(HIGH COURT)

HEIRS OF RAHAMTALLA AHMED EL MEDINA v. SUDAN LIGHT AND POWER CO.

HC-CS-20-1959

 Principles

·  Tort—Negligence——Breach of statutory duty by negligence—Failure to guard or secure ground plates over boiler sump

·  Tort—Contributory negligence—Deceased’s act not contributorily negligent where he owed no duty to avoid it nor realised precise danger involved.

·  Tort—Damages—Personal injuries causing death—Fatal Accidents Acts—Assessment of damages—Station of life—Actuarial assessments—Workmen’s compensation

·  Civil Procedure—Parties—Plaintiffs—Claim in respect of death of a person—Proper plaintiffs are heirs or dependants of deceased

·  Tort—Breach of statutory duty—Breach of Workshops and Factories Regulations 1952, r.9

·  Tort—Fatal Accidents Acts—Plaintiffs should be relatives of deceased dependant on or reasonably expecting assistance from deceased

·  Tort—Survival of actions—Claim by heirs and dependants of deceased—Fatal Accidents Acts, 1846—1959 and Law Reform (Miscellaneous Provisions) Act, 1934. applicable

The deceased, an employee of defendants, walked over the checker plates covering the sump of a boiler in a yard on defendants’ premises. Owing to defendants’ negligence the sump was not guarded and the checker plates were not properly secured, with the result that, when the deceased stepped on the plates, they moved, and he fell through the opening into the hot water in the sump and was killed.
Plaintiff, the widow, children and parents of the deceased, sued as heirs and dependants of the deceased for damages for the deceased’s death. Defendants admitted their own negligence, but claimed that the deceased was contributorily negligent in walking over the sump which he knew to be dangerous and could have avoided. Defendants also disputed plaintiffs’ assessment of damages.
Held.: (1) Defendants were liable for breach of statutory duty, i.e., for breach of Workshops and Factories Regulations 1952, r. 9.
(ii) Deceased’s act in walking on the checker plates was not contributorily negligent, although he could have avoided this act, since he had no duty to defendants to avoid the act, nor did he know of the danger that actually
threatened, although he might have known that his act was subject to a different danger.
(iii) Plaintiffs suing in respect of death, at least where the deceased was a Mob amedan, should be either the heirs or the dependants of the deceased.
(iv) The principles of the (English) Fatal Accidents Acts, 1846-1959, and of the (English) Law Reform (Miscellaneous Provisions) Act, 1934, are applicable in the Sudan.
(v) The proper plaintiffs under the principles of the (English) Fatal Accidents Acts, 1846-1959, are relatives of the deceased who, at the time of his death, were dependent upon him, or had a reasonable prospect of financial assistance from the deceased in the future.
(vi) In assessing the damages payable to such plaintiffs the proper test is what would be a reasonable compensation to the plaintiffs for what they have lost through the deceased’s death, taking into account the station in life and standard of living of the plaintiffs and of the deceased.. Statistical and actuarial assessments should not be used.
(vii) Any compensation payable to such plaintiffs under the Workmen’s Compensation Ordinance 1948   should be deducted from the sum assessed as damages under the principles of the Fatal Accidents Acts.

