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SOLOMON v. KUMASSAH AND ANOTHER


  • New
  • 1961-11-20
  • HIGH COURT
  • GLR 687-691
  • Print

PREMPEH, J.


Summary

Fatal accidents?-Claim by sister-administratrix for self and other dependants?-Whether sister entitled to damages?-Law Reform (Civil Wrongs) Act 1959 (No. 12/1959) s. 3.Fatal accidents?-Damages?-Apportionment among dependant-children.

Headnotes

The plaintiff, a sister and successor to Kudzovi Klugah deceased, and the administratrix of his estate instituted this action under the Fatal Accidents Act, 1846 (8 & 9 Vict. c.93) as amended by the Law Reform (Civil Wrongs) Act, 1959 (No. 12 of 1959) for G6,080 damages alleged to be suffered by the dependants of the said Klugah, who died at the age of 43, from injuries received in a motor accident caused by the negligence of the second defendant, the driver and servant of the first defendant. The persons on whose behalf the action was brought are the plaintiff herself; three children of the deceased, Moses, Charles and Adjovi, aged thirteen, eleven and eight years respectively; and Madam Klugah, widow of the deceased. The defendants did not contest liability; they contested the quantum of damages only. The evidence disclosed that shortly before Mr. Klugah died, Madam Klugah had committed adultery, had become pregnant with a baby and was living apart from the husband. There had not been a formal divorce, but Mr. Klugah was not maintaining her. The sister, plaintiff herein, benefited from an allowance of G10 to G15 which Mr. Klugah made to her monthly. There was no dispute that he maintained his children, all of whom were at school. Mr. Klugah was a fisherman, a farmer and a cloth weaver, and earned in all about G55 per month.

Judgement

ACTION for damages under the Fatal Accidents Act, 1846, as amended by the Law Reform (Civil Wrongs) Act, 1959 (No. 12 of 1959).

The plaintiff as the administratrix and customary successor of the late Kodzovi Klugah, deceased claimed for the benefit of the dependants of the said late Kodzovi Klugah against the defendants jointly and severally the sum of G6,080 by way of damages being as to G80 special damage, and G6,000 general damages, for damage and injury and loss suffered by the said dependents as a result of the negligence of the second defendant the driver and servant of the first defendant, in causing the death of the said Kodzovi Klugah.

The dependants on whose behalf damages were claimed against the defendants are (a) the plaintiff herself, Madam Mary Afiwa Solomon, the uterine sister of the deceased Kodzovi Klugah, (b) Moses Kofi Klugah, aged thirteen years, son of the deceased, (c) Charles Komla Klugah, aged eleven years, son of the deceased, (d) Adjovi Klugah aged eight years daughter of the deceased and (e) Madam Mieso Klugah widow of the deceased.

In paragraph 4 of her statement of claim, the plaintiff pleaded that on or about the 21st December, 1960, the late Kodzovi Klugah was lawfully on the Keta to Denu road near Sallakope village when the second defendant, the driver and servant of the first defendant so carelessly and recklessly and negligently drove the first defendant's tipper truck No. T.V. 216 on the Keta to Denu road that it violently struck down the said Kodzovi Klugah, whereby he sustained fatal injuries from which he died.

The defendants did not defend the suit as to the question of negligence, and on the 25th October, 1961, interlocutory judgment was entered for the plaintiff and against the defendants jointly and severally. Hearing as to quantum of damages which the first defendant contested was fixed for the 31st October, 1961. On that date, on the application of counsel for the first defendant the matter was adjourned to the 7th November, 1961, to enable him to carry out negotiations for a settlement with the plaintiff; but on the 7th November, 1961, the court was informed that no agreement had been reached. In the meantime defence counsel had filed an application for an order of this court to set aside the interlocutory judgment entered for the plaintiff herein. When the motion was called, counsel withdrew it, and the application was accordingly struck out. Evidence was then led by and on behalf of the plaintiff as to the quantum of damages.

