BONNEY vs. BONNEY [1993]DLSC4323

Date	1993-01-12
Suit No.
Citation No.	[1993]DLSC4323

ARCHER CJ

WUAKU JSC

AMUA-SEKYI JSC

AIKINS JSC

WIREDU JSC

BAMFORD-ADDO JSC

HAYFRON-BENJAMIN JSC

CAB-ADDAE FOR THE APPELLANTS.

[1993]DLSC4323
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													<main id="main" class="content" style="min-height: 60rem" >BONNEY<o:p></o:p>vs.<o:p></o:p>BONNEY<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

[1992-93]
2 G B R 769 -778&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
12 JANUARY 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CAB-ADDAE
FOR THE APPELLANTS.<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

ARCHER
CJ, WUAKU JSC, AMUA-SEKYI JSC, AIKINS JSC, WIREDU JSC, BAMFORD-ADDO JSC,
HAYFRON-BENJAMIN JSC<o:p></o:p>

</div>AMPIAH JA. The plaintiffs
in this action were the parents of Master Tawiah Anaman who was killed in a
motor accident. The plaintiffs, as administrator and administratrix
respectively of the estate of the deceased, took action against the defendants
for damages for negligence resulting in the death of their son.<o:p></o:p>The 1st defendant was the
owner-driver of vehicle No GN 3588 which was involved in the accident, and
which had been insured at the time by the 2nd defendant.<o:p></o:p>At the end of the trial,
the learned trial judge gave judgment for the plaintiffs and awarded them a
total of six hundred thousand cedis with costs of sixty thousand cedis against
the defendants.<o:p></o:p>The defendants did not
appeal against the judgment. The plaintiffs however have appealed against the
judgment on the damages awarded.<o:p></o:p>Counsel for the plaintiffs
contended that “having regard to the overwhelming evidence as to the loss
suffered by the appellants, as a result of the death of Master Tawiah Anaman,
and the excellent performance of the deceased at school, the damages of
¢600,000 awarded the appellants were woefully inadequate”.<o:p></o:p>The plaintiffs
(hereinafter referred to as ‘the appellants’) did not claim any special
damages. They however claimed for (i) loss of service to them and the
grandmother, (ii) loss of prospective income and (iii) burial and funeral
expenses.<o:p></o:p>The learned trial judge
found that the deceased rendered some services to his parents and also acted as
a house help to his aged grandmother. He however did not accept wholly the
amount for services rendered; he did not state how much of the services he
accepted and how much he would award the parents and the grandmother for the
loss of such services. The learned trial judge also accepted that some funeral
expenses were incurred but not to the extent claimed.<o:p></o:p>As stated earlier the
damages claimed by the plaintiffs were general although specific amounts were
mentioned in both the statement of claim and the evidence, for certain items.
The learned trial judge awarded a bulk sum of ¢600,000 as damages. This,
appellants regard as woefully inadequate.<o:p></o:p>The award of damages is at
the discretion of the trial judge. Once a basis has been shown as to how the
damages have been arrived at, unless the basis is wrong, an appellate court
would have no justification for interfering with the award. In the instant case
even though the learned trial judge made certain findings upon which he made
his award, it is not clear how he arrived at the bulk figure.<o:p></o:p>Section 16(1) of the Civil
Liability Act 1963 (Act 176) provides:<o:p></o:p>“Where the death of a person is caused
by the fault of another such as would have entitled the party injured, but for
his death, to maintain an action and recover damages in respect thereof, the
person who would have been so liable shall be liable to an action for damages
for the benefit of the dependants of the deceased.”<o:p></o:p>Section 18 of the Act
provides that:<o:p></o:p>“The damages under section 16 of the
Act shall be -<o:p></o:p>(a) the total of such amounts (if any)
as the court considers proportionate to the loss resulting from the death to
each of the dependants, respectively, for whom or on whose behalf the action is
brought...”<o:p></o:p>Sub-section 5 of section
18 of the Act provides further that:<o:p></o:p>“(5) In addition, damages may be
awarded in respect of expenses actually incurred by the deceased before his
death and in respect of funeral and other expenses incurred by the dependants
or the personal representative by reason of the wrongful act.”<o:p></o:p>The burial and funeral
expenses claimed were ¢30,000. Even though the judge did not accept wholly the
amount, he did not say how much of this he accepted. I would award the
plaintiffs ¢29,000 for burial and funeral expenses.<o:p></o:p>The late Tawiah Anaman was
a 13-year old Form 2 pupil of the AME Zion Middle School, Aboom, Cape Coast.
The evidence shows that he was a brilliant pupil with a bright future. The
judge found that he rendered services to his parents and grandmother who were
all dependants. The judge did not however accept wholly the extent of the said
service; he did not quantify how much each of the dependants had lost by the
death of the deceased, though in the end he awarded a lump sum.<o:p></o:p>It has, however, for long
been settled that damages are not awarded as a solatium for the bereaved but as
compensation for the pecuniary loss suffered by the dependants of the deceased
as a consequence of his death. See Blake v Midland Rly [1852] 18 Q B 93;
Mallett v McMonagle [1969] 2 WLR 767, HL. If no pecuniary loss is proved, therefore,
the defendant is entitled to succeed - Barnet v Cohen [1921] 2 KB 461; but it
is not necessary that pecuniary advantage should actually have been derived
from the deceased before his death. Damages are to be calculated in reference
to a reasonable expectation of pecuniary benefit. So, in Taff Vale Rly Co v
Jenkins [1913)] AC 1 where the deceased was an intelligent girl of 16 who had
almost completed her apprenticeship as a dress maker, a jury's verdict in
favour of the respondent was sustained notwithstanding that she had not as yet
earned anything and had so far conferred upon them no actual pecuniary benefit.
Contrast, Barnett v Cohen (supra), where the claim failed because the deceased
was just 4 years old.<o:p></o:p>