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GHANA BAR REPORT 1993 -94 VOL 2

Bunzu and another v  Abbeyman Family Stool

COURT OF APPEAL

ESSIEM, ADJABENG, LUTTERODT JJA

24 JUNE 1993

 plaintiff had been challenged. Only the last two grounds were touched upon before us in this application by the applicants’ counsel.

Counsel for the respondent submitted that since the applicants failed to show that the trial judge had exercised his discretion wrongly, we should not countenance this application. Counsel relied on Ballmoos v Mensah [1984-86] 1 GLR 724. Counsel went on to argue that since the applicants are total strangers and have no interest in the land the subject-matter of the action, they would not suffer any injury or hardship if the order of the court below is executed, especially as should the defendants succeed in their contention that they had not been appointed as caretakers by the plaintiff stool, they would be adequately compensated.

It seems to me that in order not to prejudice a fair hearing of not only the substantive action in the High Court (where the issues to be tried have not even been set down) but also the interlocutory appeal pending before this court on which this application is based, this application must be handled with care. See Mensah v Ghana Football Association  [1989-90] 1 GLR 1, SC.

Order 50 rule 7 of the High Court (Civil Procedure) Rules 1954 (LN 140A) gives a very wide discretion to the trial court to grant:

“…an injunction or appoint a receiver by an interlocutory order in all cases in which it appears to the Court to be just or convenient so to do.”

The trial judge in this case exercised his discretion based on the facts disclosed in the pleadings and the affidavits filed, in favour of the plaintiff. Whether he did exercise this discretion wrongly has not been canvassed in this application, and is yet to be established on the appeal pending. This is one of the grounds of appeal filed as has been mentioned earlier.

It seems to me that in a situation like this, and having regard to the facts of this case, it would be wrong for this court at this stage to do anything that may even remotely be interpreted as an interference with the exercise by the trial court of its discretion in the matter even before the appeal comes on for hearing. This is especially so when the court's exercise of its discretion has not been impugned in this application.

I think therefore that the best thing to do in the circumstances is to refuse the application.

LUTTERODT JA. I also agree.

Application refused.

S Kwami Tetteh, Legal Practitioner.

Damages - Quantum - Fatal accidents - Loss of dependency – Award to compensate for pecuniary loss to dependants, not as solatium.

Damages – Assessment – Appeals from – Appellate court entitled to substitute its award where basis of award not specified.

The plaintiffs, parents of a 13-year old pupil of a Middle School, Form 2, instituted an action for damages for the negligence of the defendants resulting in the death of the pupil in a motor accident. The 1st defendant was the owner and driver of the vehicle insured at the time by the 2nd defendant. It was found as a fact that the deceased was a brilliant pupil with a bright future. The trial judge gave judgment for the plaintiffs and awarded them a global sum of ¢600,000. The plaintiffs appealed against the award on the grounds that the award was woefully inadequate.

Held: (1) The award of damages was at the discretion of the trial judge. Once the basis of the award had been shown, unless the basis is wrong, an appellate court would have no justification for interfering with the award. In the instant case even though the learned trial judge made certain findings upon which he made his award, it was not clear how he arrived at the bulk figure. Even though he did not accept wholly the claim for funeral expenses, he did not specify how much he accepted. Besides he did not accept wholly the extent of services rendered by the deceased to his parents and grandmother but also omitted to quantify how much each dependant had lost, for which he made the global award. In the circumstances the appellate court would substitute its award.

(2) It had long been settled that damages were not awarded as a solatium for the bereaved but as compensation for the pecuniary loss suffered by the dependants of the deceased. If no pecuniary loss was proved, the defendant was entitled to succeed.

(3) It was not necessary that pecuniary advantage should actually have been derived from the deceased before his death. Damages were to be calculated with reference to a reasonable expectation of pecuniary benefit. Blake v Midland Rly (1852) 18 QB 93, Mallett v McMonagle [1969] 2 WLR 767 HL, Barnett v Cohen [1921] 2 KB 461, Taff Vale Rly Co v Jenkins [1913] AC 1 cited.

Cases referred to:

Barnet v Cohen [1921] 2 KB 461, 90 LJKB 1307, [1921] All ER Rep 528, 125 LT 733, 37 TLR 629, 19 LGR 623, 13 Digest (Repl) 173.

Blake v Midland Rly (1852) 18 Q B 93, 21 LJQB 233, 18 LTOS 330, 16 Jur 562, 17 Digest (Reissue) 216.

Mallett v McMonagle [1969] 2 WLR 767, [1970] AC 166, [1969] 2 All ER 178, 113 Sol Jo 207, [1969] 1 Lloyd’s Rep 127, [1969] NI at 105, HL.

Taff Vale Rly Co v Jenkins [1913] AC 1, 82 LJKB 49, 107 LT 564, 29 TLR 19, 57 SJ 27.

APPEAL against the award of damages in the High Court.

Cab-Addae for the appellants.