In describing the position and mode of living of the deceased, the plaintiff told the court that she lived with her late brother Kodzovi Klugah who carried on business in his lifetime as a kente weaver and a farmer, and also a fisherman having his own fishing net, and that his average net income was G55 per month. The plaintiff further told the court that the deceased was solely responsible for the maintenance and educational training of his three children and that out of his earnings he spent G20 on the two boys Moses and Charles Klugah who were then living and attending school at Denu. It is to be noted from the evidence of P.W.2 that six months prior to his death, the deceased had sent his daughter Adjovi Klugah to Lome to live with P.W.2 where she was to attend school, and that the deceased remitted her G10 monthly for the young girl's upkeep and living. According to the plaintiff she was herself receiving a [p.689] monthly stipend from the deceased varying from G10 to G15 as she was then trading on a small scale. The plaintiff maintained that customarily on the death of her brother, the responsibility for the care and maintenance and educational training of the three children of the deceased fell upon her, and that in order to enable her to carry out that duty, she intensified her trading business, and further in order to enable her to carry out that business successfully, she removed the two boys, Charles and Moses Klugah from Denu to Lome to live there with her uncle, P.W.5, and to attend school there. In the discharge of that duty, the plaintiff said that shortly after the death of her brother, she followed up from where the deceased had left off, and started remitting her aunt P.W.2 the sum of G10 for the maintenance and education of Adjovi Klugah, and G20 to her uncle P.W.5 for the maintenance and education of Moses and Charles Klugah; that she remitted these amounts regularly every month until the end of September, 1961 when owing to a severe fall in her business she had not remitted for October, 1961.

I have watched the demeanour and comportment of the plaintiff very carefully in the witness box, and she has impressed me as a witness of truth. I accept her evidence as to the amount that the deceased earned, also as to the amount he was spending towards the maintenance and education of his children before he died, and as to the fact that she herself has been remitting the sum of G30 per month to P.W.2 and P.W.5 at Lome for the three children. I accept also her evidence that she herself had monthly stipends from the deceased up to the time of his death, and it is not without significance to observe that her evidence as to the deceased's monthly income was not in any way shaken.

The widow of the deceased, Mieso Klugah, did not give evidence for herself. The effect of the plaintiff's evidence as far as she is concerned was that she had been unfaithful to the deceased sometime before his death, and became pregnant by some other man, and although I accept the evidence that there had not been any customary divorce between them, there was no evidence that during the strained period the deceased was maintaining her as a dependent. The inference I draw is that at the date of death of the deceased, Mieso Klugah was not one of his dependents.

The plaintiff?'s evidence as to how the three children went to live at Lome and as to the monthly remittance of G30 has been firmly corroborated by the evidence of P.W.2 and P.W.5. The veracity of the evidence of P.W.5 was put to a rigid test under cross-examination, but he met the test so well by giving a graphic account as to how the amount of G20 remitted to him was disbursed that I feel bound to accept his evidence, as also that of P.W.2 with which I am also satisfied.

I am particularly impressed by the evidence of Moses and Charles Klugah, the expectation of life of whose father has been shortened under such tragic circumstances. Both of them impressed me as very intelligent young lads, and they both quickly answered to cross-examination that they aspired to enter secondary schools after their primary school career, and then to qualify as doctors. There was no evidence led as to the increased prospects of the business of the deceased such as to show that from his [p.690] earnings the deceased should have been in a position to train these children to become doctors, but from the educational start he had afforded them, it is not unreasonable to presume that at least he could have carried out his duty towards them till they completed their secondary school career, and therefore I think it is absurd to suggest, as defence counsel sought to, that just because their father was a farmer and a cloth weaver and a fisherman, these boys would also grow to become farmers and cloth weavers and fishermen.

Counsel for the defence did not call any evidence, but whilst he agreed in his address that the plaintiff and the three children, Charles, Moses and Adjovi Klugah were entitled to damages, he submitted and urged that Charles and Moses and Adjovi should each be entitled to G500 damages, that the plaintiff herself should be entitled to G250 damages, and that these sums together with the special damages claimed and counsel's costs should not exceed the sum of G2,000. On the evidence, I am unable to accept that contention having regard to the claim for the benefit of the three children.

