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ALIMATU v. BOAMEH AND ANOTHER


  • New
  • 1961-12-22
  • HIGH COURT
  • GLR 798-803
  • Print

OLLENNU, J.


Summary

Fatal accidents?-Whether the Fatal Accident Acts of 1846 and 1864 are Acts of general application, and applicable in Ghana?-Persons entitled to sue under those Acts.Negligence?-Failure to prove driver of vehicle?-Driving vehicle with worn-out tyres.Damages?-Mere speculative possibility of pecuniary benefit not enough to entitle plaintiff to damages. [p.799]

Headnotes

The plaintiff, the mother of Asumanu, deceased, instituted these proceedings under the Fatal Accidents Acts 1846 and 1864 (9 & 10 Vict., c. 93, and 27 & 28 Vict., c. 95) on behalf of herself and the brother and sisters of the said Asumanu. The said Asumanu was alleged to have been killed in an accident which was the result of the negligent driving of the first defendant, the servant of Motor Parts Trading Company, the second defendants herein. The accident it seems was caused by the bursting of a worn-out tyre.

Judgement

ACTION for damages under the Fatal Accidents Acts, 1846 and 1864.

JUDGMENT OF OLLENNU J.

This action was instituted by the plaintiff under the Fatal Accidents Acts of 18461 and 1864,2 and it is for G5,000 damages against the defendants jointly and severally.

Section 1 of the Fatal Accidents Act, 1846, popularly called Lord Campbell's Act, provides that:

?"whensoever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony"

and section 2 provides that?-

?"every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased".

By section 1 of the Fatal Accidents Act, 1864, if the executor or administrator does not bring the action within six months after the death, or if there is no executor or administrator, all or any of the beneficiaries may bring the action for the benefit of the same persons on whose behalf the executor or administrator could have brought it.

In my opinion the Fatal Accidents Acts, 1846 and 1864 are statutes of general application; and being in force in England on the 24th July, 1874, were Acts applicable to Ghana immediately before the commencement of the Courts Act, 19603. Therefore the said Acts continue to apply to Ghana by virtue of section 154 (4) of the Courts Act, 1960.

The plaintiff pleaded and has proved that she is the mother of one Asumanu who was killed in the motor accident which is the cause of the action. I hold that as mother of the deceased, she is entitled to institute the action.

In paragraph 1 of her statement of claim the plaintiff pleaded that the action she brought is for the benefit not only of herself but also of a brother and sisters of the deceased. As pointed out earlier, such an action can be brought only for "the benefit of the wife, husband, parent and child' of deceased person (see section 2 of the 1846 Act) and not for the benefit of any other person.

The class of persons who come within the category of dependants mentioned in the said section 2 of the Act has been defined; for example "parent" includes father, mother, grandfather, grandmother, step-father and step-mother; "child" includes son, daughter, grandson, grand-daughter, step-son, step-daughter, and a child en ventre sa mere: see The George and Richard4 and also Clerk Lindsell on Torts (11th ed.) [p.801] page 97. Brothers and sisters do not come within any of those categories. Therefore, the claim in so far as it is made for the benefit of a brother and some sisters of the deceased Asumanu must fail.

The basis of an action under Fatal Accidents Acts is that if death had not ensued the injury done to the deceased would have given him a good cause of action against the person sued: British Electric Rail Co. v. Gentile.5 In this case it is alleged that Asumanu, the unfortunate man, sustained injuries while travelling on a motor vehicle No. AG. 7619 consequent upon the negligent driving of that vehicle by the driver thereof.

Now the plaintiff pleaded in paragraph 1 of her statement of claim that at the material time the said vehicle was driven by the first defendant, and that the said first defendant was the servant of the second defendant. The defendants denied those important averments of the plaintiff and in paragraph 1, 2 and 4 of their statement of defence the defendants pleaded in reply as follows:

?"1. The defendants will put the plaintiff to strict proof of all the averments contained in paragraph 1 of the statement of claim.

2. Further and in any event, the defendants deny that the first defendant was negligent as alleged in the statement of claim or at all . . .

4. The defendants deny that they are liable to the plaintiff as claimed in the writ of summons.?"

In view of these pleadings, the plaintiff, to succeed on her claim, must tender clear evidence which, upon the balance of probabilities, will show, (1) that the first defendant and no other person was the person driving the vehicle No. AG.7619 on the occasion when the accident occurred, and (2) that the first defendant was a servant of the second defendant, and that in so driving the vehicle, he, the first defendant was acting within the course of his employment. If the plaintiff fails to prove that the first defendant was the driver of the vehicle, her claim must fail against the first defendant. If she proves that the first defendant was the driver but fails to prove that he was a servant of the second defendant-company, her claim against the first defendant may succeed, but it must fail against the second defendant-company. If she proves that some other person not the first defendant drove the vehicle and proves further that that other person drove it in the course of an employment of him the second defendant-company, she may succeed against the second defendant-company, but fail against the first defendant.

