John Nwafor & Anor Vs Nwamuo Nduka & Anor (1972)

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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.

It is, therefore, not for the defendants to specify the shares into which the lump sum should be divided by the court (Section 8 (1)). We therefore reject Mr. Sofola’s attempt to press this upon us.

Section 8(1) of the 1956 Law reads: “It shall be sufficient; if the defendant is advised to pay money into court, that he pays it in as compensation in one sum to all persons entitled under this Law for his wrongful act, neglect or default without specifying the shares into which it is to be divided by the court.” One important matter arising out of this is to consider what the ideal multiplier should be in any given case. Mr. Sofola for the defendants/appellants referred to Daniels v. Jones (1961) 3 All ER 24, at p. 30 in support of the proposition that the court must balance the loss to a dependent of the future pecuniary benefit of which he had a reasonable expectation and any pecuniary advantages which from whatever source come to him by reason of the death. He also cited Kassam v. Kampala Aerated Water Co., (1965) 2 All ER 875, at p. 879, to indicate the judicial attitude in the matter.

But the Privy Council there considered that, on the basis of a fifteen year working life, a multiplier of ten would not be unreasonable and that, having regard to the anticipated savings which might reasonably have been expected to have been made by the deceased if he had lived, no deduction should be made on the score of accelerated benefit. Their Lordships further held that the trial Judge’s award which did not take into consideration the 6,000pounds as the value of the deceased’s estate had been right. We are of the opinion that this case does not help Mr. Sofola’s argument on these points, even though the total award was reduced because the multiplier often was substituted for fifteen.

Mr. Egonu for the plaintiffs/respondents referred us to Daniels v. Jones (1961) 3 All ER 24, at p. 27 and also to Gray and Another v. Barr (1971) 2 All ER 949, especially Lord Denning’s observation at pp. 958

9 to the effect that damages arising as a result of the death of a deceased should not be unduly diminished by benefits “arising by reason of the death”. Lord Reid’s judgment in Taylor v. O’Connor (1971) 1 All ER 365, was further cited to the effect that in assessing the amount of damages, the count must not take into account any private income or assets of the deceased’s widow.

In reply to Mr. Sofola’s contention that the learned trial Judge had wrongly based his assessment on a multiplier of twelve in respect of the widow which he submitted was excessive, Mr. Egonu drew our attention

to Mallet v. McMonagle (1969) 2 All ER 178, in particular Lord Diplock’s view at p. 191 to the effect that a multiplier of sixteen is now usual in Fatal Accidents cases “where the deceased died in his early twenties.” Mr. Egonu, therefore, contended that the trial Judge had been quite reasonable in awarding damages based on a multiplier of twelve in the case of a twentyeight -year-old, as in the instant cases. On the question as to whether the trial court should have taken the probability of the widow re-marrying into account in reduction of the damages payable to her, Mr. Egonu cited Buckley v. John Allen & Ford (Oxford) Ltd., (1967) 1 All ER 539 in which Phillimore, J., had refused to make any deductions for the widow’s chance of re-marrying urging the court to regard it as irrelevant consideration in the present case since there was no evidence that the widow had remarried or that there was a probability of her doing so.

The next question is the submission of the defendants in paragraph (e) of the grounds of appeal that the learned trial Judge should have taken into account the deceased’s assets worth over 2,300pounds which should have been deducted from the lump sum of 2,400pounds assessed by the Judge as general damages.

Now, what is the position in law as regards allowable deduction from general damages awarded under the Fatal Accidents Law Section 7 of the Law stipulates that funeral expenses may be included in damages

recoverable for the benefit of the estate if incurred by the dependants (Section 7 (4)); also, money paid or payable under any contract of assurance or insurance must be disregarded whenever made or by whomsoever made, and it is reasonable to assume that, equally, loss of annuity or a life interest must be excluded in calculating the amount of damages. Thus, under the equivalent provision of the English Fatal Accidents Acts, it was held in Heatley v. Steel Co. of States Ltd., (1953) 1 WLR 405 that no deduction was to be made where the widow lived with her children in the house inherited from her husband. In the instant case, the house in which the wife and her children now live was bought with money derived from the estate. It would appear that damages recoverable by the dependants are the same as would have been recoverable by the deceased himself had he not been killed. It would seem also that the damages recoverable are available for the payment of the deceased’s debts and pass under his will or upon his intestacy. The dependants claimed to have paid the deceased’s debts before using the balance to purchase the house in which they were residing.

In Daniels v. Jones (1961) WLR 1103, Pearce, LJ., at p.1110 observed that arithmetic is a good servant but a bad master although, as observed by Diplock, LJ., in Whittome v. Coastes (1965) 1 WLR 1285,

at p. 293, the figure taken as the multiplier must have some relation to the arithmetic.

As a necessary corollary of his argument that the deceased’s net asset of 2,300pounds should be deducted from the lump sum of 2,400pounds awarded by the learned trial Judge, counsel for the defendants/appellants invited us to overrule Chief Nelson Anamali v. Meme Ijirigho (1960) 5 FSC 97 in so far as it lays down the principle that no such deduction be made, and to prefer Akanbi Layiwola & Anor. v. Sinotu Bello & Ors. (1965) 1 All NLR 318 which favours such deduction. The learned counsel’s argument is that Anamali’s case must be regarded as having been impliedly overruled in the later Layiwola’s case in which Peacock v. Amusement Equipment Co. Ltd., (1954) 2 QB 347 was cited only on appeal, although it was never cited in the Anamali’s case.

The court hereby re-affirms its previous decision in the Anamali’s case for the reason that, even though it was reached per incuriam of the Peacock’s case, it is in accordance with established principle and with the provisions of the Fatal Accidents Law, Cap. 52.

Mr. Sofola’s brief reply was that the judgment of the trial Judge should be set aside and that the assessment of the damages should be based on the difference between the 2,400pounds awarded and the 2,300pounds spent in purchasing the house for the widow and the children. When asked by the court whether the resultant sum of 100pounds would be a fair award, he conceded that it would not seem fair in the circumstances of this particular case although he could see no alternative to a strict adherence to his abstract principle of balancing of assets against benefits accruing to a deceased estate. We do not accept that both law and justice requires us to come to such a conclusion.

In our view, the parents’ as well as the widow’s portions should be paid to them, but the balance in favour of the children should be paid into the High Court at Onitsha to be transferred, if necessary, to a Magistrate’s Court of the area in which the two children reside, to be invested for their benefit.

In the event, the appeal is hereby dismissed, and we award to the respondents costs in this court, assessed at 54 guineas.

Other Citation: (1972) LCN/1465(SC)