I will first of all dispose of the claim of the plaintiff herself as a dependant. Although as already indicated I am satisfied that the deceased gave her monthly financial assistance in his lifetime, and although the defence has conceded that she is entitled to some measure of damages, yet I cannot consider her as a dependant of the deceased to be entitled to her claim for damages.

By the Law Reform (Civil Wrongs) Act 19591 the term dependant is defined to mean any person for whose benefit an action could in accordance with section 3 of the Act be brought under the Act of the United Kingdom known as the Fatal Accidents Act, 18462, as it applies in Ghana. Section 3 of the Law Reform (Civil Wrongs) Act, 1959 reads as follows:

"3 (1): The person for whose benefit an action may be brought under the Act of the United Kingdom known as the Fatal Accidents Acts, 1846, as it applies in Ghana (which is an Act which provides for the recovery of damages where a person's death has been caused by the fault of another) shall be:?-

(a) any wife or husband of a deceased, and

(b) any child or grandchild or stepchild of the deceased, and

(c) any parent or grandparent or step-parent of the deceased.

(2) In deducing any relationship described in subsection (1) of this section any illegitimate person shall be treated as being, or having been the legitimate offspring of his mother and reputed father".

It is quite clear that the plaintiff as a sister of the deceased does not come within this definition, and that she cannot be entitled to any claim for damages resulting from the death of the deceased. This disposes of the plaintiff?'s personal claim as a dependent of the deceased.

I will now deal with the claims of the children Charles, Moses and Adjovi Klugah. It is not disputed that the late Kodzovi Klugah was about 43 years old at the time he met his sudden death. There is abundant [p.691] evidence that he was in his lifetime solely responsible for the maintenance and living and education of his children and that he spent G10 on each of them, and it clear that by his death these children have suffered pecuniary loss. There is evidence also that the deceased lived a careful and a good normal life, and nothing abnormal has been suggested about him that could otherwise have expedited his death. I estimate that he had an expectation of life for a further 27 years, that is, till he reached the age of 70, and that he would have had at least 17 years of active working life in the ordinary way, that is, till he attained 60 years, during which the deceased could from his earnings have been in a position to carry out to the full his obligations towards the upbringing and education of the three children until each of them attained the age of 21 years.

I have taken into consideration the present ages of the three children and the stage they have reached in their educational course, and making allowance for the period within which they can be expected to have completed a secondary educational career, I take the view that at the age of 21 years, they would each and everyone of them have still been dependant upon their late father. This would mean that the period of dependency is eight years for Moses Klugah who is now thirteen years old, ten years for Charles Klugah who is now eleven years old, and thirteen years for Adjovi Klugah who is now eight years old.

There is on the evidence which I have accepted the known figure of regular monthly expenses made by the deceased in his lifetime towards each of the three children which by his death is evident pecuniary loss to them, and in the absence of evidence that in the course of the years during his working life the deceased would have been incapable of maintaining a continuity of his such obligations, my task in assessing the pecuniary benefits which these children might have reasonably expected from the continuance of their father?'s life is not difficult. I am taking into consideration the obvious fact that as these three children grow up, the expenses towards their living and maintenance and education must rise, and such that the deceased would have found it his duty to meet. I have endeavoured to find as accurately as possible the pecuniary loss sustained by the three children Moses, Charles and Adjovi Klugah resulting from the death of their father and I have come to the conclusion that they are rightly entitled in all to the sum of G4,500 by way of damages.

Accordingly I do order that the defendants shall jointly and severally pay this sum of 4,500 to the plaintiff for the benefit of Moses Kofi Klugah, Charles Komla Klugah and Adjovi Kulgah together with the sum of G80 representing special damage, plus 200 guineas cost including counsel?'s brief fee of 150 guineas.

I direct that this sum of 4,500 shall be apportioned as follows: G1,700 to go to the benefit of Adjovi Klugah; G1,500 to go to the benefit of Charles Komla Klugah; and G1,300 to go to the benefit of Moses Kofi Klugah.

Decision

<P>Judgment for the plaintiff.</P>

Plaintiff / Appellant

G. S. Lassey

Defendant / Respondent

E. Kom for the first defendant. Second defendant not represented, and did not appear at the trial.

Referals

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