The deceased, an employee of defendants, walked over the checker plates covering the sump of a boiler in a yard on defendants’ premises. Owing to defendants’ negligence the sump was not guarded and the checker plates were not properly secured, with the result that, when the deceased stepped on the plates, they moved, and he fell through the opening into the hot water in the sump and was killed.
Plaintiff, the widow, children and parents of the deceased, sued as heirs and dependants of the deceased for damages for the deceased’s death. Defendants admitted their own negligence, but claimed that the deceased was contributorily negligent in walking over the sump which he knew to be dangerous and could have avoided. Defendants also disputed plaintiffs’ assessment of damages.
Held.: (1) Defendants were liable for breach of statutory duty, i.e., for breach of Workshops and Factories Regulations 1952, r. 9.
(ii) Deceased’s act in walking on the checker plates was not contributorily negligent, although he could have avoided this act, since he had no duty to defendants to avoid the act, nor did he know of the danger that actually
threatened, although he might have known that his act was subject to a different danger.
(iii) Plaintiffs suing in respect of death, at least where the deceased was a Mob amedan, should be either the heirs or the dependants of the deceased.
(iv) The principles of the (English) Fatal Accidents Acts, 1846-1959, and of the (English) Law Reform (Miscellaneous Provisions) Act, 1934, are applicable in the Sudan.
(v) The proper plaintiffs under the principles of the (English) Fatal Accidents Acts, 1846-1959, are relatives of the deceased who, at the time of his death, were dependent upon him, or had a reasonable prospect of financial assistance from the deceased in the future.
(vi) In assessing the damages payable to such plaintiffs the proper test is what would be a reasonable compensation to the plaintiffs for what they have lost through the deceased’s death, taking into account the station in life and standard of living of the plaintiffs and of the deceased.. Statistical and actuarial assessments should not be used.
(vii) Any compensation payable to such plaintiffs under the Workmen’s Compensation Ordinance 1948   should be deducted from the sum assessed as damages under the principles of the Fatal Accidents Acts.

The deceased, an employee of defendants, walked over the checker plates covering the sump of a boiler in a yard on defendants’ premises. Owing to defendants’ negligence the sump was not guarded and the checker plates were not properly secured, with the result that, when the deceased stepped on the plates, they moved, and he fell through the opening into the hot water in the sump and was killed.
Plaintiff, the widow, children and parents of the deceased, sued as heirs and dependants of the deceased for damages for the deceased’s death. Defendants admitted their own negligence, but claimed that the deceased was contributorily negligent in walking over the sump which he knew to be dangerous and could have avoided. Defendants also disputed plaintiffs’ assessment of damages.
Held.: (1) Defendants were liable for breach of statutory duty, i.e., for breach of Workshops and Factories Regulations 1952, r. 9.
(ii) Deceased’s act in walking on the checker plates was not contributorily negligent, although he could have avoided this act, since he had no duty to defendants to avoid the act, nor did he know of the danger that actually
threatened, although he might have known that his act was subject to a different danger.
(iii) Plaintiffs suing in respect of death, at least where the deceased was a Mob amedan, should be either the heirs or the dependants of the deceased.
(iv) The principles of the (English) Fatal Accidents Acts, 1846-1959, and of the (English) Law Reform (Miscellaneous Provisions) Act, 1934, are applicable in the Sudan.
(v) The proper plaintiffs under the principles of the (English) Fatal Accidents Acts, 1846-1959, are relatives of the deceased who, at the time of his death, were dependent upon him, or had a reasonable prospect of financial assistance from the deceased in the future.
(vi) In assessing the damages payable to such plaintiffs the proper test is what would be a reasonable compensation to the plaintiffs for what they have lost through the deceased’s death, taking into account the station in life and standard of living of the plaintiffs and of the deceased.. Statistical and actuarial assessments should not be used.
(vii) Any compensation payable to such plaintiffs under the Workmen’s Compensation Ordinance 1948   should be deducted from the sum assessed as damages under the principles of the Fatal Accidents Acts.

