19821230 TZHC Dar es Salaam

'( IN THE HIGH COURT OF TANZANIA / AT.DAR ES SALAAM CIVIL CASE NOa 224 OF 1980 MAURICE XAVER NCHIMBI • ,i. ooe·••··•·••• PLAINTIFF • Versus 1. BIASHARA TRANSPORT CCMPANY LIMITED o o o o 1st DEFENDANT 2. GREEN LUKALI • o ., o o ... • • o • • 0 0 • • 2nd DEFENDANT JUDGMENT I3AHATI, Ag. Jo - The plaintiff in this case has brought a suit against the defendants claiming special damages of 4,000/= for funeral expenses of his daughter and general damages exceeding shs. 20,000/= for the loss of his daughter in a motor accident made by the 2nd defendant. The plaintiff set out to prove his case. The first witness Kevin Nchimbi. averred that he was the brother of the deceased Anastasia ·Maurice Nchimbi who was knocked down by 2nd defendant while he the witness arid his sister were proceeding to church. They were both walking on the pavement of Morocco road and the 2nd defendant hit the'deceased who was on the pavement of Morocco road. The deceased died because of this accident. The plaintiff himself Maurice Nchimbi was not an eye witness to the accident. He was only told of the accident and he organised the funeral for his daughter. He spent about shs. 4,000/= as funeral expenses. He said that he was claiming the funeral expenses as special damages and general damages as stated in the plaint. The defendants did not turn up to defend the suit at the close of the plaintiff's case although they were represented during the plaintiff's caseo In accordance with order IX Rule . 6(1) of the civil Procedure Code it was ordered that the case proceed ex parte hencefortho Since the plaintiff had closed his case the case had therefore come to an end and judgment was reservedo Now, according to the evidence before the court, I am satisfied that the plaintiff has proved his case on the balance of the probabilities. j 2 we have uncontradicted evidence to the effect that the deceased was hit by ,the 2nd defendant who was driving the 1st defendant's car while she was walking on the pavement of Morocco road and very much off the road. Short of any explanation from the defence as to how the car happened to come up the pavement and hit the deceased the doctrine of res ipsa loquitur must apply and the defendant be held liable for this accident through his negligence. Therefore, as far as liability is concerned, I am satisfied that it has been established for both defendants since the car belongs to the 1st defendant as the written statement of defence clearly admits. With regard to damages, in particular, general damages, we have to look to the Law Reform (Fatal Accidents and Miscellaneous provisioris) ordinance Cap. 360. section 2(1) of the Act was replaced bys. 164 of Act No. 5/71. section 164 of Act No. 5/71 defines dependant to include a daughtero Also So 3 of Law Reform ordinance Cap. 360 provides that action is maintainable when death is caused by a wrongful acto Then section 4 of the ordinance states that the action is to be for the benefit of dependants. It states: s. 4(1) "Every action brought under the provisions of of this P~rt shall be for the benefit of the dependants of the person whose death has been so caused, and shall be brought either by and in the name of the executor or administrator of of the person deceased or by and in the name of all or any of the dependants (if more than one) of the person deceased. (2) In every such action the court may give such damages as it may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such .action is brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the aforesaid pa,i:-t1es in such shares as the court shall find and direct .. 11 It is clear from the above tha~ the damages which the 'court may give must be "proportioned t9 the injury resulting from such death to the parties respe~tlvely for whom and for whose benefit such action is brought.r• ••• /3 - 3 .,. Mother guidance which I wish to seek is from Clark and Lindsell on TORTS, twelfth editi~•• rn·this book the learned authors at paragraph 397 say this: "Pecuniary loss: The basis of the action {given by the Fatal Accidents Acts) is the pecuniary los$ suffered by the dependants in consequence of the deceased•s death. Nothing may be given by way of solatium. If no pecuniary loss is pr,,ved the defendant is entitled to succeed. But it is not essential that there should be distinct evidence of pecuniary advantage actually derived from the deceased prior to his death. Prospective loss ma¥ be taken into account, but it must be the loss._of a •reasonable expectation of pecuniary advantage•, not a •mere speculative possibility., 11 The learned authors are herediscussing the Fatal Accidents Act 1846 which is in pari materie with our Law Reform (Fatal Accidents and Miscellaneous Provisions) , ordinance Cap. 360. I shall now, therefore, consider in view of the above whether damages may be awarded in this case and how much should be awarded. It is perhaps worthwhile pointing out that-the deceased did not have any dependants nor was· she earning any income at the time of her death.