ALIMATU vs. BOAMEH AND ANOTHER [1961]DLHC570

Date	1961-12-22
Suit No.
Citation No.	[1961]DLHC570

OLLENNU J

J. C. ARMAH FOR THE PLAINTIFF

J. QUASHIE-IDUN FOR THE DEFENDANTS.

[1961]DLHC570
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&nbsp;[HIGH COURT, ACCRA]

[1961] GLR 798

DATE: 22ND DECEMBER, 1961.

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COUNSEL:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;

J. C. ARMAH FOR THE PLAINTIFF.

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OLLENNU, J.

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&nbsp;

This action was instituted by the plaintiff under the Fatal
Accidents Acts of 18461(1) and 1864,2(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”

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(3). 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(4) and also Clerk &amp; Lindsell on Torts (11th ed.) 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(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 defe</main>