Division: IN THE SUPREME COURT
Date: 22 JUNE 1964
Before: MILLS-ODOI, OLLENNU AND ACOLATSE JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the judgment of the court. The appellant, hereinafter called the plaintiff, father of one Herman Wilhelm Hesse, Jnr., deceased, sued on behalf of himself and other dependants of his said deceased son; he claimed £G7,000 damages against the respondents, hereinafter called the defendants, for negligence of the second defendant a servant of the first defendant council, which he alleged, caused the death of his said son. The action was brought under the Fatal Accidents Act, 1846,1 section 1 of which enables a dependant to sue for the benefit of himself and of all dependants of the deceased. Under section 5 of the Act a parent comes within the class of dependants; but it is a question of fact in each case whether he really was dependent upon his child at the time of his death.
The material averments of the plaintiff are contained in paragraph (3) (a) of his statement of claim, and are as follows:
“(3) (a) On the 15th day of May,1957, at about 6.30 p.m. the said Herman Wilhelm Hesse, deceased, was lawfully riding his motor scooter along Christiansborg Road from Accra to Christiansborg when the second defendant the said Joseph Quaye, while driving the first defendant Bus No.AD 2116 in the course of his employment, drove the said Bus No. AD 2116 so negligently that it knocked violently the deceased off his scooter at the Christiansborg Cross Roads whereby the said deceased died as a result of the said incident.”
Full particulars of the negligence alleged in the said paragraph 3 (a) of the statement of claim were given in paragraph 4 (b) of the statement of claim.
In reply to the said averments of the plaintiff, the defendants pleaded in paragraphs (3), (4) and (5) of their statement of defence as follows:
“(3) the particulars of negligence are denied as though each were set out herein and specifically traversed.
(4) the defendants while admitting paragraph (3) (a) only as to the date and time, emphatically deny the allegation of absolute negligence therein contained.
(5) further to paragraph (4) supra, the defendants say that if, which is not admitted, the plaintiff herein has suffered any damage at all, the said damage was caused or alternatively contributed to by negligence on the part of the deceased,”
and set out particulars of the contributory negligence they relied upon. Upon the pleadings the following issues were agreed upon for trial:
“(a) whether or not the second defendant as servant of the first defendant was negligent,
(b) whether or not such negligence was the sole cause of the accident resulting in the death of the deceased,
(c) whether or not the plaintiff for and on behalf of the said dependants is entitled to the amount claimed as damages, and
(d) whether the deceased was negligent.”
In his judgment, Charles J., the trial judge made the following findings of facts: (1) that the accident was caused by the negligence of the second defendant, a servant of the first defendant council, (2) that the deceased was not guilty of contributory negligence, (3) that the wife and two twin children of the deceased each aged four years, are dependants of the deceased, (4) that the damage suffered by each of the children of the deceased is £G800, and that suffered by his widow is £G400, (5) that the plaintiff in his individual capacity had suffered no damage, and (6) that it had not been proved that the death of the plaintiff’s said son was caused by the accident, and therefore the defendants are not liable to pay the dependants the damage they are proved to have suffered in consequence of the death of the deceased.
From that decision the plaintiff appealed on two grounds:
“(1) The judgment is against the weight of evidence.
(2) The learned judge erred in finding that there was no evidence to show that the deceased died as a result of the second defendant’s negligence having regard to exhibit A and the admission of the defendants on their pleadings.”
The only issue in this appeal is whether the learned trial judge was right in holding that the death of the deceased has not been shown to have resulted from the accident caused by the negligence of the second defendant. The ground upon which the learned judge held that the death has not been proved to have been caused by the accident is that no medical evidence was adduced by the plaintiff to prove that the serious injuries suffered by the deceased from the accident was the immediate cause of death, and that it cannot be inferred from the facts proved that it was the accident which caused the death. It was submitted on behalf of the plaintiff, that upon proper interpretation of the rules of pleadings, and consideration of the pleadings in this case, the defendants must be deemed by their statement of defence to have admitted that it was the accident which caused the death, and that they are therefore estopped from denying that fact.
Counsel referred to Order 19, rr. 14, 18 and 20 of the Supreme [High] Court (Civil Procedure) Rules, 1954.2 Counsel for the defendants submitted contra, that by implication the statement of defence amounted to denial that the accident was the cause of death, and therefore the plaintiff was put to strict proof of that fact. Now paragraph (3) (a) of the plaintiff’s statement of claim on the face of it contained three distinct averments, namely, (i) that the second defendant drove the first defendant council’s bus negligently, (ii) that the said negligence of the second defendant caused the accident, and (iii) that the accident so caused, also caused, or resulted in the death of the deceased.
Order 19, r. 14 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (supra) lays down that: “Every allegation of fact in any pleading, . . . if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted . . .” Therefore, any one of the three averments of the plaintiff, set out above which is not denied specifically or by necessary implication, or which is not stated to be not admitted, must be taken to be admitted.
Again, Order 19, r. 18 also provides that:
“It shall not be sufficient for a defendant in his defence to deny generally the grounds alleged by the statement of claim, or for a plaintiff in his reply to deny generally the grounds alleged in a defence by way of counterclaim but each party must deal specifically with each allegation of fact of which he does not admit the truth, except damages,”
meaning that a general denial of grounds alleged, is not denial of the specific averments as required by rule 14. This important rule is further strengthened by the provisions in rule 20 of the said Order 19 which says:
“When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received; and if an allegation is made with divers circumstances, it shall not be sufficient to deny it along with those circumstances.”
