HIGH COURT, TAMALE
11 JUNE 1975
ATA-BEDU J
CASES REFERRED TO
(1) Benham v. Gambling [1941] A.C. 157; [1941] 1 All E.R. 7; 164 L.T. 290; 57 T.L.R. 177; 84 S.J.703, H.L.
(2) Barnett v. Cohen [1921] 2 K.B. 461; 90 L.J.K.B. 1307; 125 L.T. 733; 37 T.L.R. 629; 19 L.G.R.623.
(3) Dolbey v. Godwin [1955] 1 W.L.R. 553; [1951] 2 All E.R. 166; 99 S.J. 335, C.A.
NATURE OF PROCEEDINGS
ACTION for damages for negligence by the dependants of a deceased child under the provisions of the Civil Liability Act, 1963 (Act 176). The facts are sufficiently stated in the judgment.
COUNSEL
R. I. Alhassan for the plaintiff.
No appearance by or on behalf of the defendant.
[p.156] of [1975] 2 GLR 155
JUDGMENT OF ATA-BEDU J
The writ of summons accompanied by a statement of claim in this action was by leave of the court served on 26 September 1974 on the defendant.
The action is founded in negligence and has been brought for the benefit of the estate as well as for the dependants of the deceased under the provisions of the Civil Liability Act, 1963 (Act 176). The deceased was on 4 April 1971 at about 9.50 a.m. crossing the Tamale-Bolgatanga road when the defendant, who was driving vehicle No. J. 4171-CI-1 towards Bolgatanga direction, knocked down the deceased at Savelugu town. The claim made is for: ¢100.00 as special damages for funeral expenses and ¢3,000.00 general damages for loss of normal expectation of life to the estate of the deceased and for loss and damage to the dependents, who are the plaintiffs aged 35 years as the mother and one Yakubu Dagomba aged 55 years as the father of the deceased.
In default of entry of appearance by or on behalf of the defendant, the plaintiff entered interlocutory judgment with the leave of the court on 10 January 1975 and proceeded to give evidence for the assessment of the damages on 18 February 1975. The plaintiff, who is the mother and a trader, was at the material time sitting with the deceased by her wares on the side of the Tamale-Bolgatanga road when with her permission the deceased left her to play with some girls on the other side of the road. The deceased did not get to them when she turned back to come to the plaintiff. On her way back, the deceased is alleged to have looked to the left and to the right but just about six yards away from the plaintiff, she was hit by a green-coloured car driven by a white man. The deceased was carried away on the left side of the bonnet of the car to a distance of about twelve yards and thrown into a gutter and instantly killed. The deceased was aged nine years at the time. According to the plaintiff, the car was being driven very fast and the driver did not sound any horn. From the evidence of the plaintiff I am in no doubt and I find that the liability for negligence on the part of the defendant has been established by the breach of his duty to observe the following precautions appropriate in the circumstances at that particular moment:
(1) Driving too fast in a built up area.
(2) Failure to keep any or proper lookout or observe or heed the presence of the deceased on the road.
(3) Failure to apply his brakes in time or at all or so to steer or control his car as to avoid knocking down the deceased.
(4) Failure to give any warning of his approach.
The special damages claimed as funeral expenses in the statement of claim is ¢100.00 but I find from the evidence of the plaintiff that the expenses for the funeral celebrations at her house and at the house of her (the plaintiff’s) uncle, during each of which food items were purchased and presented together with cash to the Moslems who said prayers amounted to a total of ¢30.83 only.
In the process of assessing the general damages I am required to consider the heads: (1) loss of expectation of life and (2) the loss and damage.
[p.157] of [1975] 2 GLR 155
The damages for loss of expectation of life forms part of the estate of the deceased and as is provided by section 27 (1) of Act 176 that “Damages recoverable for the benefit of the estate … shall not include exemplary damages.” This provision, I think, is in consonance with the principles formulated in Benham v. Gambling [1941] 1 All E.R. 7, H.L. that the damages should not be calculated solely or mainly on the basis of the length of life which is lost, but on the basis of loss of a measure of prospective happiness and that since no confident estimate of prospective happiness can be made in the case of a child due to the uncertainties about its future, the damages for such a loss should be kept at a low level. In the case of Benham the sum of £200 was said to be the maximum.
What will suffice to sustain the claim for the loss and damage which is a claim for loss of support or a financial loss is not only total dependence on the deceased but also partial dependence however slight and uncertain and even a contribution in the form of services. None of the dependents can succeed unless they can show by evidence actual dependence on the deceased for support or financial benefit at or before his death or the probability of receiving the same in the future if the deceased had lived. As was said by McCardie J. in Barnett v. Cohen [1921] 2 K.B. 461 at p. 470: “the plaintiff must adduce such evidence as affords the judge a reasonable basis on which to infer that pecuniary damage has been inflicted on the plaintiff.”
The view I have formed from the evidence is that no loss of any kind has been proved to sustain the claim on behalf of the father of the deceased as a dependent. Nothing has been shown in the evidence, except his age, that he was deriving any financial benefit of any sort from the deceased in her lifetime. There is not an iota of evidence to show even the probability of a reasonable expectation of any such benefit if the deceased had lived. He is not mentioned at least as having concerned himself in the affairs of the deceased before, at or after her death. Upon the evidence it seems reasonable to conclude that he has suffered no loss and the mere fact that he is the father without more and a speculative possibility that he might have received some financial benefit or support from the deceased if she had lived cannot support the claim on his behalf. His entitlement to a portion of any damages awarded is therefore pressed to extinction due to the absence of any basis for assessment.
The plaintiff, who had been granted administration, claims both as the administratrix for the benefit of the estate and for herself as a dependant. In her case, the evidence has established not only relationship but also actual dependence to support her claims for loss of financial benefit and loss of expectation of life. Taking the daily profits of ¢1.50 earned by the deceased as the basis it would seem that the deceased was contributing to the family income the sum of ¢360.00 a year. The evidence shows that the deceased would have been more helpful and given a greater hope for her future. Considering the possibility of marriage at the age of fifteen years I can safely multiply the sum ¢360.00 by six years and arrive at the figure of ¢2,160.00 as the profits the deceased could have earned at least for the plaintiff if all went well at the time of marriage when those earnings would be no more.
[p.158] of [1975] 2 GLR 155
However, the risks of the rise and fall in the income and the decline in health at times incline me to scale down the sum of ¢2,160.00 by one-third and leave a balance of ¢1,440.00 which I award as damages for the benefit of the plaintiff as a dependant. For loss of expectation of life I consider as reasonable the sum of ¢200.00 which must be added to the ¢1,440.00 as general damages: see Dolbey v. Godwin [1955] 2 All E.R. 166 at p. 167, C.A. per Lord Goddard C.J.
In the result I give judgment for the plaintiff for the sum of ¢1,640.00 as general damages, ¢30.83 as special damages. Costs of ¢100.00.
DECISION
Judgment for the plaintiff.
S. Y. B.-B.
