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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. |
