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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 6 OF 2015
BETWEEN : GAYATRI DEVI of Vunivau, Labasa, Disabled
1STPLAINTIFF
AND : MOHINDAR KUMAR MEHTAof Vunivau, Labasa, LICI Agent and as administrator de-tort-son in the estate of Amara Wati
2NDPLAINTIFF
AND : JAGAN NATH of Vaturekuka, Labasa, Prisoner
DEFENDANT
Appearances: Mr. A Sen of Maqbool & Co for the Plaintiffs
Defendant in Person
ASSESSMENT OF DAMAGES
Introduction
[1] This is a writ action for a claim for damages against the defendantfor injuries suffered by the plaintiff as a result of a criminal act. The defendant is now a serving prisoner.
[2] The plaintiffs bring this action for intentional injury caused upon them by the defendant at Vunivau Labasa on the 17 September 2012.
[3] The claim states that the plaintiffs are brother and sister and this is shown on the certificate of death. The 2nd plaintiff is the administrator and legal representative of the late Amra Wati and brings this action for the benefit of the estate under the Law Reform (Miscellaneous Provisions) Death and Interest Act Cap. 27.
[4] The writ of summons containing the statement of claim was issued on the 13 March 2015 and was served on the defendant at Labasa Prison three days later on the 16th March. There being no defence the plaintiff obtained default judgment on the 23 April 2015 with damages to be assessed.
[5] The summons for assessment of damages was served on the defendant at the Labasa Prison on the 26 May 2015 and the hearing for assessment of damages heard on the 18 February 2016 and the plaintiff’s submission received on the 2 March 2016.
Background
[6] The facts are that on or about the 17 September 2012 at Vunivau in Labasa the defendant assaulted and beat the 1st plaintiff by striking her head and various parts of her body with an axe causing serious injuries to her. It is further pleaded that on the same day the defendant caused the death of Amara Wati by also striking her with an axe.
[7] The 1st plaintiff’s particulars of injuries are:-
[8] The 1st plaintiff was admitted to the Labasa Hospital for six weeks and underwent constructive surgery and is said to need surgical intervention for her deformities. The statement of claim states that the 1st plaintiff claims the sum of $18,000:00 for special damages for medication, transport and miscellaneous expenses.
[9] Both plaintiffs further claim damages for aggravated and punitive damages as a result of the defendant’s malevolent intentions to cause severe injuries to them resulting in the loss of life to the said Amara Wati.
[10] The 2nd plaintiff claims for the loss of expectation of the life of the deceased and as a result the estate has suffered loss and damages. The estate claims special damages for funeral expenses of $5,000:00 and miscellaneous expenses of $5,000:00 and a further $5,000:00 for loss of expectation of life.
The Damages
The 1st Plaintiff
[11] The 1st plaintiff was 23 years of age at the time and as can be seen from the background information she suffered severe injuries as a result of the unlawful act. The evidence exhibited showed graphic pictures of injuries to her forehead, fingers and leg. The doctor’s report of 7 December 2012 lists 11 injuries suffered by her as a direct result of the incident. She was admitted for six weeks at the Labasa Hospital where she was operated upon on several occasions and was immobile or bed-ridden for approximately seven months. She stated that she also went to India for treatment at a cost of approximately $30K dollars although no evidence was provided and the Court is still uncertain whether or not she did go.
Special Damages
[12] She claims that as a result of the incident she will incur special damages for medication, transport and other miscellaneous expenses of $18,000:00. Counsel for the 1st plaintiff submitted that as special damages was not challenged the Court should follow the Honourable Justice Byrne’s decision in Paul Praveen Sharma –v- Attorney General’scase and award the amount claimed. I am not certain with respect that, that would be a wise move. In the first instance there were detailed items of claims and their amount of special damages argued and contested in the Paul Praveen Sharma’s case. Secondly the defendant in that matter argued vigorously about the lack of receipts produced to substantiate the amounts claimed, including claims for airfares and vitamin pills. Although Justice Byrne overruled the objections he used his discretion in considering the circumstances of the matter as deserving his allowing the claims. In respect of the airfares in particular he stated:-
“I reject this submission. I believe that these expenses were reasonably incurred and that it was only natural and by no means extravagant or unreasonable for the Plaintiff's parents to be with their son while he was undergoing treatment in Sydney.”
