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Pelosi v Director of Health [2008] TVHC 9; Civil Case 03 of 2006 (23 May 2008)

IN THE HIGH COURT AT TUVALU
AT FUNAFUTI
Civil Jurisdiction

Civil case no. 3/06

Between:

LAUNIU PELOSI
Plaintiff

V

And

DIRECTOR OF HEALTH
First Defendant

And:

ATTORNEY GENERAL
Second Defendant

BEFORE THE CHIEF JUSTICE

J Grover for plaintiff
S Earl for defendants

Hearing: 21 May 2008
Ruling: 23 May 2008

RULING

This action was brought by the plaintiff (as the administrator of the estate of his deceased wife who died on 3 October 1998) on behalf of the estate under the Law Reform (Miscellaneous Provisions) Act, 1934, and of himself, their two children and the deceased’s mother under the Fatal Accidents Acts, 1856-1959.

I apportioned the damages including sums to the two children and directed that they should be paid into interest bearing saving accounts. I also invited counsel to address me on the appropriate rate of interest and whether such rate should be reduced for the period from the date of death to the filing of the writ "in view of the unexplained delay in bringing the action".

It appears that there has been some confusion about the manner of payment of the awards to the children into savings accounts. It also now appears that the son who is to receive 15% of the sum awarded is, in fact, an adult so it is only the daughter whose damages need to be protected.

I, therefore, direct that the damages which are payable to the daughter, Mary Launiu, shall be paid to the High Court. The Registrar shall, within five days of receiving such payment, pay the sum into an interest bearing savings account with the Bank of Tuvalu. The account is to be named "High Court Case number 3/06, Mary Launiu". The signatories on the account shall be the Senior Magistrate acting on instructions of the Chief Justice and the account shall become payable when the child reaches her 18th birthday.

It is accepted by counsel that the appropriate rate of interest on the judgment sum is 5%. The plaintiff has filed an affidavit explaining the delay. I need not set it out but it is clear that any delay was the result of the actions of his legal advisers between his wife’s death and early 2005. During that period, the lawyer for the plaintiff was pursuing a settlement despite the plaintiffs instructions to institute an action in court. Later, the lawyer sought independent medical advice from a specialist in Australia which further delayed the action..

Eventually a draft statement of claim was sent to the plaintiff on 18 April 2002 and, on the same day, a letter was written by the plaintiffs lawyer to the Registrar stating:

"I enclose the following for issue and service as soon as possible:

1. Writ of Summons;

2. Statement of Claim;

3. Medical Reports;

4. Receipt for Court Fee."

I accept that the plaintiff believed that the documents had been filed but, when a new People’s Lawyer started in 2005 and the plaintiff inquired about the case, it was discovered that there was no record with the Court. What appears to be a top copy of the letter is on the file of the plaintiffs lawyer.

The present writ was filed on 6 March 2006 and Mr Earl, for the defendants, points out that should be the date to which any reduction in the rate of interest should be taken. Any other course would, he suggests, make the award of interest punitive to the defendants. On the other hand, if the plaintiff is deprived of the interest, the true value of the award will be eroded through no fault of his own.

Normally courts in other jurisdictions will not accept that the failure of a party’s legal adviser should be a ground for changing a decision and will leave the party to pursue the defaulting lawyer. I cannot consider that should apply in Tuvalu where there is little or no chance that such a course would, or even could, be a practical possibility.

I asked counsel to address me on this issue because of the lack of explanation for the delay. The explanation shows no fault by the plaintiff personally and I see no justification for denying him interest at the normal rate of 5.0% from the date of the death until payment.

Dated: 23rd day of May 2008

Hon. Gordon Ward
CHIEF JUSTICE