The deceased, an employee of defendants, walked over the checker plates covering the sump of a boiler in a yard on defendants’ premises. Owing to defendants’ negligence the sump was not guarded and the checker plates were not properly secured, with the result that, when the deceased stepped on the plates, they moved, and he fell through the opening into the hot water in the sump and was killed.
Plaintiff, the widow, children and parents of the deceased, sued as heirs and dependants of the deceased for damages for the deceased’s death. Defendants admitted their own negligence, but claimed that the deceased was contributorily negligent in walking over the sump which he knew to be dangerous and could have avoided. Defendants also disputed plaintiffs’ assessment of damages.
Held.: (1) Defendants were liable for breach of statutory duty, i.e., for breach of Workshops and Factories Regulations 1952, r. 9.
(ii) Deceased’s act in walking on the checker plates was not contributorily negligent, although he could have avoided this act, since he had no duty to defendants to avoid the act, nor did he know of the danger that actually
threatened, although he might have known that his act was subject to a different danger.
(iii) Plaintiffs suing in respect of death, at least where the deceased was a Mob amedan, should be either the heirs or the dependants of the deceased.
(iv) The principles of the (English) Fatal Accidents Acts, 1846-1959, and of the (English) Law Reform (Miscellaneous Provisions) Act, 1934, are applicable in the Sudan.
(v) The proper plaintiffs under the principles of the (English) Fatal Accidents Acts, 1846-1959, are relatives of the deceased who, at the time of his death, were dependent upon him, or had a reasonable prospect of financial assistance from the deceased in the future.
(vi) In assessing the damages payable to such plaintiffs the proper test is what would be a reasonable compensation to the plaintiffs for what they have lost through the deceased’s death, taking into account the station in life and standard of living of the plaintiffs and of the deceased.. Statistical and actuarial assessments should not be used.
(vii) Any compensation payable to such plaintiffs under the Workmen’s Compensation Ordinance 1948   should be deducted from the sum assessed as damages under the principles of the Fatal Accidents Acts.

The deceased, an employee of defendants, walked over the checker plates covering the sump of a boiler in a yard on defendants’ premises. Owing to defendants’ negligence the sump was not guarded and the checker plates were not properly secured, with the result that, when the deceased stepped on the plates, they moved, and he fell through the opening into the hot water in the sump and was killed.
Plaintiff, the widow, children and parents of the deceased, sued as heirs and dependants of the deceased for damages for the deceased’s death. Defendants admitted their own negligence, but claimed that the deceased was contributorily negligent in walking over the sump which he knew to be dangerous and could have avoided. Defendants also disputed plaintiffs’ assessment of damages.
Held.: (1) Defendants were liable for breach of statutory duty, i.e., for breach of Workshops and Factories Regulations 1952, r. 9.
(ii) Deceased’s act in walking on the checker plates was not contributorily negligent, although he could have avoided this act, since he had no duty to defendants to avoid the act, nor did he know of the danger that actually
threatened, although he might have known that his act was subject to a different danger.
(iii) Plaintiffs suing in respect of death, at least where the deceased was a Mob amedan, should be either the heirs or the dependants of the deceased.
(iv) The principles of the (English) Fatal Accidents Acts, 1846-1959, and of the (English) Law Reform (Miscellaneous Provisions) Act, 1934, are applicable in the Sudan.
(v) The proper plaintiffs under the principles of the (English) Fatal Accidents Acts, 1846-1959, are relatives of the deceased who, at the time of his death, were dependent upon him, or had a reasonable prospect of financial assistance from the deceased in the future.
(vi) In assessing the damages payable to such plaintiffs the proper test is what would be a reasonable compensation to the plaintiffs for what they have lost through the deceased’s death, taking into account the station in life and standard of living of the plaintiffs and of the deceased.. Statistical and actuarial assessments should not be used.
(vii) Any compensation payable to such plaintiffs under the Workmen’s Compensation Ordinance 1948   should be deducted from the sum assessed as damages under the principles of the Fatal Accidents Acts.

