IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 198 of 2009L

BETWEEN:

MUNIAMMA of Wailailai, Ba, and Domestic Duties in her personal capacity and as the sole Executrix and Trustee for the Estate of KRISHNA SWAMY aka KISTASWAMY SAMI late of Wailailai, Ba, Fiji, Cultivator.
Plaintiff

AND:

SASHI SANJAY CHETTY of Votualevu, Nadi, Liquor Manager.
Defendant

JUDGMENT

Judgment of : Ms. Dias Wickramasinghe J.
Counsel : Mr. S. Maharaj for the plaintiff
 Ms. Q.Vosanavanua for the defendant.
Solicitors : Messrs Suresh Maharaj & Associates for the 
 plaintiff
 Iqbal Khan & Associates for the defendant

Date of Judgment : 7 November 2011

Keywords: motor traffic accident; payment of special damages in the absence of receipts; general damages; 	

 INTRODUCTION

[1]	The plaintiff instituted this action under the Compensation to Relatives Act, (Cap 29, Laws of Fiji) and Law Reform (Miscellaneous Provisions) (Death and Interest) Act, (Cap 27, Laws of Fiji) as Executrix and Trustee of the estate of Krishna Swamy. 

[2]	The plaintiff claims compensation and damages as the widow for herself and on behalf of her daughter Mohini Lata and the three grandchildren, on the basis that they were all dependants of the deceased Krishna Swamy, (Deceased) who succumbed to his injuries in a motor traffic accident. 

BACKGROUND

[3]	On 19 December 2007, the defendant was driving vehicle No. EB 914 from the direction of Tavua towards Ba when he knocked the deceased who was grazing his cows, sitting on the opposite side of the road on the grass verge. The accident took place off the Kings Road near Etatoko Junction, Ba at around 4.30pm or thereabouts.

[4]	According to the sketch drawn by the police (Exhibit A-1) the bitumen part of the road consisted of 7.4 meters in length and beyond the bitumen on either side of the road are grass verge and a drain. The grass verge where the deceased was alleged to be sitting was 3.6 meters in width. 

[5]	The plaintiff alleged negligence of the defendant and the defendant alleges contributory negligence of the deceased. 

[6]	The defendant was charged in the Magistrate Court of Ba, for occasioning death by dangerous driving under the Land Transport Authority Act 1988, and the case is currently pending in court.  

HEARING 

[7]	On Friday, 21 October 2011, the defendant filed an ex-parte summons seeking leave to file Third Party Notice against The New India Assurance Company. I then listed the matter for mention on the same day as the hearing was already fixed for the following Monday, 24 October 2011. I disallowed the application for its belatedness and the impermissibility of vacating the hearing date to accommodate the summons. The defendant should have considered subrogation on a much earlier date. 

[8]	At the trial, the plaintiff led the evidence of four witnesses; PW1- Filimoni Nale (the Police investigating officer), PW2- Ravindra Lal (the only eye witness to the accident), PW3-Satya Nadan (ex- son in law of the deceased) and the plaintiff-Muniamma, (the widow of the deceased). The defense led only the evidence of the defendant. With consent plaintiff filed two bundles of documents marked Exhibits P1 and P2 and the defendant one bundle of documents Exhibit D1. The parties also filed the evidence-in-chief by affidavit as ordered by court under O.38 r.2 of the High Court Rules, 1988. At the conclusion of the hearing both parties also filed written submissions in support of their respective cases. 

LEGAL MATRIX

[9]	The parties moved court to resolve the following issues:

(i) Was the accident caused due to the sole negligence of the defendant?

(ii) Was the accident caused due to the contributory negligence of the deceased? 

(iii) What is the quantum of damages that must be paid to the plaintiff and the dependants, if the case is determined in favour of the plaintiff?

[10]	Let me now consider these issues. 

 Issue no. 1- Was the accident caused due to the sole negligence of the defendant? 

