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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC0407 OF 1997L
BETWEEN:
MANO LATA
Plaintiff
AND:
JANAK PRASAD
1st Defendant
AND:
PUBLIC WORKS DEPARTMENT
2nd Defendant
22 March 2004
Counsel for the Plaintiff: Mr. R. Chaudhary
Counsel for the Defendants: Mr. H. Shah with Ms. A. Ali
23 March 2004
Counsel for the Plaintiff: Mr. R. Chaudhary
Counsel for the Defendants: Ms. S. Tabaiwalu
Date of Hearing: 22 – 23 March 2004
Date of Judgment: 5 April 2004
JUDGMENT
The Claim
The plaintiff, Mano Lata, brings this action as administratrix of the estate of her late husband Ramendra Prasad, pursuant to the provisions of the Compensation to Relatives Act (Cap. 29), the Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Cap. 27), as a result of the death of Ramendra Prasad in a motor vehicle accident on the Queens Road at Nawaibale, Serua on the 10th April 1997.
The plaintiff also brings a claim on her own behalf for the injuries sustained by her in the motor vehicle accident, she being a passenger in the motor vehicle, which at the time was being driven by her late husband.
Background
On 10 April 1997, the plaintiff was travelling in a motor vehicle being driven by her husband and bearing registration number DO 380 from Nadi to Suva. Also in the motor vehicle at the time were the plaintiff’s sister and her husband. The plaintiff’s sister’s husband was seated in the front of the car beside the driver and the plaintiff was seated behind him and her sister behind the driver. The party had left Nadi for Suva at about 6.00am to attend a funeral at the cemetery at 10.00am and to visit the home of the relatives of the deceased prior to attending the cemetery. The journey was uneventful until about 8.30am when commencing to ascend Man Friday Hill. They confronted a truck being driven by the 1st defendant, Janak Prasad and owned by the 2nd defendant, Department of Public Works. The truck was turning across the road in front of the vehicle in which the plaintiff was travelling.
The vehicle in which the plaintiff was travelling came into collision with the truck as a result of which, the plaintiff’s husband was killed, as was the plaintiff’s sister’s husband. The plaintiff and her sister were injured and were admitted, initially, to the CWM Hospital, Suva for treatment.
Liability
The defendants deny liability.
The plaintiff says that her late husband was travelling between 80 and 100kmph throughout the journey and that they had commenced to ascend Man Friday Hill when the accident occurred. She describes having a clear view of the road ahead through the center of the front seats and saw the Public Works Department truck appear in front of them turning to its right. She describes the vehicle colliding with the truck towards the rear of the truck and in the vicinity of the spare tyre. The plaintiff has no recollection of events after the collision occurred.
Mr. Vijay Kumar, a lease inspector with the Department of Lands was travelling from Suva to Lautoka as a passenger in a taxi following the Public Works Department truck prior to the accident. Mr. Kumar was seated in the centre of the rear seat of the taxi and had a view of the road ahead through the front bucket seats. He describes the Public Works Department vehicle as having passengers, workmen, in the back. He saw the vehicle travelling about 3 car lengths ahead of the taxi in which he was a passenger when it suddenly turned to the right without activating its trafficator and without the brake lights illuminating. He describes the truck as slowing prior to the turning but emphasizes that it did not stop. Mr. Kumar describes the vehicle in which the plaintiff was travelling as coming into collision with the truck in front of the rear wheel where the spare tyre is stored. The taxi in which he was travelling stopped and the passengers gave assistance to the injured people. After the accident, Mr. Kumar describes the scene with half of the truck on the left-hand side of the road. Mr. Kumar prepared a sketch plan of the scene of the accident which was tendered as Exhibit P-9.
The first defendant, Janak Prasad, confirmed the matters contained in the pleadings, that is, he was convicted in the Magistrate’s Court on two counts of dangerous driving causing death. These convictions were appealed to the High Court where the appeal was dismissed and were then appealed to the Court of Appeal where again the appeal was dismissed.
He described driving the Public Works Department truck with 6 passengers in the back and 2 in the front with him. He was proceeding to turn right at the Nawaibale junction. He was travelling at about 60kmph but slowing to turn which he did at about 25kmph. At the time of turning, he could see ahead for about 3 chains. He could see up to the bend. It was a fine sunny day, the road was clear and in good condition.
Mr Prasad says that he signalled his intention to turn right with the trafficator and at the time he made the turn he saw no other traffic approaching and that after entering the road junction, a blue car came and “bumped the back of the truck” following which the truck was brought to a standstill.