The deceased, an employee of defendants, walked over the checker plates covering the sump of a boiler in a yard on defendants’ premises. Owing to defendants’ negligence the sump was not guarded and the checker plates were not properly secured, with the result that, when the deceased stepped on the plates, they moved, and he fell through the opening into the hot water in the sump and was killed.
Plaintiff, the widow, children and parents of the deceased, sued as heirs and dependants of the deceased for damages for the deceased’s death. Defendants admitted their own negligence, but claimed that the deceased was contributorily negligent in walking over the sump which he knew to be dangerous and could have avoided. Defendants also disputed plaintiffs’ assessment of damages.
Held.: (1) Defendants were liable for breach of statutory duty, i.e., for breach of Workshops and Factories Regulations 1952, r. 9.
(ii) Deceased’s act in walking on the checker plates was not contributorily negligent, although he could have avoided this act, since he had no duty to defendants to avoid the act, nor did he know of the danger that actually
threatened, although he might have known that his act was subject to a different danger.
(iii) Plaintiffs suing in respect of death, at least where the deceased was a Mob amedan, should be either the heirs or the dependants of the deceased.
(iv) The principles of the (English) Fatal Accidents Acts, 1846-1959, and of the (English) Law Reform (Miscellaneous Provisions) Act, 1934, are applicable in the Sudan.
(v) The proper plaintiffs under the principles of the (English) Fatal Accidents Acts, 1846-1959, are relatives of the deceased who, at the time of his death, were dependent upon him, or had a reasonable prospect of financial assistance from the deceased in the future.
(vi) In assessing the damages payable to such plaintiffs the proper test is what would be a reasonable compensation to the plaintiffs for what they have lost through the deceased’s death, taking into account the station in life and standard of living of the plaintiffs and of the deceased.. Statistical and actuarial assessments should not be used.
(vii) Any compensation payable to such plaintiffs under the Workmen’s Compensation Ordinance 1948   should be deducted from the sum assessed as damages under the principles of the Fatal Accidents Acts.

The deceased, an employee of defendants, walked over the checker plates covering the sump of a boiler in a yard on defendants’ premises. Owing to defendants’ negligence the sump was not guarded and the checker plates were not properly secured, with the result that, when the deceased stepped on the plates, they moved, and he fell through the opening into the hot water in the sump and was killed.
Plaintiff, the widow, children and parents of the deceased, sued as heirs and dependants of the deceased for damages for the deceased’s death. Defendants admitted their own negligence, but claimed that the deceased was contributorily negligent in walking over the sump which he knew to be dangerous and could have avoided. Defendants also disputed plaintiffs’ assessment of damages.
Held.: (1) Defendants were liable for breach of statutory duty, i.e., for breach of Workshops and Factories Regulations 1952, r. 9.
(ii) Deceased’s act in walking on the checker plates was not contributorily negligent, although he could have avoided this act, since he had no duty to defendants to avoid the act, nor did he know of the danger that actually
threatened, although he might have known that his act was subject to a different danger.
(iii) Plaintiffs suing in respect of death, at least where the deceased was a Mob amedan, should be either the heirs or the dependants of the deceased.
(iv) The principles of the (English) Fatal Accidents Acts, 1846-1959, and of the (English) Law Reform (Miscellaneous Provisions) Act, 1934, are applicable in the Sudan.
(v) The proper plaintiffs under the principles of the (English) Fatal Accidents Acts, 1846-1959, are relatives of the deceased who, at the time of his death, were dependent upon him, or had a reasonable prospect of financial assistance from the deceased in the future.
(vi) In assessing the damages payable to such plaintiffs the proper test is what would be a reasonable compensation to the plaintiffs for what they have lost through the deceased’s death, taking into account the station in life and standard of living of the plaintiffs and of the deceased.. Statistical and actuarial assessments should not be used.
(vii) Any compensation payable to such plaintiffs under the Workmen’s Compensation Ordinance 1948   should be deducted from the sum assessed as damages under the principles of the Fatal Accidents Acts.

Judgment

Osman El Tayeb P.1. July 28, 1960:—Plaintiffs are the dependants of deceased, Rahamtalla Ahmed El Medina, who are claiming damages for his death that was caused by falling into a sump with hot water. The action is based on the negligence of defendants, the occupiers, in that they failed in their statutory duty under rule 9 of the Workshops and Factories Regulations I952

The sump was that of a boiler erected underground in the yard outside the turbine house, The boiler was partly full of hot water at 200°F. at the time of the accident. The sump was covered with steel checker plates. These checker plates were of heavy steel construction, designed to rest on recesses on the edges of the concrete walls of the sump.