[13] In this matter the claim for special damages and the submission states briefly: “Medication, transport, miscellaneous expenses - $18,000:00. There is nothing in the above to satisfy the Court that the amount claimed is justified, there were no items of medication or transport or miscellaneous expenses providedsufficient for this court to state that it was reasonable under the circumstances.
[14] The court accepts the fact that the 1st plaintiff may need some medication in the future as a result of the trauma given her young age but with some reluctance I would only allow the sum of $2,000:00 under this head. This would include any transport costs already incurred.
[15] Therefore the total for special damages would be $2,000:00.
General Damages
Non Pecuniary Loss: Pain and Suffering
[16] Pain and suffering form part of the general damages and the 1st plaintiff is entitled to compensation for the pain and suffering both actual and prospective damages which is attributable to her injuries. It goes without saying that the pain suffered by her would most likely be on the higher scale. Generally speaking it is difficult to estimate the amount of pain and suffering experienced by a person. In The Medical Superintended &Anor. –v- Abdul Hafeez Ismail: CA 50/00 in which the deceased suffered pain for two days before his death. The Court of Appeal said in fixing the amount of $2,500:00:
We fix the amount at $2,500:00 but stress that as in all cases this 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. It is the particular end result which is important.
[17] In this matter the 1st plaintiff was admitted to the Labasa Hospital on the 17/9/12 and was discharged on the 24/10/12. Therefore she was hospitalised for approximately 38 days. This is not to say that she did not suffer any further pain upon her discharge.
[18] Her Counsel submitted that his client is entitled to $100,000:00 under this head of damage in that her pain and suffering is worse than in the Nasese Bus Company –v- Muni Chand (Appeal No. 40 of 2011matter but gave no reference as to where the difference lies. In most cases where the injury is serious it is difficult to distinguish between the consequences of the injury and the injury itself. Damages awarded often cover both and very often the award of damages or its amount tend to depend on the physical gravity of the injury. This is an attack on the person without reason which could be fatal not an accident per se. That alone makes the character of the pain and suffering and loss of amenities difficult to calculate.
[19] The Court of Appeal in Yanuca Island Ltd –v- Peter Elsworth (2002) FJCA 65reduced the damages from $120,000:00 to $50,000:00 for a person who continues to suffer neurological abnormalities. These figures however need to be considered in the context of not only the type of injuries but also the changes in the cost of living and what could be sufficient in the circumstances. I am therefore of the view, at least in this case, that taking into account the period of hospitalisation and the deliberate attempt to maim the 1st plaintiff and taking into account the changes in costs of living, asum of $70,000:00 appears to be sufficient. I therefore award $70,000:00 under this head of damage.
Pecuniary Loss: Loss of Future Earnings.
[20] The 1st plaintiff was 23 years of age when the incident happened. In evidence she states that she left school after Form 6 and has a Diploma in Elderly Care Giving. She was looking after her 92 year old grandfather at the time of the incident. He too was killed on that day. The doctor’s report states that the 1st plaintiff has a zone II injury to her left middle finger and is difficult to fix. She also has deep lacerations on her right thigh, knee and ankle and has difficulty walking. She could not find work due to her disability.
[21] There are two ways of calculating loss of future earnings, by the use of multiplier and multiplicand method or by a global award. As submitted by her Counsel when quoting the 6th Edition of Charlesworth on Negligence.
“...the normal method of assessment used by the courts is first to calculate as accurately as possible the net annual loss suffered,which is usually based on an average of the plaintiff’s pre-accident ‘take- home’ pay,as the multiplicand. Next a figure for a multiplier has to be chosen whichwill be appropriate in all the circumstances having regard to such matters as the age, the pre-accident state of health, the pastwork record and the important factor that the plaintiff will be receiving a lump sum payment, which it is expected will be invested.”