He describes the truck when it came to a standstill, as having its tyres on the white line on the edge of the highway. He says that the collision occurred when the car collided with the wheels of the truck and that there was no damage to the truck. He says that it took about two seconds for his vehicle to make the turn and he was doing it very slowly.
A passenger in the front of the truck, Narayan Dass, a fellow Public Works Department employee of 25 years and a life long friend of the 1st defendant said in his evidence that he could not see straight ahead as it was “a blind corner”. He positions the truck 4 to 5 metres away from the white line on the edge of the road after the accident occurred. He confirmed that the truck did not stop before turning and that the visibility was about 30 to 40 metres at the time the turn was made.
Ms. Eta Suguta was standing by the road waiting for a vehicle near the intersection. She saw the truck turn and that it was going very slowly. She heard a bang and saw the car collide with the truck.
Mr Daram Pal, a Public Works Department employee at the time was travelling in the back of the truck and was aware of the taxi that was following the truck at the distance of about half to one chain. He describes the truck as travelling very slowly at the time he made the turn and it stopped immediately after the impact of the motor vehicle with it. He also is a life long friend of the 1st defendant.
If it were, that the vehicle in which the plaintiff was travelling was proceeding at a speed of 60kmph, it would travel at the rate of 100 metres per second. The 1st defendant describing that the turn took 2 seconds and that his visibility was about 2chains. It is quite apparent that even at 60kmph the 1st defendant would not have been able to turn safely as he would not have been aware of any oncoming traffic. If the motor car was travelling at 80kmph then it would be travelling at 133 metres per second, again, making it quite impossible for the driver of the truck, 1st defendant, to safely turn when he is completely unaware of traffic that might legitimately appear in his path during the course of the turn being made. A motorcar approaching at 80kmph, on the evidence of the 1st defendant, would have only about 2 chains or about 70 metres in which to avoid a collision, as this is the limit of visibility as described by the 1st defendant.
I find on the balance of probabilities, in the light of the evidence given in the course of this trial and in the light of the admissions made both in the pleadings and by the 1st defendant as to his conviction for the offences of dangerous driving causing death, the defendants are liable to the plaintiff for the death of her husband and for the injuries she sustained in the motor vehicle accident.
Damages – the death of Ramendra Prasad
The deceased was born on the 3rd of November 1960 and died on the 10th April 1997, aged 36 years and 5 months. The plaintiff and the deceased married on the 22nd of November 1979 and relevantly had 2 children of that union being Eshleen Lata, born on 4th of May 1987 and Dipika Prasad born on 20th January 1989.
The deceased was at the time of his death in good health and supported his family by working for about 6 months of the year at Western Timber Supplies Company where he earned $70.00 per week net and for the remainder of the year he worked as a sardar of the Mate Gang harvesting sugarcane, where its agreed, that he earned approximately $30.00 per week net.
The plaintiff was prior to the accident employed by Wearsmart Textiles Limited, Nadi, where she earned $65.00 per week net. The plaintiff had some ability to earn additional income by way of overtime on an intermittent basis.
The plaintiff’s evidence is that the deceased gave to her his pay envelope and that he retained some money for his own spending. She suggested that she was given $50.00 per week however it is apparent that this could not have occurred throughout the entire year but may have occurred throughout the 6 months when the deceased was earning $70.00 net per week. It would seem that the deceased may have retained about $20.00 per week for his own spending. The plaintiff describes him as a moderate kava drinker and occasional smoker. He was a happy family man.
It would appear from the evidence that the total family income averaged to One Hundred and Fifteen Dollars ($115.00) per week being $65.00 earned by the plaintiff and an average of $50.00 per week earned by the deceased. This being so it would appear that the dependency on the deceased was about 40% and accordingly I adopt 40% as the appropriate percentage of dependency.
To determine the appropriate multiplier, the court has been referred to Helen Nina Work v Ratu Isei Turagakula – Civil Action No. 294 of 1992L. In this case the deceased was 36 years of age at the time of his death and the multiplier of 14 was applied. The court has also being referred to Subamma v Chandar – Civil Action No. 373 of 1979S where the deceased was 34 years of age at the time of his death and the multiplier of 16 was considered appropriate.
In the light of the evidence before the court as to the deceased’s habits and state of health at the time of his death, it seems reasonable to adopt a multiplier of 14 on the basis that he would have worked until at least the age of 50 years. Accordingly, a multiplier of 14 is adopted as being appropriate in the circumstances of this case.