[11]	The defendant admits the accident. The evidence before me reveals that the defendant was driving his vehicle from Tavua towards Ba and had knocked the deceased who was seated on the grass verge on the opposite side of the road. 

[12]	The defendant states that the accident occurred when he attempted to avoid collision with a bullock crossing the road. He had then swerved the vehicle to the right side of the road and had knocked the deceased who was sitting on the grass verge. He also said he did not see the deceased sitting on the grass verge when he swerved to his right. The defendant states that he was driving at the speed of about 60 to 70 kilo meters per hour. 

[13]	The only eyewitness to the incident, Ravindra Lal (PW3) in his evidence said about half an hour before the accident he went to Ba and saw the deceased grazing his cows. Whilst returning from Ba, he had seen a vehicle being driven towards Ba at a high speed and knocking the deceased who was seated on the grass verge of the road on the opposite side. He had then found the deceased lying unconscious and had requested a passing vehicle to inform the police. In his evidence, he also said he did not see any cows crossing the road and in fact saw two cows grazing in the drain adjacent to the grass verge. He also said the defendant’s vehicle was stopped inside the drain facing Tavua. He was about 200m from the place of the accident when he had witnessed the accident. In cross-examination it was suggested to the witness that he would not have seen the cow due to the distance. 

[14]	The police-investigating officer PW1- Filimoni Nale informed court that he learnt of the accident from a passing vehicle while he was investigating another accident in the vicinity. Upon arrival, he had checked the pulse of the injured and found him dead. With the assistance of the defendant, he had then prepared a rough sketch, which was produced mark ‘A-1’ attached to his affidavit evidence (marked P3). 

[15]	Let me now set out the salient points of the rough sketch. The bitumen width of the road is 7.4 meters in length and the shoulder of the road (grass verge) is 3.6 meters in width. Adjacent to the grass edge is a drain. The point of impact was approximately 1.4 meters away from the edge of the bitumen road as pointed out by the defendant. A hat, which had been identified as belonging to the deceased by his relatives, was found at this point. The body of the deceased was found 17.4 meters away from the place of impact. There are no eyewitnesses to confirm whether the deceased was thrown off or was dragged by the vehicle when it first collided with the deceased. The vehicle, EB 914 was found inside the drain 71.1 meters from the place of collision. The tyre marks, 123.4 meters long as drawn in the sketch, confirms that the vehicle had been driven on a ‘zig zag pattern’. i.e., it had been driven on the left side of the road and had then swerved towards right (the wrong side of the road), knocked the deceased and had again swerved to the left and then to the right and had been finally veered off the road into the drain facing towards Tavua. The evidence relating to tyre marks are unchallenged. 

[16]	Under cross-examination, the defendant disagreed with the rough sketch prepared by police and said his vehicle stopped inside the drain facing Ba and not Tavua as shown in the sketch. He said he felt nervous and therefore drove off before finally stopping the vehicle. After the accident, he had walked to the deceased but had not noticed the tyre marks. He also said the police officer prepared the sketch at the police station and not at the scene as per the evidence. 

[17]	The defendant was present in court when the plaintiff’s witness gave evidence and therefore had the opportunity of listening to them. However, the police investigation officer was not cross-examined about the inaccuracy of the rough sketch and especially the side of the vehicle it was facing, when the police arrived at the scene. In my mind, this is a material item of evidence to determine negligence. The defendant throughout his cross-examination only referred to one bullock crossing the road and when pointed out his contradiction as stated in the examination-in-chief, told that he meant one was crossing the road and the other was on the opposite side of the road. I also found his evidence not to be in line with his defense of contributory negligence. The statement of defense sets out that the deceased was seated on the middle of the road on the left side of the road and in court the defendant said the deceased was seated in the grass verge on the opposite side of the road. I am not satisfied with the truthfulness of the defendant‘s evidence and accordingly find his evidence not credible. 