[22] The presumption here is that the Court would be able to calculate from evidence the 1st plaintiff’s pre-accident take home pay as the multiplicand. But what happens when there is no evidence that the 1st plaintiff was working at the time of the incident? This same type of problem was faced by the Judge in the first instance in Nasese Bus Ltd –v- Chand (2013) FJCA9before the appeal to the Court of Appeal. The Judge in the High Court came to the early conclusion that in the absence of any documented proof of wages or salary he was unable to calculate the loss of future earnings. The Court of Appeal overruled that view and estimated the likely loss of future earning capacity and awarded the sum of $25,000:00. The Court of appeal stated at paragraph 89:
“... I think that the risk justifies an award of damages, "speculative though it must be." I accept that there are some forms of employment that can be performed by the Respondent. At the date of trial she was only 24 and there was no suggestion that her life expectancy had been reduced as a result of her injuries. Under the circumstances she can reasonably be expected to be in and out of the workforce for at least 30 years. Although "there can only be a broad approach to this problem" the justice of the case requires some award for future loss and I would assess that amount at $25,000.00.”
[23] I am of the view that this should also be adopted here and I therefore award the 1st plaintiff the sum of $25,000:00as future loss of income.
Interest
[24] The plaintiff is entitled to interest on special damages at the rate of 3% p.a. from the date of the writ to hearing, which makes the total for special damages: $2000:00 plus $60:00 = $2,060:00.
[25] The total amount awarded for general damages are:-
(a) $70,000:00 for pain and suffering;
(b) $25,000:00 for loss of future income.
[26] The interest of 6% on the above general damages brings the amount to $95,000:00 x 6% = $100,700:00.
Costs
[27] The 1st plaintiff is also entitled to costs which I summarily fix at $3,000:00 taking into account that liability was not an issue.
[28] Therefore the total of damages inclusive of costs and interests payable to the 1st plaintiff amounts to $105,820:00.
The late Amra Wati through her son Mohindra Kumar as Administrator de-tort- son
[29] When a person suffers an injury as a result of a criminal act he/she has a right to claim damages from the person responsible for the injuries. However as is the case here, those that commit the criminal act are often persons of no substance and whilst compensation via the public purse is available in other jurisdictions, although limited, this is not available here. Whether this action is therefore an exercise in futility given that the defendant is a serving prisoner remains to be seen.
[30] At the hearing and in its submission the 2nd plaintiff relies only on damages under the Law Reform (Miscellaneous Provisions) Death and Interest Act.Because of the possible duplication of damages which may arise in claims of this nature where the Plaintiffs are both dependents for the purposes of Compensation to Relatives Act and the Administrator under Letters of Administration for claims under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act, the decision to proceed only with the one claim was a prudent one. This assessment of damages will now proceed only under the Law Reform (Miscellaneous Provisions Death and Interest Act Act.).
Special Damages
[31] The phrase special damages are used to signify that type of damage which the plaintiff must prove in certain cases as part of the cause of action but which is beyond the general damage and which must be pleaded.
[32] The 2ndPlaintiff pleads the following special damages:-
1. Funeral Expenses - $5,000:00
3. Loss of Expectation of Life - $5,000:00
[33] No documentary evidence was given regarding these two claims and the miscellaneous expenses in particular was specific to the legal costs incurred in obtaining letters of administration before the filing of the writ. As much as I can appreciate the expenses which may be incurred under this head I am of the view that the sum of $3,000:00 is more suitable and I award it accordingly.
Funeral Expenses
[34] In so far as the funeral expenses is concerned I will allow this expense notwithstanding the lack of documentary evidence in view of the generally accepted position in this country that the custom of various races in Fiji that there are indeed certain customary obligations which have to be fulfilled and that expenses are incurred in the fulfilment of those obligations; (see JonaMoli –v- Dr. Frances Bingo &Ors. Suva HCA No: 3335/1998). The Defendant did not raise any objection to this sum but I am of the view that a more suitable sum would be in the domain of $3,500:00and I therefore award it accordingly. Therefore the total amount for special damages would be $6,500:00.
General Damages.
Loss of Expectation of Life
[35] The 2nd Plaintiff claims the sum of $5,000:00 for the damages under this head. Loss of expectation of life is allowable in claims under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act but as earlier stated the sum assessed are relatively low. His Lordship Justice Atkin, in the House of Lords and Privy Council decision in Rose –v- Ford (1937) AC 826at p. 834 said:-
“...I am of opinion therefore that a living person can claim damages for loss of expectation of life. If he can I think that right is vested in him in life, and on his death passes under the 1934 Act (equivalent to our Law Reform Cap.27 Act) to his personal representative. I do not see any reason why the fact that the expectation is realised, i.e. that death comes at the time anticipated or sooner, should make any difference. ...”