It is necessary to consider the loss on a pre-trial and a post trial basis as the pre- trial loss will attract interest and in this regard the court has been referred to Anjula Wati v Vakatora Holdings Limited & Others – Civil Action HBC0244 of 1995S where an interest rate of 10% was adopted from the date the cause of action arose until the date of judgment. That decision was given in 1997 and the cause of action arose in October 1992.
The defendant refers the court to Attorney General of Fiji v Charles Valentine – Civil Appeal No. ABU0019 of 1998S where the Fiji Court of Appeal considered at that time the appropriate interest rate was between 5% and 7%.
In considering the principle of the applicability of interest in personal injury claims, the court considered Jefford v Gee [1970] EWCA Civ 8; [1970] 2 Q.B. 130, where the Court of Appeal analyzed the logic behind the assessment of interest and set out various principles which the Court of Appeal repeated in Attorney General of Fiji v Charles Valentine. Those principles are: -
“1. Special Damages. Interest should be awarded from the date of the accident to the date of trial at half the appropriate rate. (Usually special damages such as hospital expenses, loss of wages etc, accrue on a day-by-day basis. Rather than the court making a series of interest calculations from the time each was incurred, it can achieve a broadly appropriate assessment by taking a figure representing a mean or average for the period. Half the interest over that time may be accepted as a suitable compromise figure in most cases).
In applying the principles expressed in this case, it would seem appropriate in the circumstances to adopt an interest rate of 7%, which would result in an effective interest rate of 3 ½ % with respect to special damages.
With respect to the post trial loss, it is submitted on behalf of the plaintiff that the deceased income would have increased over the seven years post trial and to adopt a figure of $60.00 per week would be reasonable.
The defendants in their submission adopt a multiplier of 10 and do not then differentiate between pre-trial and post trial income and submitted accordingly that the rate of $50.00 per week should be adopted for the total 10 year period. In the circumstances, I think it is reasonable to accept the plaintiff’s submission and accordingly a post trial loss at the rate of $60.00 per week should be adopted for the remaining 7 years.
The funeral expenses in the sum of One Thousand Dollars ($1,000.00) are agreed between the parties. As is, the allowance under the
Law Reform (Miscellaneous Provisions) (Death and Interest) Act, for the loss of expectation of life in the sum of Two Thousand and Five Hundred Dollars ($2,500.00).
The plaintiff submits that the award should be divided as to 60% to the plaintiff and 40% to the children and that the 40% should
be divided as to 55% to the younger child, Dipika Prasad and 45% to the older child, Eshleen Lata. There would seem to be no reason
not to accede to this submission.
The damages therefore are:-
1. Pre-trial loss - $ 9,100.00
2. Interest on pre-trial loss - $ 4,459.00
3. Post trial loss - $10,920.00
4. Funeral expenses - $ 1,000.00
5. Total Damages - $25,479.00
(Miscellaneous Provisions) (Death & ) - $ 2,500.00
Interest) Act )
___________________________________________________________
TOTAL = $27,979.00
====================================================
60% of this sum is to be paid to the plaintiff, that amount being, Thirteen Thousand, Seven Hundred and Ninety Seven Dollars ($13,797.00) in the sum of Five Thousand and Fifty Six Dollars ($5,056.00) being the benefit of child Eshleen Lata and sum of Four Thousand, One Hundred and Thirty Six Dollars ($4,136.00) for the benefit of child Dipika Prasad.
Damages – For the Plaintiff Mano Lata
The plaintiff was born on 21st of November 1961 and at the time of the accident was aged 35 years and 5 months and is now aged about 43 years. She was at the time of the accident in good health and was working for Wearsmart Textiles Limited where she was earning $65.00 net per week. In addition to this amount, she was engaged in some overtime work from time to time.
As a result of the motor vehicle accident, the plaintiff was hospitalized, initially, in the CWM Hospital, Suva and thereafter in the Lautoka Hospital. She suffered a fractured right femur and a fracture of the right radius. Both fractures were required to have internal fixation by way of plate and screws and intramedullary steel rod for the femural fracture.
The injuries and the result of surgery left the plaintiff with a 10cm long incision scar on the anterior aspect of the left forearm and a 24cm long scar on lateral aspect of right thigh. She also has a 4cm scar on the medial side of the right wrist. She is left with a limp and tenderness over the right hip joint and over the scar.
As a result of the continuing disabilities the plaintiff says she is unable to engage in any overtime due to the pain that she suffers in her leg if she is required to work for longer periods.