Now there is a complete absence of evidence as to the identity of the person who drove the vehicle on the material date. In the whole of her evidence the plaintiff mentioned the name "driver" only twice, the first was in cross-examination when in reply to a suggestion that she went to the police station after the accident she replied: "No, I never went to the police station but the driver did." The court attempted to elicit from her the identity of that driver but all the answer that attempt produced is: "Yes, I said earlier on that I did not go to the police station [p.802] but the driver went; by the driver I meant the driver involved in the accident. I heard it, I did not see him himself; and that was all". P.W.1 and P.W.2 each vaguely mentioned "the driver" but never disclosed his identity.

As regards the second defendant-company the only times they were mentioned were in answers to questions put about them in cross-examination. In this respect counsel for the defence played very badly into the hands of both P.W.1 and P.W. 2, but neither of them would play. And but for the suggestion by defence counsel to P.W.1 that the vehicle involved in the accident was AG.7619, the plaintiff and her witness never mentioned anywhere in their evidence that it was. Defence counsel suggested to P.W. 1 that he the witness was buying the said vehicle from the second defendant-company, and that he had told the police that the vehicle belonged to him jointly with the second defendant-company. To those suggestions P.W.1 made the following answers:

"It is not true that I am buying that lorry from the second defendant-company or from anyone.

?"No, I did not tell the police that the second defendant-company are joint owners of the vehicle with me, I don't know them".

Again defence counsel suggested to P.W.2 that, he, the witness had been coming to Accra with the person who was the driver of the vehicle, to the second defendant-company to pay moneys to the second defendant-company. The witness had earlier said that he did not know who was the owner of the vehicle, he only knew the driver. And to the suggestions he replied: "No, I don't know the second defendant-company. No, I have never come with the driver to Accra to pay moneys to them or to anyone in respect of the lorry."

Thus even if, although the suggestions made by defence counsel and denied by witnesses for the plaintiff could still be regarded as an implied admission by the second defendant-company that they owned or had some interest in the vehicle, there still is no evidence that whoever it was that drove the vehicle on the fateful day was a servant of the second defendant-company.

The plaintiff therefore failed to prove that the first defendant was the person who drove the vehicle on the day in question; she further failed to establish any relationship of master and servant, as known to our law, between the second defendant-company, and the individual who drove the vehicle to cause the accident, and her claim must fail.

But in case I am wrong in these findings, I shall proceed to consider the other aspects of the case; firstly, whether or not the plaintiff has established negligence on the part of the driver who drove the vehicle on the night in question.

It has been established that the accident was caused by the burst of a worn-out front tyre. Although that fact was not pleaded in the particulars of negligence relied upon by the plaintiff, yet I am of the opinion that it is a necessary consequence of all the matters pleaded as constituting negligence. Since there is no evidence to the contrary I am bound to hold [p.903] that the driver of the vehicle was negligent in driving the vehicle with worn-out tyres at a speed of about 60 miles an hour on a rough road and not slowing down when taking a curve.

Finally the question of damages. The principle to be applied in deciding whether or not a plaintiff in an action under the Fatal Accidents Act is entitled to damages is that "it is not sufficient for the plaintiff to prove that he has lost by the death of the deceased a mere speculative possibility of pecuniary benefit; in order to succeed it is necessary for him to show that he has lost a reasonable probability of pecuniary advantage?": see Barnett v. Cohen6 where some of the leading cases on the Act have been discussed.

On the issue of damages it was pleaded on behalf of the plaintiff, paragraph 4 of the statement of claim, that the deceased Asumanu was the sole support of his mother, i.e. the plaintiff, and helped in educating his other brothers. In support of that the plaintiff led evidence that the deceased was the one looking after her, (his mother), his father and all his brothers and sisters, such that whenever he had to be away from home for about a week he left G2 and when he would be away for more than a week he left G3 for their maintenance.

Both the allegation that the deceased was the sole support of his parents and the household is shown upon the whole evidence to be untrue. It appeared that the deceased was not in business on his own, he was working with his father, and that if he did contribute anything at all to the upkeep of the house it could only be for his own benefit and not for the benefit of his mother or father. This is summed up in the following pieces of evidence given by P.W. 1, father of the deceased:

?"Yes, he used to contribute to the upkeep of the house. He used to assist us with money for food for all of us including himself?"

"I know Asumanu used to assist the mother contributing to the upkeep of the house; he is the next man to me in the house so that if I am not there he is the one to look after the house."

I interprete that last piece of evidence to mean, that the witness looked to Asumanu as the possible support for the plaintiff and the family if he the witness should die or in any way become incapacitated, and not that he already was the support of the family. The witness concluded his evidence with the following answer which he gave to the court: "Asumanu and I were doing business together".

The impression which the evidence taken as a whole left with the court is a speculative probability of some pecuniary benefit which might accrue to the plaintiff at some future date; that prospect cannot be the basis for an award of damages under the Act. For that reason also the plaintiff 's claim must be dismissed.

The plaintiff?'s claim is dismissed and judgment entered thereon for the defendants with costs fixed at 25 guineas.

Decision

<P>Action dismissed.</P>

Plaintiff / Appellant

J. C. Armah

Defendant / Respondent

J. Quashie-Idun

Referals

(1)  The George and Richard (1871) L.R. 3 A. &  E. 466; 24 L.T. 717

(2)  British Electric Rail Co. v. Gentile [1914] A.C. 1034, H.L.

(3)  Barnett v. Cohen [1921] 2 K.B. 461

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