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22ND APRIL, 1960.
BEFORE THEIR LORDSHIPS
J.A. Cole, for the Appellant.
G.M. Boyo, for the Respondent.
TORT: Fatal Accidents – whether means of deceased should be taken into account – position of widow of deceased – competence of suit by dependants without proving non-existence of personal representatives – Burden of proof to show there are no personal representatives – Fatal Accidents – Acts, 18461900, Act of 1864, s.1.
CHILDREN AND WOMEN’S LAW: relevant principles for computing damages for surviving widows and children of a deceased victim of fatal accidents
ADEMOLA, C.J.F.: (Delivering the Judgment of the Court):
This is an appeal from a judgment allowing the sum of £2,520:0s:0d as damages under the Fatal Accidents Acts, 1846 1900. The Plaintiff/Respondent is the mother of the deceased Samuel Akpoto who, who died from injuries received while a passenger in the Appellant’s car by the negligence of the Appellant. The Plaintiff brought the action on behalf of herself as dependant of the deceased and on behalf of seven other dependants.
It was conceded by the Appellant that the finding of negligence by the learned trial Judge is not the subject matter of this appeal.
Six grounds of appeal were argued. Mr. J.A. Cole, Counsel for the Appellant, arguing the first and second grounds (additional grounds) together, submitted that that the Plaintiff/Respondent, having brought the action as a dependant of the deceased, appeared to have brought the action under section 1 of the Act of 1864 which allows dependants to bring action if there are no personal representatives. He argued that if the facts were as such, it was essential for the Plaintiff to establish by evidence that there are no personal representatives who could sue and it therefore devolved upon her to bring the action as a dependant.
Although this point was not taken in the Court below, it was referred to in Counsel’s address in that Court. We however allowed argument on the point.
In the statement of claim filed by the Plaintiff h was made clear that the action was brought by the Plaintiff as dependant of the deceased. In my view the necessary implication was that there were no personal representatives who could sue. It was therefore open to the Defendant/Appellant, if he challenged the right of the Plaintiff to sue as a dependant of the deceased, to have so stated in his defence, for the reason, if it were true, that there were personal representatives who could have sued. The Plaintiff/Respondent, in my view, need not prove that there are no personal representatives: if it is within the knowledge of the Defendant that there were, it was his duty to have pleaded it in his defence. I see no substance in these two grounds, which must fail.
The question of identity of the dependants was argued under grounds 3 and 4 (additional), which were argued together. Counsel withdrew his objection against the identity of the child Chukuemeka referred to under ground 3 (b), it having been pointed out to him that the wife of the deceased (3rd Plaintiff’s witness) identified her and stated that the child was away at Port Harcourt with her mother. With regard to the child Baby Akpio who is mentioned in ground 3(a), it appears the child is unknown to 3rd Plaintiff’s witness and it does not appear from the Record of Appeal that the Plaintiff/Respondent herself identified the child although his name appeared In the statement of claim as a dependent of the deceased. I am in full agreement with Counsel for the Appellant that the learned Judge erred in this respect in awarding compensation to Baby Akpoto.
On ground 6 (additional grounds) Counsel argued that the learned Judge in awarding compensation ought to have taken into consideration the assets of the deceased. For this proposition of Law Counsel relies on the case Lory v. Great Western Railway Corporation (1942), 1 All E.R. 230. It was submitted by Counsel that evidence in the Court below disclosed that the deceased was a rich man and that it was the duty of the learned Judge to have taken into consideration the assets of the deceased in assessing compensation.
It is true that the deceased’s uncle, Daniel Ijirigho (3rd Plaintiff’s Witness), in his evidence disclosed that the deceased was a man of affluence who led a full life and had many sidelines in his business concerns, but it was not disclosed throughout the proceedings how rich he was. There was no evidence that the various businesses in which he was interested brought him enormous profit or any profit at all. It was difficult, if not impossible, to estimate his wealth, if any, from this evidence.
I have considered Lory’s case (supra) to which Counsel referred. I do not think it is of any help to the Appellant’s case. What the case decided was that pensions received from two different funds by the widow of a deceased policeman claiming damages under the Fatal Accidents Act 1864 and under the Law Reform (Miscellaneous Provisions) Act 1934 were not in the nature of insurance moneys and had to be taken into account in the assessment of damages.
The question of compensation in a case of negligence which resulted in an injury to a man with high secured income was fully discussed in the case of Phillips v. London and South Western Railway (1879) 4 Q.B.D. 406; affirmed (1895) 5 Q.B.D. 78. In that case it was suggested that the fact that the Plaintiff Phillips, a surgeon of middle age, had a secured income of £3,500 per annum was a legitimate consideration upon which the jury might act in reducing damages. Field, J., put the matter to the jury as follows:
“There is another matter which has been discussed a good deal, and it is one of considerable difficulty, viz, how far you are to take into account the plaintiff’s position. In the case of a poor man, who lost his leg or arm, by which he earned his living you would probably in considering what sum you would give him take into account that he was deprived of the power of earning a livelihood. On the other hand, my Brother Ballantine asks you to take into account that the Plaintiff and his wife are in receipt of an income of something like £3,500 a year, so that he will be above all want, and will be able to live comfortably and with all the responsible enjoyments of life. I must confess for myself I have very great difficulty in seeing how you can say that because a person who is injured is very well off, therefore, the person who injures him is not to pay reasonable or proper compensation. The damages to which a man is entitled are the consequences of a wrongful act by which he suffers. The consequences of the wrongful act here are undoubtedly that Dr. Phillips has been and is prevented from earning such a sum of money as you think he would have been likely to earn if this accident had not happened. That has been taken from him and I am at a loss to see how the fact that he enjoys a considerable income from other sources can alter the amount which you ought to give him.”
This direction to the jury was adopted and approved by the two Courts of Appeal as a fair statement of the law. Applying Phillips’ case to the present appeal, I am of the view that the Judge was right in not taking into consideration the assets of the deceased in assessing compensation, and this ground of appeal fails.
The last ground of appeal argued (ground 7) was that the deceased’s wife was not entitled to any award as she has, since her husband’s death, had a child by another man. There was no evidence led by the Defendant/Appellant in the Court below as to the relative position in life of this man by whom the woman had a child. It has been made clear in a number of decisions that one expectation of pecuniary advantage from the deceased if he were to remain alive; this may be taken into account and damages given in respect of that expectation, if it be disappointed, and the probable pecuniary loss thereby occasioned see Dalton v. South Eastern Railway (1858) 27 L.J.C.P. 227, also Jenkins v. Taff Vale Railway (1912) affirmed (1913) A.C.I. This ground of appeal fails also. In the final analysis therefore the appeal only succeeds in respect of the sum of £350 awarded by the learned trial Judge to the child Baby Akpotowho.
The appeal will therefore be allowed to the extent of this amount of £350 being deducted from the damages of £2,520 awarded by the learned trial Judge.
The question as to whether or not the Fatal Accidents Act applied in the Western Region at the material time was not argued before us and I express no opinion on the point.
Judgment will therefore be varied to the extent of £350 being deducted. Judgment will be entered for the Plaintiff for the sum of £2,170, with reduced costs in the Court below assessed at 95 guineas. Appellant is entitled to 10 guineas costs of this appeal, whilst the Respondent will have 20 guineas costs.
Abbot, F.J.: I concur.
Hubbard, Ag. F.J.: I concur
Appeal allowed in part: damages reduced.