Principles

·  TORT — Damages — Death action — How to estimate widow’s damages.

·  DAMAGES — Tort — Death action — How to estimate widow’s damages.

Widow’s damages in a death action are husband’ wages, considering regularity of employment. minus husband’s usual personal living expenses, for a number of years estimated on consideration of all uncertainties of death, future marriage, etc.

Widow’s damages in a death action are husband’ wages, considering regularity of employment. minus husband’s usual personal living expenses, for a number of years estimated on consideration of all uncertainties of death, future marriage, etc.

Judgment

Advocates: Malik Ibrahim and Mohamed Hassan Shebeika (for the Attorney-General)………………... for defendants applicant .

Mohamed El Hassan Bedawi……………………… for plaintiff

MA. Abu Rannat, C.J, June 13, 1964:—On January 3, 1961 at Khartoum two Government cars which were part of the fire brigade fleet collided, and as a result of their collision the plaintiff’s son died. On July 14, 1963 the plaintiff brought an action against the Government claiming  £S. 4,000 as damages for the death of her only son, on whom she was dependant. On August 19, 1963 the plaintiff appeared by her advocate, and a representative of the Attorney-General appeared for the Government. September 9, 1963 was fixed for settlement of issues, and on that date the plaintiff appeared but the defendant did not. A default decree for the claim and costs was issued by the Province Judge. On September 15, 1963 the defendants applied for the decree to be set aside, but the learned Province Judge refused to re-open the case. On application to the Court of Appeal, the application was allowed, but the defendants were warned to appear in time whenever they were so summoned by the Court. On January 4, 1964 plaintiff’s advocate applied for the case to proceed and the defendants were summoned to appear on February 6, 1964. On this date the plaintiff appeared but the defendant did not. The District Judge then passed a default decree against the defendants for the claim and costs.

Defendants applied to the Province Judge for revision of the default. decree, but His Honour the Province Judge refused to set aside the default decree after hearing both sides on the application.

This application is against the decision of the Province Judge, who re fused to entertain the application of the defendants.

I do not intend to burden this judgment with the lengthy argument submitted by both parties as they agreed that the default decree be set aside, and the defendants accepted liability but they only dispute the quantum of damages claimed by the plaintiff.

Court: M A. Abu Rannat C.J. and M.A. Hassib J.

As a Court of Appeal we have two courses open to us, that is, either to send the case back to the Court below to assess the damages, or hear arguments as to facts and law and then fix the amount to be paid to the plaintiff. We preferred to take the latter course as we do not like to delay the decision any longer.

The plaintiff is an old woman about 60-65 years of age, although her age was given as 70 when she gave evidence before the District Judge on February 18, 1964. As to the deceased’s income, the official record shows that he was a fire brigade man who was receiving at the time of his death a salary of £S. 13.980m/ms. including the cost of living and that if he reached the age of retirement at the age of 55, his salary would be £S.l6.880- m/ms. At the time of his death he was 35. He left a daughter aged 6 and he was paying to her a monthly alimony of £S.2.500m/ms. He was also paying £S.2.500m/ms. monthly rent for the house she was occupying. His mother was living with him. And he was paying for her food and clothes.

In estimating the amount of damages to be awarded in such a case as this, the courts often find help in the principles enunciated by Lord Wright in Davies v. Powel Duffryn Associated Collieries (1942) A.C. 601, 617:

            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 nay depend upon the regularity of his employment, Then there is an e 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 enerally be turned into a lump sum by taking a certain number of years purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependant, and other like matters of speculation and .doubt.”

We have taken these principles into consideration and think that she was deriving a monthly pecuniary benefit of £S.3.500m/ms, and that she might live for 12 years. This means that she would be entitled to about £S.524, say a lump sum of £S 500, which appears to us in the particular circumstances of the case reasonable.

The respondent plaintiff’s advocate is to be awarded £S.l5 costs.

M.A.Hassib, 1., June 13, 1964:— I concur.

Editors’ Note: An alternative method has recently been suggested by Anthony Cripps, G.C., A Better Way Than Guessing Damages, The limes (London), September 7, 1964, p.11: “There is no need at all now for a Judge to have to make his guess at the multiplier, which will no doubt be a correct guess on average but therefore nearly ah incorrect in regard to any individual case. It would be far better if the Judge decided only the amount of the dependency (or of the loss of earning power) and the date from which it was t be paid; and then that sum should continue to be paid by the insurance company until improvement or deterioration in physical condition, death, remarriage, or any other factor eradicates or substantially alters the correct figure. The objection that this lacks finality is no longer valid when the payers are in fact large companies, who never die or give up business, instead of private individuals.

            At present, simply because judgment has to be for a lump sum, some thing has to be done with that sum and it is either paid in one to an adult male or invested for a widow or child, who will then receive it over the years in one of many ways none of which is at all equivalent to the weekly loss which is the whole basis of the award.”