AMPIAH JA. The plaintiffs in this action were the parents of Master Tawiah Anaman who was killed in a motor accident. The plaintiffs, as administrator and administratrix respectively of the estate of the deceased, took action against the defendants for damages for negligence resulting in the death of their son.

The 1st defendant was the owner-driver of vehicle No GN 3588 which was involved in the accident, and which had been insured at the time by the 2nd defendant.

At the end of the trial, the learned trial judge gave judgment for the plaintiffs and awarded them a total of six hundred thousand cedis with costs of sixty thousand cedis against the defendants.

The defendants did not appeal against the judgment. The plaintiffs however have appealed against the judgment on the damages awarded.

Counsel for the plaintiffs contended that “having regard to the overwhelming evidence as to the loss suffered by the appellants, as a result of the death of Master Tawiah Anaman, and the excellent performance of the deceased at school, the damages of ¢600,000 awarded the appellants were woefully inadequate”.

The plaintiffs (hereinafter referred to as ‘the appellants’) did not claim any special damages. They however claimed for (i) loss of service to them and the grandmother, (ii) loss of prospective income and (iii) burial and funeral expenses.

The learned trial judge found that the deceased rendered some services to his parents and also acted as a house help to his aged grandmother. He however did not accept wholly the amount for services rendered; he did not state how much of the services he accepted and how much he would award the parents and the grandmother for the loss of such services. The learned trial judge also accepted that some funeral expenses were incurred but not to the extent claimed.

As stated earlier the damages claimed by the plaintiffs were general although specific amounts were mentioned in both the statement of claim and the evidence, for certain items. The learned trial judge awarded a bulk sum of ¢600,000 as damages. This, appellants regard as woefully inadequate.

The award of damages is at the discretion of the trial judge. Once a basis has been shown as to how the damages have been arrived at, unless the basis is wrong, an appellate court would have no justification for interfering with the award. In the instant case even though the learned trial judge made certain findings upon which he made his award, it is not clear how he arrived at the bulk figure.

Section 16(1) of the Civil Liability Act 1963 (Act 176) provides:

“Where the death of a person is caused by the fault of another such as would have entitled the party injured, but for his death, to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an action for damages for the benefit of the dependants of the deceased.”

Section 18 of the Act provides that:

“The damages under section 16 of the Act shall be -

(a) the total of such amounts (if any) as the court considers proportionate to the loss resulting from the death to each of the dependants, respectively, for whom or on whose behalf the action is brought...”

Sub-section 5 of section 18 of the Act provides further that:

“(5) In addition, damages may be awarded in respect of expenses actually incurred by the deceased before his death and in respect of funeral and other expenses incurred by the dependants or the personal representative by reason of the wrongful act.”

The burial and funeral expenses claimed were ¢30,000. Even though the judge did not accept wholly the amount, he did not say how much of this he accepted. I would award the plaintiffs ¢29,000 for burial and funeral expenses.

The late Tawiah Anaman was a 13-year old Form 2 pupil of the AME Zion Middle School, Aboom, Cape Coast. The evidence shows that he was a brilliant pupil with a bright future. The judge found that he rendered services to his parents and grandmother who were all dependants. The judge did not however accept wholly the extent of the said service; he did not quantify how much each of the dependants had lost by the death of the deceased, though in the end he awarded a lump sum.

It has, however, for long been settled that damages are not awarded as a solatium for the bereaved but as compensation for the pecuniary loss suffered by the dependants of the deceased as a consequence of his death. See Blake v Midland Rly [1852] 18 Q B 93; Mallett v McMonagle [1969] 2 WLR 767, HL. If no pecuniary loss is proved, therefore, the defendant is entitled to succeed - Barnet v Cohen [1921] 2 KB 461; but it is not necessary that pecuniary advantage should actually have been derived from the deceased before his death. Damages are to be calculated in reference to a reasonable expectation of pecuniary benefit. So, in Taff Vale Rly Co v Jenkins [1913)] AC 1 where the deceased was an intelligent girl of 16 who had almost completed her apprenticeship as a dress maker, a jury's verdict in favour of the respondent was sustained notwithstanding that she had not as yet earned anything and had so far conferred upon them no actual pecuniary benefit. Contrast, Barnett v Cohen (supra), where the claim failed because the deceased was just 4 years old.

In the instant case actual pecuniary benefit was proved. Thus, given a life purchase of 12 years and taking an average loss of ¢1,500 a month, I would award the father ¢216,000. Taking an average loss of ¢4,000 a month to the mother, I would award her ¢576,000.

The grandmother died in 1985. The 2nd plaintiff spent on her in lieu of the deceased's services, for only 2 years. I would award the estate ¢9,600.

In conclusion, I would allow the appeal and vary the damages awarded by substituting ¢830,600 total damages.

ADJABENG JA. I agree.

LUTTERODT JA. I also agree.

Appeal allowed.

Justin Amenuvor, Legal practitioner.