Deceased was the employee of defendants, a ghafir. On July 22, 1957, in the morning, deceased walked from the store, where he was engaged, across the yard to a tap. He filled a bucket of water and while he was walking back, he stepped on the checker plate. It swivelled round on itself, so that the sump became open, and deceased fell in.

Defendants admit negligence, in that contrary to the requirements of rule 9, they did not securely cover or securely fence the sump or in any practicable manner ensure protection against any danger therefrom. They also did not indicate the sump by any warning notice.

Defendants pleaded that deceased committed contributory negligence, in that he recklessly walked over the sump. The sump was in an open yard by the side of the building and it was not necessary for deceased in order to walk to or from the tap to step over it. Secondly, steam was blown into the sump at irregular intervals. This blowing operation is somewhat spectacular and nobody working on its site could fail to be aware of the dangerous nature of this dump. The facts are proved; but in my opinion they do not constitute contributory negligence on the part of the deceased. He could possibly walk round the sump and he could possibly know that the sump contained a danger. But, in the first place he was not under a duty towards the occupiers to walk round the sump on his way to and from the tap. In the second place he did not know that the checker plates were not securely fixed, nor of the possibility of their movement when stepped upon.

I come to the assessment of damages. The list of the issues included the following issue: “. . . are plaintiffs as heirs or dependants or legal representatives entitled to damages?”

From the pleadings, it was not necessary to frame this issue, but though this class of case is nowadays very common, I think it has not yet been made very clear what are the implications of the cause of action on which damages are payable. In the case of Mohamedan deceased persons, the plaintiffs should be either heirs or dependants who may in a case be totally different persons.

However, the gist of the cause of action is negligence by the defendant resulting in death. This cause of action accrues to the dependants for the pecuniary loss they have suffered from the death of that person. This is what the English Fatal Accidents Acts, I846—1959 provide for. The same cause of action as had vested in the deceased person before his death survives to the benefit of his estate. This is what the English Law Reform (Miscellaneous Provisions) Act, 1934, provides for. This Act enacts that the rights conferred by it shall be in addition to the rights conferred on dependants by the earlier Acts.

What is the principle of law that we shall accept and apply in these cases? Negligence or breach of statutory duty on the part of the defendant, resulting in death is fundamentally an accepted cause of action. In my opinion this cause of action accrues to the dependants of deceased. They must be the relatives who were, at the time of the death of deceased, wholly or partially dependent for their living on the earnings of the deceased and those who have future prospects of being assisted by the deceased, had he lived, up to the age of having earnings. It is the pecuniary loss actual or prospective that must be taken into consideration.

In this case plaintiffs are the heirs and the dependants, they are a widow, old parents and children. The measure of damages is the pecuniary loss that they have suffered by the negligent act of defendants resulting in death of their supporter.

I cannot accept the principle of calculation of the earnings during the expected life of deceased, as submitted by the learned advocate for plaintiffs. The statistical and actuarial test is not a sound one. In my opinion the test is the station in life and conditions of living of the dependants and that of deceased. They have to be awarded reasonable pecuniary compensation according to their station in life and standard of living, that will keep them up for the time being. They are not to be enriched or avail themselves out of the unfortunate accident of a better standard of living, but they are entitled to a reasonable compensation that will help them to maintain that standard for a time. It should not be calculated arithmetically on what the supporter would have given them had he lived, because there is much uncertainty in this, in view of the current changes of life and its ups and downs that naturally occur to mankind.

Deceased was a ghafir (gate-keeper) earning a daily wage of 24 P.T. In addition he had other small earnings. He was almost supporting the whole family, in a comparatively low standard of life. Taking into consideration that they were paid compensation under the Workmen Compensation Ordinance 1949, amounting to £S.190 I think that the sum of £S.800 is a reasonable compensation for this family.