HIGH COURT, KUMASI
DATE: 18TH JUNE, 1962
BEFORE: APALOO, J.
CASES REFERRED TO
(1) Mensah v. Amakom Sawmill and Co. [1962] 1 G.L.R. 373
(2) Davies v. Powell Duffryn Associated Collieries Ltd. [1942] A.C.601; [1942] 1 All E.R. 657
NATURE OF PROCEEDINGS
ACTION for damages under the Fatal Accidents Acts.
COUNSEL
A. A. Akainyah for the plaintiff.
S. K. K. Sotomey for the defendant.
JUDGMENT OF APALOO J.
In this action, the plaintiff, as the widow of the late Dr. George Saunders, claims for herself and on behalf of her two children damages under the Fatal Accidents Act, 1846,1(1) as amended by the Law Reform (Civil Wrongs) Act, 1959. 2(2)
The late Dr. Saunders was born in Dublin, Ireland on the 2nd September, 1896. He was a doctor of medicine and came to this country as a government medical officer many years ago. He was at one time
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stationed at Kintampo. While there, he struck some sort of association with the plaintiff whose home is near Kintampo. The plaintiff said the doctor married her according to custom. There is, in my opinion, no reason to disbelieve this. The evidence satisfies me that the plaintiff and the late Dr. Saunders lived and cohabited together in the eyes of the world as man and wife. This union was blessed with two children namely Georgina who is aged 17 and Stephen who is just 14. Sometime in 1953, the late Dr. Saunders must have decided to cement his union with the plaintiff on a more permanent basis. Accordingly, on the 18th March of that year, both the late Dr. Saunders and the plaintiff went through a ceremony of marriage before the Deputy Registrar of Marriages, Kumasi.
That marriage was celebrated under the Marriage Ordinance,3(3) and the plaintiff produced and tendered in evidence a certificate of marriage, exhibit A.
Some years before his death, the late Dr. Saunders retired from government service on pension. The evidence is imprecise when this was. He then built himself some sort of a bungalow at Old Tafo in the suburb of Kumasi and there he lived with the plaintiff and their children. The evidence shows that this was a closely knit and united family. At his residence at Old Tafo, the deceased carried on his calling as a doctor and ran what seems to be a small clinic. He employed a clerk and a nurse.
At sixty-four, the deceased still had some youthful pleasures and appeared to have been enjoying active life. One of such pleasures, I am satisfied, was going to the cinema. His favourite cinema seems to be the Odeon which his son Stephen estimates to be about a mile and a half from their home at Old Tafo. On the 5th November, 1960, the deceased was driving his car, an Opel Record to this cinema.
Almost at the entrance gate of the cinema, his car was in collision with a Vauxhall saloon car owned and driven by the defendant. This took place about 6.45 p.m. His car was very badly damaged and was written off as a total loss. Dr. Saunders himself sustained a dislocation of his left hip.
Unfortunately, complications soon set in. He had bilateral pneumonia. Dr. Rail, the physician specialist who treated him, said he made excellent recovery from this illness, but died suddenly on getting out of bed from an illness he described in technical language as pulmonary embolus.
According to Dr. Rail, this illness was the direct result of the immobilisation of the leg. In other words, Dr. Saunders died as a result of the injuries which he sustained in the accident in which he was involved on the 5th November, 1960.
The plaintiff claims that the accident occurred as a result of the negligent driving of the defendant and that by the death of the deceased she and her children have lost the breadwinner of the family and accordingly claims damages under the Acts to which I have referred. Per contra, the defendant says the accident was caused or contributed to by the deceased himself by his negligence, and on his part, counterclaims against the plaintiff for the cost of repairs to his car.
As far as the actual accident is concerned, each side put into the witness-box two witnesses. For the plaintiff, Stephen, Dr. Saunders’ fourteen-year-old son and his cook’s son Nayorem gave evidence.
The substance of their evidence is that when the deceased’s car reached a spot
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opposite to the entrance of the cinema, he brought his car to a halt. A car then passed by from the opposite direction. The doctor then signalled that he was turning right. Stephen said the deceased then took a look ahead and behind him and commenced to turn right across the road to the cinema. Both said a car, which turned out to be the defendant’s, then came from the direction of Kajetia at great seed and collided with Dr. Saunders’ car. Both cars, as is not disputed, sustained severe damages.
