the plaintiff is entitled to the claim as a dependant.

The action is based upon financial loss or loss of support and nothing else (Blake v Midland Rly Co [1852] EngR 10; (1852) 18 QB 93). In the case before me the deceased=s death was instantaneous after the vehicle collided. Hence there can be no claim for pain and suffering.

Under this head I have to decide the amount of dependency of the wife and the multiplier. In dealing with this aspect the following observations of Lord Diplock in Mallet v Mc Monagle [1969] 2 All. E.R 178 at 189 are apt:

AMy Lords, the purpose of an award of damages under the Fatal Accidents Acts 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 respondents, 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.@

I have already outlined hereabove details about the deceased. The only dependant in this case is the deceased=s wife. According to evidence he earned about $70 per week from the sale of vegetable produce. He contributed substantially towards the household expenditure. He would have given two-thirds of his earnings, which is $46 per week, to the wife and this would come to $2392.00 per year.

Now, I have to adopt the multiplicand to a multiplier. The deceased was well advanced in age and did not have the prospect of a long working life. There is no prospect of his widow remarrying because of her advanced age. Certain factors have to be considered in arriving at a multiplier and these have been stated by Lord Morris of Borth-y-Gest in Mallet v McMonagle (supra at 188) thus:

AIn cases such as that now being considered it is inevitable that in assessing damages there must be elements of estimate and to some extent of conjecture. All the chances and the changes of the future must be assessed. They must be weighed not only with sympathy but with fairness for the interests of all concerned and at all times with a sense of proportion.@

Now, what is the correct multiplier in this case. The deceased was well advanced in age but was still an active man and in good health. In my view the appropriate multiplier is 6.

Therefore, the annual dependency of $2392.00 multiplied by 6 makes a total of $14352.00. This is my award under Cap.29. The said sum of $2500 awarded (infra) under Cap 27 merges into the award under Cap.29.

(d) Interest

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 on 1 April 1995. I award interest at the rate of $6 per centum per annum from that date to date of judgment on assessment of damages. 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 make the following Orders and awards:

(a) Special damages (funeral expenses) $ 1000.00

(b) Damages under Cap. 27 $ 2500.00

(thus merges in the award under

Cap. 29)

(c) Compensation under Cap.29 $14352.00

(d) Interest on $14352.00 at 6% p.a.

from date of death, namely,

1 April 1995 to date of judgment

(31 October 2002) $ 6427.00

(e) Costs to plaintiff $ 500.00

There will therefore be judgment for the plaintiff in the sum of $21,779.00 with costs in the sum of $500.00.

D. Pathik
Acting Chief Justice

At Suva
31 October 2002