EL AWAD MUSTAFA v. PANAYOTIS GEORGE KARKANIS

(COURT OF APPEAL)

EL AWAD MUSTAFA v. PANAYOTIS GEORGE KARKANIS

AC-APP-29- 1960

Principles

· Damages—Fatal accident—Head of claim not specified—Greater damages claimable by deceased’s estate than under Fatal Accidents Acts—Claim to be treated as claim by estate

· Tort—Fatal accident—Deceased’s father’s claim originally treated as under Fatal Accidents Acts—Deceased’s estate could claim greater damages

· Tort—Survival of actions—Deceased’s father’s claim

Respondent knocked down and killed appellant’s daughter, aged nine, as she was crossing the road in a reasonable manner in front of respondent’s car. No other traffic was on the road at the time. Appellant sued respondent in the High Court, HC-CS-379-1959, (1960) S.L.J.R. 206, in respect of the death of his daughter, for damages for respondent’s alleged negligence. Respondents defence, which was accepted by the High Court, was that the accident was caused by a sudden, unforeseeable failure of his foot brakes which occurred
just as he used them to avoid hitting the girl, and that such a failure, being unforeseeable, amounted to an inevitable accident, there being no negligence on respondent’s part. The High Court also held that, if respondent had been found liable, the damages awarded should be small—about £S.50 the measure of damages in such a case was the amount of prospective pecuniary benefit to appellant, from the continuance of deceased’s life, which had been lost.
From this decision appellant appealed to the Court of Appeal.
Held: (i) Where a father of a deceased sues in respect of the death, but does not specify the head of claim, nor sues as representative of all the heirs of the deceased, then the claim may be treated as made under the principle of the (English) Fatal Accidents Acts. 1846—1959.
(ii) But where, in such a case, greater damages might be recovered if the claim were made by the heirs of the deceased, suing on the cause of action vested in the deceased at death, under the principle of the (English) Law Reform (Miscellaneous Provisions) Act, 1934 it would be a mere technicality to prevent this result from being reached, and the claim should be regarded as made under the 1934 Act; the heirs of the deceased should be ascertained and instituted as the plaintiffs in the suit.

Judgment

Advocates: Dafalla El Hag Yousif ... for appellant

Emile Kronfli …………………….for respondent

Babiker .Awadalla 1. January 9, 1961 :—This is an appeal against the decision of the Honourable Judge of the High Court, Khartoum, in HC-CS 379-1959, (1960) S.L.J.R. 206 , which was a claim for damages estimated at £S.600 in a running down case in which the victim was a girl of nine, and the plaintiff the girl’s father.

The accident took place on October 6, 1958, at Omdurman when, at about 5 p.m., respondent was driving a private car on the river road some where about the point that a road branched off to meet the main tramway road at El Mawrada. The victim was carrying a guffa of grass and was diagonally crossing the road from south to north when respondent came from Khartoum and entered the river road at El Mawrada at a point which, according to the evidence, was about sixty metres westward. According to the only independent eye witness, there were no cars on the road besides respondent’s and, despite this fact, respondent knocked down the girl and killed her almost instantaneously.

Respondent was tried by the Police Magistrate, Omdurman, and convicted. £S.50 was awarded to the girl’s father under the Penal Code, s.77B It was proved before the court below that the car was examined by the police immediately after the accident and that both foot and hand brakes were found to be defective. Nonetheless, the Judge of the High Court dismissed the claim of plaintiff-appellant, accepting respondent’s theory that the foot brakes failed just at the point of impact and therefore that the death of the girl was due to an inevitable accident.

This court has always expressed its unwillingness to interfere with decisions of courts of first instance when the point involved is solely one of fact, yet in this particular case we feel that the decision of the Honour- able Judge of the High Court was obviously against the weight of evidence. The judge seems to have accepted without question the evidence of the respondent and his relatives that the brakes were functioning all the way from Khartoum to Omdurman, but he disregarded the very important evidence of D.W. 4, the mechanic brought by respondent himself, who said on cross-examination that the breaking of the foot-brakes leather does not prevent the car stopping in an emergency, though afterwards the brakes become loose and cease to function.

But even assuming this point in favour of respondent does it necessarily follow that he should be absolved from liability for the accident? Clearly he is not. Gibb and Miliner. Trial of Motor Car Accident Cases 79—80 (3rd ed. 1947) states:

The use of the brakes is not the only means by which a collision may be avoided, and the driver may also be required to make use of the steering gear or any other means which are at hand to avoid the threatened impact. The fact that the brakes failed to work when the driver saw the danger of a collision would not excuse his failure to use the steering mechanism and thus avoid the collision if there was ample room to steer clear.”

There was no doubt plenty of room in this case according to the testimony of P.W.5 who said that, had respondent swerved a bit to the right, he would have avoided the accident. This same witness stated that the road was clear of cars.

Even according to the evidence of D.W. 4, respondent’s own witness, hand-brakes can stop the car in an emergency. Respondent had no defence why his car was not equipped with good hand-brakes and must therefore be assumed to have, through his own negligence, deprived himself of an alternative opportunity to avoid the accident.

We are therefore of opinion that the issue of negligence should have been decided against respondent. We are also of opinion that there is not the slightest evidence of contributory negligence on the part of the deceased. She was using her legitimate right of crossing the road at a time when no car was dangerously near her. She was on the left side of the road when she was knocked down and it appears from the evidence of P,W.5, which we see no reason to doubt, that respondent must have thought that he could overpass the girl on her left side, but only discovered his miscalculation when it was too late, We now come to the question of damages. The Honourable Judge of the High Court says that in his opinion the damages should be a small sum even if respondent were found negligent because in his view the measure of damage is “the future prospect of pecuniary loss” (1960) S.L.J.R. 206, 207. It is not clear whether the Honourable Judge of the High Court means to say that by being paid £S.50 Out of the fine appellant is not entitled to any further damages, even if respondent were found liable, or whether in his opinion appellant is entitled to a further £S.50 over and above the compensation paid by the Criminal Court. In fixing this figure. the Honourable Judge of the High Court says that the measure of damage is the future prospect of pecuniary loss, and it is therefore assumed that the Honourable Judge of the High Court had in mind a remedy analogous to that awarded in England under the Lord Campbells Act, the Fatal Accidents Act, 1846. The plaint itself does not say whether the amount claimed is for injury consequential on the death of the deceased claimable in England under the last-mentioned Act or whether it is for shortened expectation of life which in England is now available to the heirs under the Law Reform (Miscellaneous Provisions) Act of 1934. It may be that the Horiourable Judge of the High Court was right in assuming it is the former because appellant was not suing on behalf of the heirs but in his own person. Before us the learned counsel for appelant contended otherwise and asserted, despite the fact that the action is not brought on behalf of the estate, that the damage claimed is for loss of expectation of life. There is no doubt that had the action been brought on behalf of the estate by analogy to the English Act of 1934, the damages claimed would have been considerably greater than what appellant would have got in the present action suing in his own capacity as a parent of the deceased. I am therefore of opinion that appellant should not be prejudiced merely by reason of a technicality. I think that the title of this suit should be altered to make the appellants the heirs of the deceased and case returned to the court below to determine the heirs and then summon both parties to a trial of the issue of the damage which the heirs would be entitled to as successors of the deceased for the loss of her expectation of life.

This appeal is therefore allowed with costs, and case referred back for disposal by the Honourable Judge of the High Court as per above directions.

M. A. Abu Rannat C.J. January 9, 1961 :—I concur.

Abdel Rahman El Nur P.J. January 9, 1965 :—l concur.