Applying these tests to paragraphs (3) and (4) of the defendants’ statement of defence we find that of the three specific averments made by the plaintiff in paragraphs (3) (a) and (4) of his statement of claim, only two are specifically denied by the defendants, namely: (1) the averment of absolute negligence of the second defendant, and (2) the particulars of negligence as given by the plaintiff.
Definitely the specific averment by the plaintiff that it was the accident which caused the death was not denied specifically or by necessary implication, and not stated to be not admitted. Therefore by virtue of rules 14, 18 and 20 of Order 19 referred to above, the defendants must be deemed to have admitted that it was the accident which caused the death. This is further supported by the fact that the only issue which the defendants caused to be added to those set out by the plaintiff in his summons for directions is “whether the deceased was negligent.”
Again, there is clear evidence led on behalf of the plaintiff which was not even cross-examined upon that on the fateful day, 15 May 1957, the deceased was quite healthy, full of life riding his motor scooter when he was knocked down by the defendants’ bus; that in consequence of the accident he became unconscious and was breathing only slightly; he was then put in a taxi and taken to the hospital; that police came to the scene immediately, took the second defendant and the bus conductor, the fourth witness for the plaintiff, to the police station, and thence to the hospital; and that when they arrived at the hospital they saw the deceased who was then already dead. In those circumstances what else could have caused the death but the accident?
So that quite apart from the law that by the nature of the pleadings, the defendants admitted that the death was caused by the accident, there is the irresistible inference from the facts proved that it was the accident that caused the death. The learned judge misdirected himself on the law on the point; he also misdirected himself by failing to direct himself on the evidence as to the death and of the circumstances immediately leading to it. And that disposes of the only issue in the appeal.
The plaintiff has not appealed against the decision of the High Court that he is not entitled to any damages in his individual capacity. We feel, however, that it is necessary to make a few observations on the ratio decidendi in the said decision. The learned judge as it appears came to his said decision partly on the ground that it was not proved that the plaintiff was deriving any pecuniary benefit from the deceased at the time of his death, but was rather solely responsible for the provision of sustenance for the household including the deceased, in effect therefore that the plaintiff was subsidising the deceased.
It is correct that the basis of an action under the Fatal Accidents Act is pecuniary loss suffered by the dependants in consequence of the death. The pecuniary loss includes a probable prospective loss. The principle is stated in Clerk & Lindsell on Torts (12th ed.), para. 397 as follows:
“The basis of the action is the pecuniary loss suffered by the dependants in consequence of the deceased’s death. Nothing may be given by way of solatium. If no pecuniary loss is proved the defendant is entitled to succeed. But it is not essential that there should be distinct evidence of pecuniary advantage actually derived from the deceased prior to his death. Prospective loss may be taken into account, but it must be the loss of a ‘reasonable expectation of pecuniary advantage,’ not a ‘mere speculative possibility’.”
Thus in Taff Vale Railway Co. v. Jenkins,3 a father, Jenkins, brought an action against the Railway Company under the Act, for damages for loss of a daughter, aged sixteen, who was killed by the negligence of the defendants; it was proved that at the date of her death the deceased, who lived with her parents, was nearing the completion of her apprenticeship as a dress-maker, and was likely in the near future to earn a remuneration which might then assist her parents who were declining in age. It was held that that was evidence of damage upon which the jury could reasonably act. In the course of his judgment in the case Viscount Haldane L.C. said4:
“The action is brought under Lord Campbell’s Act by the father on behalf of himself and the mother for damages for the loss of the daughter. Now we have heard a good deal of authority cited as to what the foundation of such an action is, but I do not think there is much difficulty in coming to a conclusion as to the principle which underlies those authorities. The basis is not what has been called solatium, that is to say, damages given for injured feelings or on the ground of sentiment, but damages based on compensation for a pecuniary loss. But then loss may be prospective, and it is quite clear that prospective loss may be taken into account. It has been said that this is qualified by the proposition that the child must be shewn to have been
earning something before any damages can be assessed. I know of no foundation in principle for that proposition either in the statute or in any doctrine of law which is applicable; nor do I think it is really established by the authorities when you examine them.”
And that is the principle which the learned judge should have applied. Although he properly directed himself that pecuniary loss is the basis of such a claim, he failed to direct his attention to prospective loss. However, that issue has not been raised in this appeal, and we would therefore say no more about it. It is enough here to restate the principle of law applicable to such cases.
But as earlier observed the only issue raised on this appeal is whether the High Court was right in its decision that the death of the deceased had not been proved to have been caused by the accident negligently caused by that defendant; that matter we have fully disposed of.
For the reasons stated above, the appeal is allowed, the decision of the High Court that the accident is not proved to have caused the death is set aside including the order as to costs, any costs paid to be refunded. For the final decision of the High Court is substituted the following: there will be judgment for the plaintiff for £G2,000 damages against the defendants jointly and severally made up as follows: £G800 for each of the two children of the deceased, and £G400 in respect of Agnes Bannerman, the widow of the deceased. The appellant will have his costs in the court below assessed at £G46 11s. 0d. and his costs in this court fixed at £G51 18s. 0d.
Court below to carry out.
DECISION
Order accordingly.
N.A.Y.