[18]	In my mind the 123.7m length tyre marks on a zig zag pattern and the dead body found 17.4 meters away from the place of accident denotes that the defendant had driven the vehicle at an excessive speed. I do not have any evidence that the defendant was under the influence of liquor. It had not been raining and therefore the road could not have been slippery. The accident occurred around 4.30p.m. and therefore it is safe for me to infer that there could not have been any visible impediment at the time of the accident. It appears that the defendant had lost control of the vehicle due to the excessive speed he was driving and collided with the deceased. The impact either threw the deceased 17.4 meters away or else dragged him. The distance of 71.1 meters where the vehicle was finally found, facing the opposite direction also demonstrate that the defendant had totally lost control of the vehicle. I do not accept the evidence of the defendant that a cow crossed the road. There are several reasons for my judgment. If he saw the cow then he could have slowed down even if he wanted to overtake the cow. If he came at a reasonable speed, then he would have seen the deceased. The road was straight and the eye witness Ravindra Lal would have seen if there was a cow. I accept the evidence of Ravindra Lal’s on this fact. I have no doubt to conclude that the defendant drove the vehicle at an excessive speed and thereby negligently knocked the deceased where he succumbed to his injuries. 

[19]	In the circumstances, I conclude that the accident occurred due to the sole negligence of the defendant. 

Issue no. 2- Was the accident caused due to the contributory negligence of the deceased? 

[20]	Although the defendant pleaded contributory negligence as a defense there is not a shred of evidence to support the defense. I therefore dismiss this defense. 

[21]	The defendant in the written submissions for the first time moved court to consider the defense of inevitable accident on the basis that ‘notwithstanding the exercise of all reasonable care and skill on the part of the defendant, he was unable to avoid the accident’. Although the defendant has a right to amend the pleadings, an application was not made to amend the defense. The defendant cannot take up a new defense without giving notice or opportunity to the plaintiff to meet the issue. Nor was there any evidence adduced to prove this new defense of inevitable accident. In any event, I have already concluded that the accident occurred due to the negligence of the defendant. I therefore dismiss this issue without further consideration. 

Issue no. 3- What is the quantum of damages that must be paid to the plaintiff and the dependants

[22]	The plaintiff in the prayer of the writ of summon claims for damages under the following heads:

a)	Special Damages in the sum of $3679.50

b)	Damages under Compensation to Relative Act, Cap 29, Laws of Fiji

c)	General Damages and loss suffered by the Estate of the deceased.

d)	Interest.

 Special Damages

[23]	The plaintiff claims the sum of $3679.50 by way of special damages as set out in paragraph 10 of the Statement of Claim.

“Particulars of special damages”	
Funeral Expenses	- $2000.00
	
Travelling Expenses	- $ 500.00
	
Police Report	- $ 22.50
	
LTA Search	- $ 7.00
	
Letters of Administration	- $1000.00
	
Incidentals	- $ 150.00
	
Total	- $3679.50

[24]	The plaintiff has not produced any receipts in proof of her claim for special damages. The plaintiff request Court to take judicial notice of the claims. The plaintiff further submits that the amount claimed under each head is reasonable therefore seeks judgment on the full amount.

[25]	The defendant contends that in the absence of receipts Court cannot consider special damages and cites Mahendra Naidu v Ravindra Patel C.A. No.105/1979 where it was said:

No receipt or evidence has been tendered to show that hospital fees amounted to $50.00 and I do not accept that figure. I am unable to guess what it would be and I do not allow it. As Lord Goddard and the F.C.A have pointed out claimants are expected to call evidence supporting their claims”.

[26]	At the outset I must state that I agree with the defendant’s submission. As a rule a court must considerer special damages only when supporting documents are available. If not, as said in the case of Mahendra Naidu (supra) the court cannot award damages on guessed figures and therefore as a rule, a court must not consider special damages in the absence of supporting documents. Moreover as a rule, the court must not take judicial notice on such payments unless there is credible evidence in support.

