HIGH COURT, KUMASI
DATE: 21ST MAY, 1962
BEFORE: APALOO, J.
CASES REFERRED TO
(1) Ogunkoya and Ors. v. Peters (1954) 14 W.A.C.A. 505
(2) Faloye and Ors. v. Olaniyan and Anor. (1954) 14 W.A.C.A. 608
(3) Davies v. Powell Duffryn Associated Collieries Ltd. [1942] 1 All E.R. 657, H.L.
(4) Roughead v. Railway Executive [1949] W.N. 280; 65 T.L.R. 435
(5) Bishop v. Cunard White Star [1950] 2 All E.R. 22
NATURE OF PROCEEDINGS
ACTION by widows on behalf of themselves and the eleven children of the deceased for damages under the Fatal Accidents Act, 1846 (9 & 10 Vict., c. 93), as amended by the Law Reform (Civil Wrongs) Act, 1959 (No. 12 of 1959). The court found for the plaintiffs on the question of liability.
This report is limited only to the assessment of damages and the apportionment of those damages.
COUNSEL
A. A. Akainyah for the plaintiffs.
E. K. Wiredu for the defendants.
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JUDGMENT OF APALOO, J.
[After finding that the accident was caused by the negligent driving of the second defendant in the normal course of his employment and that the first defendants are vicariously liable for the negligence of the second defendant, his lordship continued:] I confess that I have not found the assessment of damages anything but difficult. My own researches did not reveal any case in which the Supreme Court gave any guidance on what principle the quantum is to be determined. In the case of Ogunkoya and Ors. v. Peters1(1) the West African Court of Appeal held that the plaintiff must furnish evidence to warrant the award of damages and facts for a basis of assessment. But it did not decide on what principle the assessment was to be based. In the case of Faloye and Ors. v. Olaniyan and Anor.,2(2)
the only other reported case in which the Court of Appeal considered the Fatal Accidents Act, it similarly gave no guidance. I accordingly fell for guidance upon English decisions. The judgment of Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd.3(3) is regarded as the pointer to the practical way in which the assessment of damages should be ascertained. Lord Wright 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 due regard to the uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt.”4(4)
In this case, the deceased was self-employed and his annual income is said to be £G800 but both plaintiffs are unable to say how much the deceased spent out of this on himself. They however gave evidence of the contribution that the deceased made for the support of themselves and their children.
That ought to be the datum figure for this case. This must be multiplied by the number of years this contribution would have continued, technically referred to by Lord Wright as the “number of years’ purchase”, taking into account the risks of a rise or fall in this contribution. In determining the number of years’ purchase, the most important question is how long would the deceased have continued to live if he had not met this particular accident and how much working life did he have? This at once brings into question the deceased’s state of health and age. In the case of Roughead v. Railway Executive5(5) Humphreys, J. said that ten years’ purchase was a figure often taken by judges but he himself took fifteen. The same figure was taken in Bishop v. Cunard White Star Co. Ltd.6(6) It is said that twelve to fifteen is quite a common multiplier in the case of a healthy man.
As to the financial contribution to the plaintiffs, the first plaintiff said the deceased gave her every day the sum of fifteen shillings for the living expenses of herself and the children. She has seven children.
The second plaintiff said she received ten shillings per day for herself and her
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four children. Accordingly, the deceased made a contribution of £Gl5s. per day for the support of himself, his two wives and eleven children. In present day economies, this sum seems to me reasonable. As the deceased himself found his meals from this sum, I shall deduct from it five shillings per diem. That represents the net contribution that the deceased made per day for food for his two wives and eleven children. Accordingly, in a month of 30 days, the deceased contributed a net sum of £G30 for the support of his family. This totals £G360 per year. In addition to this the first plaintiff said the deceased gave her £G100 per annum to buy the personal effects of herself and her
children. The second plaintiff said she received £G50 at Christmas for similar purpose. The deceased seemed to have been a devoted husband and considered the claims of his family the first charge on his generosity. There is, in my opinion, no reason to disbelieve this evidence. Accordingly, the deceased provided another £G150 to his family in addition to the usual sum of £G360 which he made available for their food. Accordingly the aggregate sum which the deceased contributed to the support of his family is £G510. The plaintiffs said the deceased also gave them small pecuniary presents at irregular intervals. I propose to ignore this for the purpose of ascertaining the datum figure.