The plaintiff was unable to engage in any employment for 180 weeks, that is, until the 4th of October 2003. She was then able to return to her former employment but says that she finds herself unable to find any other employment due to her ongoing disability and that she was able to re-engage in her employment due to her familiarity with the workplace and the employers.
Whilst the plaintiff was unable to work for total of 180 weeks, it is acknowledged that for 24 weeks she in fact received income from her employer thus leaving her pretrial economic loss at 156 weeks which is agreed in the sum of Ten Thousand, One Hundred and Forty Dollars ($10,140.00).
The plaintiff submits that an appropriate award for general damages for her pain and suffering and loss of amenities of life would be Forty Five Thousand Dollars ($45,000.00) divided as to Thirty Thousand ($30,000.00) pre-trial loss and Fifteen Thousand ($15,000.00) for post trial loss.
The defendants submit that the total general damages should amount to Ten Thousand Dollars ($10,000.00).
It is clear from the evidence of the plaintiff and of the examining doctor that she suffers a on-going disability with respect of the pain that arises from the surgery resulting from the injuries. In addition, she has residual scars that are still present some seven years after the accident.
The plaintiff was 35 years of age at the time of the accident and she is now 43 years of age. I have difficulty accepting Ten Thousand Dollars ($10,000.00) as adequate compensation for the injuries that she has sustained and the residual disabilities that she suffers. It seems to me that an appropriate award would be the sum of Thirty Thousand Dollars ($30,000.00) made up as to Twenty Thousand Dollars ($20,000.00) with respect to the past and Ten Thousand Dollars ($10,000.00) with respect to the future.
The plaintiff submits that an allowance should be made for the future loss of earning capacity. The only evidence before the court of any specific loss of earning capacity is that from the plaintiff that she is no longer able to undertake overtime due to the pain she suffers in her leg. There was limited evidence as to the availability of overtime.
I accept that should the plaintiff for some reason lose her present employment then it may be more difficult for her to find alternate employment and in the circumstances, I think it is appropriate the sum cushion be allowed for loss of future earning capacity, the sum of Seven Thousand, Five Hundred Dollars ($7,500.00) is appropriate.
Special damages are agreed as to the sum of One Hundred and Fifty Dollars ($150.00) for transport cost however the defendants dispute the sum of One Hundred Dollars ($100.00) for medication. In the light of the injuries that were sustained by the plaintiff, the evidence of Doctor Taoi and the evidence of the plaintiff, I think it only reasonable for the court to conclude that pain killing medicines were required by the plaintiff throughout the last seven years. I do not consider the sum of One Hundred Dollars ($100.00) to be excessive and accordingly that amount is allowed making the total special damages for transport and medicine to Two Hundred and Fifty Dollars ($250.00).
The loss of income is claimed by the plaintiff for the period of 156 weeks. The plaintiff’s evidence was that she was unable to return to work for the period of 180 weeks, that is, until 4 October 2000. Her evidence further is that she received pay from her employers for the first six months and accordingly it is agreed between the parties that the total period is 156 weeks and that the wage rate is $65.00 and accordingly, it is agreed that there has been a loss of income by the plaintiff for Ten Thousand, One Hundred and Forty Dollars ($10,140.00).
In considering interest with respect to the various heads of damage I am again reminded of Attorney General of Fiji v Charles Valentine Civil Appeal No. ABU0019 of 1998S where the Court of Appeal found the range at that time for interest was between 5% and 7%.
As is detailed above, the court in that case also applied the principles expressed in Jefford v Gee, which I am obliged to apply here and accordingly, the special damages – transport, medicine and loss of income will have applied to them an interest rate that is one half of the interest rate applicable to the general damages.
I think an interest rate of 7% is appropriate in the circumstances. I note that the Writ issued some six months after the accident and that Jefford v Gee prescribes that interests be awarded on special damages from the date of the accident to the date of trial at half the appropriate rate and on general damages from the date of service of the writ to the date of trial. Due to the lengthy period of time, between the accident/issue and service of the writ and trial the period of six months, seems somewhat insignificant and accordingly I propose that interest run from the date of the accident to the date of trial, that is, the agreed period of seven years.
The damages accordingly will be: -
1. General damages – past - $20,000.00
2. Interest - $ 9,800.00
3. General damages – future - $10,000.00
4. Loss of earning capacity - $ 7,500.00
5. Special damages – transport & medicine- $ 250.00
6. Interest - $ 61.25
7. Loss of income - $10,140.00
8. Interest - $ 2,484.00
_____________________________________________________
TOTAL = $60,235.25
===============================================
Orders
JOHN CONNORS
JUDGE
AT LAUTOKA
5 April 2004
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