[27]	However, under the principle of reasonableness, at times the Courts had considered special damages in the absence of receipts, especially relating to funeral expenses. The plaintiff in support of this argument cites Moli v Bingwor [2003] FJHC 279; HBC0335 of 1998(4 April 2003) where Pathik J. considered at length the definition attributed to ‘funeral’ by Mayo J. in Public Trustee v Bednarezyk (1959) SASR 178 at 180 (quoting from book by Luntz on Assessment of Damages 3rd Ed. p.439) as follows:

‘The word ‘funeral’ is usually taken to comprehend the disposal of human remain including accompanying rites and ceremonies, that is to say, the procedure of, and appertaining to burial or cremation, in the course of which the body is prepared for burial and conveyed by cortege to the necropolis. Such initial stages as acquisition of burial plot, public notice, obtaining a certificate of death, permission to cremate or bury, will form part of the procedure and the cost will be funeral expenses’.

Pathik J. in the same case further said:

‘According to custom there are certain expenses, such as in this case, for the “reguregu” that one cannot avoid and it certainly is part of the expenses relating to the funeral of the deceased. In the Fiji context, bearing in mind the traditional Fijian ceremony associated with the funeral I will allow a reasonable sum under this head. In Kesi Ganikeli Liva v Mahendra Pal Chaudhary (Supreme Court C.A. 391/79) the then Chief Registrar (now Scott J) awarded the sum of $1500 for funeral expenses; and in Shiu Shankar s/o Madhwan & Anor (Sup. Ct. Ltk. Ca.A. 31/74) Dyke J stated that “religious rites following the death of a Hindu person are reasonable and the claim under this head is allowed”.

[28]	The plaintiff alleges according to the Hindu Religion rituals and rites, there is 13 to 16 days daily gathering, and, also prayers after 6 months and then the last prayer at or before 12 months from the death. 

[29]	The fact that Kirshna Swamy is dead is not disputed. I have already determined that the cause of action arose due to the negligent driving of the defendant. It is a fact that the plaintiff had to conduct the funeral and the other religious rites and rituals for her husband, late Kirshna Swamy. Section 11 of the Compensation to Relatives Act, upon which this action is based, states that damages may be awarded for funeral expenses. In the circumstances I am of the view that $2000.00 claimed by the plaintiff is reasonable and accordingly I award this sum. 

[30]	At the outset, I said that the court must as a rule request receipts or other acceptable evidence to consider special damages. The principle of reasonableness should only be considered for payments where the parties would have difficulty in obtaining receipts and the court would have to examine such instances subjectively.

[31]	The plaintiff resides near the main road off King’s Road. She is claiming $150 as incidentals and $500 as travelling. In my mind the $500.00 claim for travelling seems excessive and accordingly under the principle of reasonableness I award $250.00 for travelling and $150 for incidentals in the absence of any receipts in proof thereof. 

[32]	I have considered the other special damages claimed under this heading. The plaintiff is claiming $1000.00 for obtaining Letters of Administration. She is also claiming $22.50 and $7 respectively for obtaining Police Report and LTA Search. The plaintiff has not explained her difficulty in obtaining these receipts. I am unable to guess the expenses that the plaintiff had to incur in obtaining these documents. I accordingly do not make any award under this heading in the absence of receipts. 

[33]	Accordingly, I award $2400.00 under Special Damages.

General damages on loss of dependency

[34]	Section 5 of the Compensation to Relatives Act Cap. 29 provides that "the court may give to the parties respectively for whom and for whose benefit the action was brought such damages as are considered proportionate to the injury resulting from the death" on an action brought by the executor or administrator of the deceased person.

[35]	I am convinced from the evidence adduced before me that the plaintiff is the widow of the deceased and was fully dependant on the deceased at the time of his death. The Decree Nisi which was produced in court marked Exhibit P1 at page 5 indicates that the custody of the children were given to Mohini Lata, with reasonable access to Satya Nadan since 28 September 2004. The birth certificates of the three children are also filed of record. In the absence of evidence to the contrary of this unchallenged evidence, I am convinced that the plaintiff-Muniamma, Mohini Lata and her three children were dependant on the deceased- Krishna Swamy, and the deceased was the sole breadwinner of the family.