As I have said, for the purpose of ascertaining the number of years’ purchase, it is necessary to determine the probable length of time the deceased would have lived and the expectation of his working life. The deceased was a timber contractor. In addition, he combined palmwine tapping with cocoa farming. These activities call for good health and it is reasonable to deduce that the deceased must have been in sound physical health. Although there is no evidence as to his exact age Kwaku Akyeampong (D.W.2) gave evidence from which I feel entitled to arrive at some approximation of the deceased’s age. Akyeampong gave his own age as 34, and said he was of the same age as Appau who was the deceased’s younger brother. Appau was said to have been born immediately after the deceased. Assuming Appau and the deceased were normally spaced in birth, Appau should be two years younger than the deceased. That would put the deceased’s age at 36 if he were alive today.
Accordingly, in 1959 he must have been 33. This is no more than a very general approximation.
Assuming that the deceased was even about six years older than Appau, he would not have been more than thirty-eight in the year of his death. Accordingly, the deceased was killed in the prime of his life.
Had he lived, his future performance could be judged from his past and it is reasonable to assume that he would have provided for his family in the future as he did in the past. There is no reason to think otherwise. I think had the deceased lived, he would have continued to work for at least a period of ten years. Accordingly, I propose to take ten years’ purchase. On that basis, the deceased would have contributed to the support of his family in the aggregate sum of £G5,100.
In the Davies’ judgment to which I have referred, Lord Wright said the sum has to be taxed down by uncertainties for instance the re-marriage of a widow and like matters of speculation and doubt.
Among those matters ought to be included the fact that the deceased may not have been as successful in his business in the future as he had been in the past; he might have taken ill and become bedridden and thus incapable of earning income; he may have contracted more customary marriages and with the resultant increase of responsibility he may have felt constrained
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to reduce pro rata his contribution to the plaintiffs. He may have died from natural causes and lastly, the plaintiffs themselves are reasonably young widows and may soon find male partners who might provide for them as well as the deceased did or may be better. I do not at all find it easy to put a pecuniary value on those matters. They are said to be entirely matters of impression and common sense. Doing the best I can, and taking into consideration all the matters of “doubt and speculation” I have mentioned, I think the aggregate net contribution should be taxed down by the sum of £G2,000.
That leaves the sum of £G3,100. In my judgment, that represents as best as I can estimate it, the loss that the plaintiffs and their children sustained, to use the words of Lord Wright “in the hard matter of pounds, shillings and pence” by the death of the deceased. I should have felt prepared to enter judgment in their favour for that sum. The plaintiffs, however, claim £G3,000 that is £G100 less.
They ought to have that sum by way of damages for loss of dependence.
Mr. Akainyah has asked me in the event of the plaintiffs succeeding in this action, to apportion the damages among the various dependents of the deceased. I propose to accede to this request. I think I am in fact obliged to do so by section 2 of the Fatal Accidents Act itself.
The deceased is survived by six boys and five girls and their ages vary from three to fourteen years. I do not propose to take age as a criterion for making an award, but it seems to me that the needs of girls are perhaps a little less than boys. It may well be that while these boys are still struggling to get a footing in life the girls are all comfortably married. But the difference ought not to be much. Not all girls are fortunate to get husbands or good ones. I consider that the boys should each have £G30 more than the girls.
I think that the plaintiffs should also have a little less than their children as it seems to me that financially, the children lost more by the death of their father than the plaintiffs by the death of their husband. As to whether both plaintiffs should have an equal sum, I have had some difficulty. The first plaintiff looks a trifle older than the second plaintiff who is the more attractive of the two. Although the first plaintiff is not herself unattractive, she says she has a bad foot and I observe she walks with a slight limp. She is weighed down by seven children. The second plaintiff on the other hand, looks a little sophisticated, at least by village standards. When she gave evidence before me on the 10th May, last, she was in a gay cloth and her face was all made up with modern cosmetics with a dash of lipstick. Of the two, she is probably going to be the first to remarry. But in the matrimonial market they will both gamble together.
I do not know of any principle of customary law which provides a basis for distribution of benefits among widows. I can get no guidance from any decided case that I have come across nor any assistance from Sarbah’s Fanti Customary Laws. No help can be had from any resort to common law rules for the very good reason that the common law does not recognise polygamy. Plato said equality was a sort of justice, and where there is no other basis in my opinion, equality ought to be the proper basis. Accordingly, notwithstanding the difficulty I feel, both
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plaintiffs should share equally. The apportionment I make, is that each of the six boys will have £G250, each of the five girls £G220 and each of the widows £G200. The first plaintiff will accordingly have for herself and her seven children (three boys and four girls) £G1,830, and the second plaintiff will have for herself and her four children (three boys and one girl) £G1,170. The apportionment has nothing to do with the defendants and as against them jointly and severally, I give judgment for the plaintiffs for the sum of £G3,000 with costs. I assess counsels’ costs at 100 guineas and other costs at 30 guineas, a total of 130 guineas.
DECISION
Judgment for the plaintiffs.