The defendant’s version of the incident was that when he reached Kajetia, the doctor’s vehicle cut sharply across his path. He said he thought the vehicle was passing him straight ahead in the opposite direction. He qualified this slightly by saying he in fact saw the doctor’s trafficator. It showed he would be turning right. This was when he was about thirteen yards away. He said as he had a right of way, he thought the doctor would wait and negotiate the turn after he had passed. but he cut sharply across his path and although he quickly applied his brakes, he was unable to avoid a collision. He put his speed at between 15 — 20 m.p.h. His brother Sulemana substantially corroborated his evidence.
I have seen these four witnesses and have listened to the answers they gave in cross-examination and in addition to the oral testimony. I have weighed the probabilities. One thing seems, to my mind, plain. That is, one of the two cars must have been travelling at great speed. This is proved by the very severe damage which both cars suffered, especially Doctor Saunders’. Mr. Lauber, the chief motor engineer of U.T.C., who has 28 years’ experience to his credit, expressed as his opinion that one of the cars must have been travelling at a speed of between 40 — 50 m.p.h. By process of elimination, I find that it could not be the deceased’s car because he was negotiating a turn. It follows that it must be the defendant’s, which on the undisputed evidence was coming down hill. Accordingly the visible evidence of the damage to the cars and Mr. Lauber’s evidence support the evidence of Stephen and Nayorem that the vehicle that collided with the deceased’s car was in full speed. The defendant said he lived the best part of his life in Suame and admitted that the Kajetia Suame road is an extremely busy one. He also knew that around 6.15 — 6.30 p.m. there are many persons around the precincts of the cinema. He also said he knew that a person travelling from Kajetia to Suame along this road cannot see the entrance of the cinema until he reached the crest of a hill. This is because the hill obstructs distant vision. Indeed he said it is impossible owing to the obstruction created by the hill for a person driving from Suame towards the Odeon cinema to see a car coming from the direction of Kajetia until it reached the crest of the hill by the Shell filling station. The distance between the Shell filling station and the entrance of the Odeon cinema is a matter of a few yards. Sulemana admitted that from the crest of the hill to the entrance of the Odeon cinema is between eight to nine yards.
As the defendant said he knew the geography of the area and was driving at a time when the Odeon cinema might be crowded with cinemagoers, he should have foreseen as a reasonable man that not only motor cars but human beings might be crossing the road at that time to go to the pictures. It seems to me that of all times, this was the time that a person who is driving along that road should exercise great care. Yet with this knowledge, I find that the defendant drove at a speed that was clearly unreasonable and far in excess of the permitted speed limit and collided
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with a motorist who was lawfully turning into the cinema. The defendant said the deceased’s car cut sharply across him and made collision unavoidable. I disbelieve that. I cannot believe that a mature man of 64 would court death in that way. What I find to be true is that the defendant took no thought of other road users and with restricted visibility, drove down hill at such great speed that when he suddenly came upon the deceased, he found it impossible to stop and avoid a collision. That, in my opinion, is negligent driving. It is nothing short of it.
I am satisfied that the deceased sustained injuries from this accident from which he eventually died. I find it proved that the plaintiff who is his widow and her children were wholly dependent on the deceased and that by his death they have lost their right of support. In my judgment, the defendant is liable to the plaintiff under the Fatal Accident Act, 1846, as amended by the Law Reform (Civil Wrongs) Act, 1959.
In the case of Mensah v. Amakom Saw Mill & Co.,4(4) involving a claim under the Fatal Accidents Act, I expressed the view that I was not aware of any local case in which the Supreme Court laid down any principles on which the assessment of damages such as the one claimed in the instant case could be determined. I therefore adopted and applied the guidance given this matter by the famous judgment of Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd.5(5) where his Lordship said: “There is no question here of what may be called sentimental damage, bereavement or pain and suffering. It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be-turned into a lump sum by taking a certain number of years’ purchase. That sum, however, has to be taxed down by having regard to the uncertainties, for instance, that the widow might have again married and thus ceased to be a dependant, and other like matters of speculation and doubt.”
I propose to rely on this case, as I did in the case which I have cited, for guidance in determining the damages to which the plaintiff is entitled in this action. As I said, the deceased ran a clinic at his residence at Old Tafo. From this the plaintiff said the doctor made an income of £G200 per month during the lean season, and £G300 per month during the cocoa season. The plaintiff also produced to me the deceased’s statements of income and expenditure for income tax purposes. I reckon from these that the deceased was making fairly regularly something to the tune of £G2,500 per annum from his profession as a doctor. He was in receipt of pension in the sum of £G890 per annum. He was accordingly in the firm income bracket of £G3,000 to £G3,500 per annum.