[36]	The plaintiff has submitted documents (1) to (8) in the plaintiff's supplementary Bundle of Documents (Exhibit-P2). Documents 1-7 demonstrates that the deceased was harvesting sugar cane on an average in the sum of $6437.00 annually (total – 45064 /7= $6437.00) which is $123.00 weekly ($6437/52 = $123.00).

[37]	The plaintiff- Muniamma, in her evidence-in-chief (Exhibit P6) under paragraph (9) of the affidavit states that apart from cane proceeds, her late husband received income from various other sources. This gave them the following income per week:

1) Sale of Milk	- $120.00 to $140.00	
2) Sale of Ghee	- $100.00 to $130.00	
3) Poultry including eggs	- $200.00 to $250.00	
4) Vegetables	- $150.00 to $170.00	
TOTAL	- $570.00 to $690.00	

[38]	The plaintiff also said the deceased sold pork meat and got an annual income of about $1600.00 to $1800.00. However there is no documentary evidence produced in court in support of this income. In evidence the plaintiff said the vegetables are sold by the side of the road and the others to vendors in the market and they do not issue receipts. In general commercial dealings, I accept the evidence of the plaintiff that a vendor would not be able to obtain receipts after the sale of the produce by the way side of the road. 

[39]	The counsel for the plaintiff, Mr. Maharaj says for the purpose of calculating damages, it can be safely inferred that the decease received income from various other sources at an average of at least $500.00 per week inclusive of the pork meat sold by the deceased annually in the sum of $1600.00 to $1800.00. Satya Nadan in his evidence corroborated the evidence of Muniamma, which was not strongly challenged by the defense. 

[40]	I am satisfied with the evidence led before me that the family derived an extra income other than from the cane farm.

[41]	However in the absence of any documentary evidence to demonstrate the family earning such as bank books, etc I will award $200 p.w. as a reasonable weekly income from extra sources from the farm. In assessing this figure I have guided myself with words of Their Lordships in the case of Medical Superintendent v Ismail [2001] FJCA 29; ABU 00580U.2000S(18 October 2001) where they said '….assessment relates to the particular circumstances of the case. Awards such as these are not capable of mathematical analysis, and are not to be made by applying some hourly or daily rate following a comparison with other cases'. 

[42]	Accordingly, I find that the deceased had a total earning from the cane farming $123.00 per week and $200.00 from all other sources amounting to a total of $323.00 per week.

[43]	Mr. Maharaj says that conventionally the Court in assessing compensation and damages in fatal accident cases attribute that, the deceased would spend upon himself or for his own purposes at least 1/3 of the net income. I am happy to apply the same formula in this case. That is $107.00 ($323.00/3) for deceased expenditure which leaves the dependency of Muniamma, her daughter Mohini Lata and her three children on a weekly basis $216.00. ($323.00 -$=$107.00).

[44]	Mr. Maharaj also moves court to use the same conventional way of assessing damages and compensation by courts in this case i.e using multiplier and awarded on the multiplicand.

[45]	It is the plaintiff's case that although the deceased was 71 years of age he was very healthy, had no sickness, was a hard working person and worked alone in his farm without assistance. He had received additional income from all other sources to enable him to support his own daughter Mohini Lata and his three grand children. Satya Nadan in his evidence said he did not support his ex-wife and his children. He also said after the demise of his father-in-law on his ex mother-in-law Muniamma's invitation he had started working in the farm to get it back to its original state. He states that he is paid $10.00 per day for his services. Mr. Maharaj states that the deceased would have lived beyond 76 years in view of his good health and therefore submits that multiplier of 5 as reasonable in calculating the award.

