Layiwola & Anor V Bello & 2 Ors (1965)

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ONYEAMA JSC 

This appeal is limited only to the question of the assessment and the quantum of damages awarded to the dependents of a deceased who was killed in a fatal motor car accident on 6th July, 1959. The dependents are his widow and two daughters; the learned trial judge awarded £1,500 which he apportioned as follows: £300 to the widow, £500 to the elder daughter and £700 to the younger. The judgment was given on the 19th of February, 1962 and the age of the widow was then about 35 years and those of her daughters were said to be 7 years and 31/2 years.

Mr. Sofola’s first complaint is that the learned trial judge was wrong in first dividing the compensation among the dependants before stating what the amount of damages awarded was; he submitted that a lump sum award should first have been made in view of the wording of section 2 of the Fatal Accidents Act, 1846 which requires that in every action brought under the Act-

“the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the (dependents) in such shares as the jury by their verdict shall find and direct.”

We do not find any merit in this argument; there is no magic in the order in which the court may deal with damages so long as they are properly assessed and apportioned.

It was next submitted that the award was too high having regard to the learned judge’s finding that the deceased was spending £120 per year on his dependents; Mr. Sofola suggested that the learned trial judge should have taken eight years purchase and awarded a sum between £850 and £960. No authority is cited which obliges the learned trial judge to accept eight years purchase as the primary factor; in our view so long as he awards a sum “proportioned to the injury resulting from the death” the award will not be disturbed.

The main attack in this appeal is contained in the fourth ground of appeal which reads:

“The court below erred in law in failing to take into account the pecuniary benefit accruing to the plaintiffs in consequence of the death of the deceased”.

According to the learned trial judge the deceased was a produce buyer in fairly affluent circumstances who was said to have left two houses-one at Abeokuta and the other at Alagbado. There was no evidence about his income, but he expended about £6 a month for the maintenance of his dependents and about £80 a year for clothing them.

It was submitted to the learned trial judge that the dependents had not proved any pecuniary loss consequent on the death of the deceased: the dependent widow had remarried and the dependents now had the two houses.

The learned judge rejected this submission and refused to take the two houses into account because, to quote the learned judge, “in assessing compensation, however, it is well settled law that the assets of the deceased should not be taken into consideration.” For this proposition the learned judge relied on Phillips v. London and Southwestern Co. (1879) 4 Q.B.D. 406. That, however, was not a fatal accident case: it was one of damages in a personal injury case. Mr. Sofola suggested that the award to the children be reduced to £800-£850. He referred us to Peacock v. Amusement Equipment Co. Ltd. [1954] 2 Q.B. 347, which [at p. 356] quotes the statement of principle given by Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd. (No. 2) [1942] A.C. 601 [at 611] namely that-

“The Act of 1846, s.2, provides that the action is to be for the benefit of the wife or other member of the family, and the jury (or judge) are to give such damages as may be thought proportioned to the injury resulting to such parties from the death. The damages are. to be based on the reasonable expectation of pecuniary benefit or benefit reducible to money value. In assessing the damages all circumstances which may be legitimately pleaded in diminution of the damages must be considered: Grand Trunk Ry. Co. of Canada v. Jennings 13 App. Cas. 800, 804. The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one hand, the loss to him of-the future pecuniary benefit, and, on the other, any pecuniary advantage which from whatever source comes to him by reason of the death.”

We note that Mr. Sofola did not cite Peacock’s case in the court below. We agree that the value of the two houses could be pleaded in diminution of the compensation awarded, but think that the learned counsel ought to have asked p.w.5 Idris Akiyode, who sued on the children’s behalf, about the houses. As it is, we cannot tell whether the yield of rent from them would materially affect the award. We do not think that we should send the case back for evidence in favour of the defendants which their counsel could have obtained during the trial, had he wished. He omitted to do so, and there the matter must remain.

As for the widow claimant, Mr. Sofola has argued that she is now no worse off than before, and that the learned judge erred in applying what was said in Anamali v. Ijirigho (1960) 5 F.S.C. 97 at 100, about the widow there: It appears from the judgment in that case that the widow had a child by another man after her husband’s death: it does not appear that she became his wife. In the case in hand the learned trial judge states-