[36] This was further confirmed by Lord Morris in Yorkshire Electricity Board –v- Naylor (1972) 2 ALLER 1at p.6:-
"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. ......He lost what is usually called his expectation of life. The loss was something personal to himself......"
[37] This was followed in Fiji in by Speight JA Daya Ram –v Peni Cara & Ors. (1983) 29 FLR 147 at 148 in which he said:-
"Turning to the present case we will deal first with the lesser items challenged namely loss of expectation of life. The basis of making an award for loss sustained by the removal of proposed predominantly happy life...."
[38] The sum awarded by the Courts here vary and range from $1,250:00 (Daya Ram-v- Peni Cara) to $2,500:00 (HariPratap –v- Attorney General).
[39] There was no submission from Counsel as to why the sum of $5000:00 was considered appropriate. Given that the sum awarded under this head is within the vicinity of $2,500:00 I am of the view that the sum of $2,500:00is sufficient.
[40] The total sum awarded for loss of expectation of life is therefore $2,500:00.
Future Loss or “The Lost Years”
[41] In the oft quoted words of Lord Blackburn, the general principle of compensation is to award “that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation”;(Livingstone-v- Raywards Coal Co. [1880] UKHL 3; (1880) 5 App.Cas. 25, 39)
[42] The conventional method of calculating or approaching the assessment of damages for lost years is as follows:-
(a) The net earnings as at the time of the death;
(b) From the net earnings is deducted a sum calculated to be an amount used by the deceased for himself;
(c) The above sum is then multiplied by the actual number of lost years which has to be ascertained by the Court taking into account the contingencies and vicissitudes of life.
[43] The deceased or the 2nd Plaintiff at the time of her death was 52 years of age and is said to own a sugar cane farm with a cane production of over 100 tons per year. This evidence was disputed by the defendant who states that as far as he was aware the plaintiff did not earn any money from the farm. However when the defendant gave evidence he agreed that she had a cane farm but that he did not know how much was derived from the farm. He stated though that he supported her and that there was a debt on the farm to FSC and to FDB to which he contributed to the payments of the debt. No evidence of these payments were provided as evidence. He confirmed however that the deceased had a taxi which generated an income of $120:00 per month. This income was not pleaded and I do not wish to take that into account.
[44] Computer generated copies of details of sugar production and payments from the Fiji Sugar Corporation were tendered into evidence. This document showed that a farm number 19044 in the name of AmraWati had produced cane for the period from 2008 to 2012. In the year 2007 however the farm was in the name of one Ashok Metha. It is also clear from the evidence that there was a caretaker on the farm and that any income derived was shared equally between the deceased and the caretaker. As a starting point I would divide the total cane proceeds into two to take into account the caretaker’s share this would mean that the deceased’s share would be 130 tons per year with a an income of approximately $6,000:00 per year. If we are to consider her expenses as approximately one third of her income then her net income per year would be approximately be $4,000:00. Using the same multiplier as submitted by her counsel her total net income would be $4000:00 X 8 = $32,000:00.
[45] This would mean that her total for lost years would amount to $32,000:00.
Interest
[46] As submitted by Counsel 3% interest for the specific damages and 6% for general damages is applicable from the date of the writ to the date of hearing. The total interest for special damages $6,500:00 x 3% = $6,695:00. The total interest payable on general damages would be $34,500:00 x 6%=$36,570:00.
Total Damages
[47] The total Damages inclusive of interest payable to the 2nd Plaintiff is therefore $43,265:00.
Costs
[48] Given that the matter did not proceed to a hearing proper and that the liability was not an issue I would use my discretion and award costs for the 2nd Plaintiff to the sum of $3,000:00.
[49] Therefore the total damages payable to the 2nd plaintiff inclusive of interests and costs is $46,265:00.
H. Robinson
Master
High Court, Labasa
27 May 2016
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