· In view of these facts we have to analyse what injury, if any, has resulted from her death to the parties fer· whom and for whose benefit such action is brought. Bearing in mind the passage in Clark and Lindsell in TORTS that the basis of such action is the pecuniary loss suffered by the dependants in consequence of the deceased•s death, I cannot see any such injury. I am fortified in this view by the case of Asukile Mwakyorna vs. Manyasa Mainge 1967 HCD 165. In this case, the plaintiff• s 7 year old daughter was k_illed in a motor accident. In this action he sought damages 0£ shs. 1,00C./= for 1,oss of society, and shs. 2200/= to compensate for the value of cattle he would have received when she married. It was held that the measure of damages under the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance, is the dependant•s cumulative loss resulting from the .qeceased' s death. It m'ust be shown that the dependant had a reasonable expectation of pecuniary b~nefit if the deceased had lived. Secondly, there was no evidence eo a/4 --4 ' ,} that the child assisted in domestic service and no suggestion that she would have assisted had she lived. Therefore the general damages of shs. 1,000/= were not proven. Finally, it was held that damages with respect to the child's marriage were equally conjectural and must be rejected. The present case is in pari materie with the above quoted case more or less. In both cases the deceased was a dependant earning no income. In both cases it is the parent who wishes to recover general damageso In our present cese it is not even suggested what the general damages are supposed to cover. The plaint, in paragraph 6 simply says: 11 • ., • • • and or the plaintiff an_d or the members of his family have suffered loss and damages. 11 There is no doubt that the plaintiff and the members of his family have suffered serious loss, but whether this loss is recoverable by way of general damages is another question. rt is indeed a further question whether the general· damages recoverable if at all are anywh_ere near shso 20,000/= or more. According to Asukile•s case cited above and according to Clark and Lindsell on TORTS also cited above and indeed according to.the Law Reform (Fatal Accidents and Mi~ce.llaneous Provisions) ordinance, the action is supposed to be for the benefit of the dependants of the person whose death has be so caused, ( and in particular the basis of the action is the pecuniary loss suffered by the dependants in consequence of the deceased•s death~ Nothing may be given by way of solatium for loss of B.ociety. Like in Asukile I s case it would be conjectural to base damages on the hope that the deceased in this case was going to complete school, get employed and assist the family and the plaintiff money-wise. Ii: is only where the deceased was contributing money-wise that substantial general damages are granted. In Dhaniben Chaku Hirji vs. Vinaychandra G.. Modesa 19,67 HCD 51, the deceased had managed a Hindu family business which was owned by his father. • ••./5 5 When he was killed, his mother brought an action on her own behalf and on behalf of some of her children as dependants of the deceased. Following Hindu family custom, :the family lived "as a unit 11 • Accordingly the deceased withdrew approximately shs. 250/= each month from the profits of the business (which were more than shs. so,ooo/= yearly.) for the maintenance of the family. It was held that the family was dependant on the father's business, and its profits were only partly attributable·to the son; his role as 11provider11 under Hindu custom, does not of itself establish the total dependency of the family upon him. The sum of shs. 2,000/= general damages were awarded to the plaintiff and dependants. The above cited case clearly establishes that general damages are recoverable only where pecuniary loss has been suffered by the dependants of the deceased. coming now to this case in the light of what I have said above, I can see no pecuniary loss of any kind which has been suffered by the plaintiff and his family due to the deceased•s death. I am therefore unable to award any substantial damageso Indeed the plaintiff did not establish what he wanted the general damages for. He has simply stated that he has suffered loss and damage. It is therefore not possible in the circumstances of this case to award any general damages. The prayer for general damages therefore fails. With regard to the funeral expenses, I am satisfied that these have been established. All in all I award shs. 4,000/= as special damages for funeral expenses as prayed and I dismiss the prayer for general damages. $I.nee the plaintiff has only been partly successful, each party is to bear his own costs. ---- . --~"'"" .. - .... ·;,·;~..::f; -~::::::- . ,/ _..,/ c:,_./-1/'""--:;_:'". / ,/ \ .. _. ----2 (Ao .BAHATI) \. I' A9• JUDGE ~ 30/12/82 ••• /6 .. Court: Judgment delivered in court in presence of Mr. Majithia for plaintiff on 30/12/82. /,::: .... --·<5j:}{:~~;. ~~-:~~~ ./~:_ ::::0c;:~--;~~;11\ · ..... / · · t, Ag. JUDGE 30/12/1982 Mr. Majithia: I am giving a notice of appeal to the Court of Appeal. Court: The notice of Appeal has been notede 3J/12/82