John Nwafor & Anor Vs Nwamuo Nduka & Anor (1972)
LawGlobal-Hub Lead Judgment Report
O. ELIAS, C.J.N.
This is an appeal from the judgment of Kaine, J., in the High Court at Onitsha on January 25,1965. The action was brought, under the Fatal Accidents Law Cap. 52 of 1963 Edition of the Laws of the former Eastern Nigeria, by the father of the deceased on behalf of himself and the other dependents.
The relevant facts may be summarised as follows: The deceased, Victor Nduka, was in the early hours of April 5,1962, a passenger on a lorry driven by the second defendant (who had been sued jointly and severally as the servant or agent of John Nwafor, the first defendant, being the owner of the lorry No.EO 2441). It was established that the lorry was at the material time on its way from Onitsha to Kumba in the Cameroons; that it was travelling at an excessive speed when it ran off the road for a distance of 146 feet before it fell into a ditch; somersaulted and became a complete wreck; that the road was a straight and tarred one, very wide and there was no rain, that the deceased was one of the six passengers who died on the spot as a result of the accident, negligence having been proved against the defendant; and that it was a case of res ipsa loquitur.
On the issue of damages, the trial judge held that the deceased was a promising lad of only about 28 years at the time of his death, and proceeded to award each of the widow and her two infant children the sum of 60pounds per annum for a period of twelve years during which he would actively have supported them had he lived. With regard to the father, mother and all other dependants including the two brothers of the deceased whom he was helping their father to maintain at school at the time of his death, the Judge awarded a lump sum of 240pounds, although the father claimed to have been in receipt of a monthly subsidy of 30pounds from the deceased. In total, the learned trial Judge thus awarded the sum of 2,400pounds as damages to all the deceased’s dependents who had claimed the sum of 10,000pounds.
Against this judgment, the defendants, the owner and the driver of the lorry respectively, brought this appeal on the following grounds:
(a) the learned trial Judge erred in law and in fact in entering judgment against the defendants in that there was no conclusive proof before him of the speed of the lorry to indicate that the speed was excessive;
(b) the learned trial Judge erred in law and in fact in failing to show clearly the grounds of negligence relied upon in entering judgment against the defendants in that in his judgment he treated it as a case of speeding and at the same time as a matter of res ipsa loquitur;
(c) the learned trial Judge erred in law and in fact in failing to show how he arrived at 60pounds each a year for the second plaintiff and her infant children when he had held as a fact that he did not believe that the deceased was making up to 44pounds a month. He also failed to show the deceased’s earnings and his personal and living expenses;
(d) the learned trial Judge proceeded upon wrong principles of law in that the awards were clearly erroneous estimates of damages being manifestly too large and that a datum or basic figure should be turned into a lump sum which should be taxed down having due regard to uncertainties, namely, the widow again marrying and thus ceasing to be a dependent and other like matters of speculations and doubt as required by law;
(e) the learned trial Judge failed in law to take into consideration assets worth over 2,300pounds left by the deceased which but for his death would not have come to the possession of the plaintiffs and for which deductions should have been made as the plaintiffs’ interests had been accelerated.
At the opening of the hearing before us, Mr. Sofola for the defendants/appellants sought and was granted leave to abandon grounds
(a) and (b) of the appeal and to argue grounds (c) to (e) together. Both prayers were granted. Having thereby admitted the liability of his clients under the Fatal Accidents Law of 1956, he said that his main line of attack would be against the quantification of damages as assessed by the trial Judge. It soon became clear that he was not questioning the damages awarded in respect of the deceased’s parents and children; rather, he was concerned to show that, with respect to the widow, the Judge bad been wrong in using twelve as the multiplier of the datum of 60pounds per annum as the damages due to her.
Perhaps a convenient starting point would be grounds (d) and ( e) regarding the general principles underlying the basis of assessment of damages payable to a deceased’s dependants under the Fatal Accidents Law, 1956, Section 7 of which is in terms equivalent to Section 2 of the English Fatal Accidents Acts 1846-1908. With reference to the English Acts, Lord Wring suggested in Davies v. Powell Duffrym Associated Collieries Ltd. (1942) AC 601, the following regarding the mode of assessment of damages, at p. 617: “There is no question here of what may be called sentimental damages, bereavement or pain and suffering. It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a number of years’ purchase. That sum, however, has to be taxed down by having regard to the uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt.” It is clear that this formula is only appropriate where the deceased is the breadwinner of the family and, apparently, where he is also a wage earner.
Now there are two ways of dealing with the issue of quantification of damages in cases of death arising from accidents; either to begin by awarding a lump sum representing the total liability of the defendants and thereafter to apportion the damages between the various dependants, or to begin with individual claims, the pecuniary loss suffered by each dependent being separately assessed. The latter mode has in practice been generally preferred, as per Lord Guest in Kassam v. Kampala Aerated Water Co. (1965) 1 WLR 668, at p.672. Section 7(2) of the 1956 law requires that any amount recovered under it must, after deducting the costs not recovered from the defendant, be apportioned amongst the persons entitled thereto in such shares as the court may direct.
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