[46]	I have examined the oral testimony of Muniamma and Satya Nadan relating to the income received from the live stocks and the documentary evidence of the cane farm income in this regard. With the demise of the sole breadwinner-Krishna Swamy, the family had been forced to sell the live stocks therefore depriving them of the extra income. It appears that they had continued to receive the income from the cane farm and no doubt had hardships and with inconvenience. However admittedly, since late 2009, Satya Nadan the ex- son-in-law had come in aid to assist the family although for wages, and his evidence was that he had started working in the farm and is currently earning from live stocks about $700 to $750 a month. 

[47]	Accident took place on 17 December 2007, Satya Nadan was employed since late 2009. It would have taken Satya Nadan another year or so to bring back the income from live stocks to its present stage where he referred to as normal like the days of the deceased. Satya Nadan explains that the considerable drop of the income from the cane field in 2010 was due to replanting. The plaintiff is forced to employ the services on the payment of $10 a day to earn the family income that they enjoyed before the death of Krishna Swamy. On an average 6 day payment the plaintiff has to incur approximately $240 a month and $1200 a year due to the death of her husband on labour. Admittedly with the assistance of Satya Nadan, the family after 2 years seems to be making the same income. Accordingly I am of the view the multiplier of 3 would be reasonable after considering the $1200 p.a additional expenses that the plaintiff would have incur on labour.

[48]	Thus using the multiplier of 3 and dependency figure of $216.00, I award under $33696.00 under this head. ($216.00x52x3) 

Pain and suffering

[49]	The plaintiff is seeking damages for pain and suffering in a sum of $5000. Krishna Swamy died instantly. I therefore do not award any damages under this heading.

Loss of consortium

[50]	The deceased was 71 years old at the time of his death. At the time of the accident the plaintiff- Muniamma was 69 years old and appeared to be a healthy person. Mr. Maharaj submits that Muniamma, has been deprived of consortium of her husband in her golden years of life due to the sudden death of her husband, therefore moves for a sum of $5000.00 under this head. Evidence was not led before me to determine the relationship the couple shared. Having considered that the deceased was the sole breadwinner and head of family supporting his wife, daughter and the grandchildren his loss must create loss of consortium for the family. In Parvati v Attorney-General & Ministry of Health Civil Action No. HBC0063/94, Scott J awarded $3000 for loss of consortium in respect of the death of a man who lived for 8 years after an injury which eventually caused his death. In Ismail v Medical Superintendent [2000] FJHC 87, Shammed J award $5000 under this head for a deceased who was only 38 years old.

[51]	Having considered the age of the deceased and the plaintiff, I award $1500.00 under this head. 

INTEREST 

[52]	Mr. Maharaj claims interest at the rate of 6% from the date of accident that is from 19 December 2007 until payment of the judgment sum and cite Tevita Tabua Waqabaca, a minor by next friend of Josaia Mr. Waqabaca v Dr. Etika Udiniabola & Attorney General Civil Action No. 60 of 1993, [20 March, 1998] where Pathik J awarded interest at the 8%; Jai Narayan v Attorney General, Civil Appeal No. 611 of 1993 Scott J. awarded interest at the rate of 8% from the date of death until the date of Judgment; Navnesh Neil Singh v Attorney General, Civil Action No.HBC 0026 of 1995, [10 June 1999] where Byrne J awarded interest at the rate of 6%. 

[53]	In my judgment, 6% is a reasonable rate of interest, and I award same from the date of filing of this action. i.e. from 23 October 2009. 

COSTS

[54]	I summarily assess Costs at $2000.00 

CONCLUSION 

[55]	Accordingly, the defendant must pay special damages in the sum of $2400.50, general damages and dependency in the sum of $ 33696.00 and loss of consortium in the sum of $1500.00 in addition to cost of $2000.00 and the interest. 

ORDERS 

1)	The defendant to pay the plaintiff a sum of $37,596.00 and interest at 6% from 23 December 2009 until payment is made in full. 

2)	The defendant to pay the plaintiff a sum of $2000.00 as Costs of this suit. 

3)	All sums of money to be paid within 30 days hereof. 

D. Dias Wickramasinghe
Judge