The plaintiff said the doctor gave her £G100 per month for running the house. From this, she keeps for herself £G25 as a sort of pin money. The rest was spent on food and wages of domestic staff. The plaintiff did not say what sort of staff she had, but I assume they had a steward in
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addition to the cook who was Nayorem’s father. I reckon that the wages of the domestic staff should be about £G15. That leaves £G60 for food. This was a family of four and each person spent approximately £G15 on food. This means that the deceased contributed £G45 per month for the upkeep of the plaintiff and her two children. This works out at £G540 per annum. The evidence is that the deceased gave both Georgina and Stephen £G5 each per month as pocket money and they were entitled to please themselves with this sum. This works out at £G120 per annum. Accordingly, the annual sum which Dr. Saunders spent on his family breaks down as follows: £G300 pin money for the plaintiff; £G540 for food; and £G120 pocket money for the children. These aggregate £G960 per annum. The deceased was also spending on the education of Georgina and Stephen a sum of money which I find impossible to determine on the evidence. In his lifetime,’ Stephen was in the Wesley Practice School and Georgina was at Yaa Asantewa Secondary School. I accept the plaintiff’s evidence that it was the deceased’s wish that both should train to work in the hospital. I think it very likely that the deceased had wish to train both children to be doctors to follow after him. He said they would train in his home in Ireland and return to work here in Ghana. Georgina is now studying in Wales, while Stephen is attending a secondary school at Sunyani. Accuracy is not possible in these matters but in my opinion, had he lived, the deceased would have been spending no less than £G400 per annum on the education of these two children to whom he is said to be much devoted. I will add this sum to the sum of £G960 for the purpose of ascertaining the datum figure. This comes to a grant total of £G1,360.
According to Lord Wright, this sum has to be turned into a lump sum by taking a number of years’ purchase. In non-technical language, it means that the datum or basic figure must be multiplied by the number of years that this contribution could reasonably have continued. The plaintiff said the deceased was normally in good health. He must have been to carry on his profession and enjoy pictures. Dr. Rail described him as “a big bulky man with no obvious sign of ill-health”. I think in all probability, Dr. Saunders would have lived for at least a period of ten years had he not met this accident. But the real question is what expectation of working life did he have? His natural life is not necessarily synonymous with his working life. He may have retired from work possibly on grounds of senility before his death. But it seems to me extremely likely that Dr. Saunders would have died in harness. But I ought not to overlook the fact that he was in origin Irish and although he lived here for many years and appeared to have been completely acclamatised, there is the probability that he may not feel able to continue work after attaining seventy years. In all the circumstances of this case, I will take 6 years’ purchase for the purpose of ascertaining the lump sum. That comes up to £G8,160.
Lord Wright thinks that this sum must be taxed down by the unforeseeable exigencies of life including perhaps, a possible remarriage of a widow. Dr. Awuku Asabre estimates the plaintiff’s age as 54 and said she is now a worried person broken down in health and has since developed hypertension. It seems rather unlikely that she has any more chances in the matrimonial market. She told me that she has no wish to re-marry, and I think she was in earnest. She is herself illiterate and unless it is a windfall, it is rather improbable that she can get anyone in Dr. Saunders’ position. Other matters of speculation and doubt about which account
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ought to be taken are the probabilities that Dr. Saunders may in any event have died from natural causes or may have taken ill and been incapacitated thereby from earning income. This is not exhaustive and indeed a lot of other things may be imagined. Taking into consideration all these, I think the aggregate sum should be taxed down by the sum of £G2,160, leaving a round sum of £G6,000. In so far as it is possible to reduce into cash the loss that the plaintiff and her children sustained as a result of the death of Dr. Saunders, I make it £G6,000. That in my judgment, is the sum to which the plaintiff is entitled for loss of dependence.
Mr. Sotomey for the defendant raised as a preliminary point that this action was irregularly brought and that it could only be brought by the executor within six months and not the beneficiaries. He based his contention on the ground that “month” in the Fatal Accidents Act means calendar month and that for the purpose of computing a month, no account should be taken, so I understand him, of a fraction of month. I overruled this objection on the 5th June last, and indicated that I would give my reasons later. In my opinion, month merely means calendar month of 30 days. I find no warrant for the absolutely novel interpretation which counsel sought to put on it.
In view of what I have said, I give judgment for the plaintiff against the defendant for the sum of £G6,000 with costs. The counterclaim is devoid of merit and is dismissed. I assess counsel’s costs at 120 guineas and other costs at 30 guineas. Inclusive costs 150 guineas.
DECISION
Judgment for the plaintiff.
