[1944] EACA 21

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Before LUCIE-SMITH, J.

## SEWA RAM ANAND, Plaintiff

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THE PUBLIC TRUSTEE OF THE COLONY AND PROTECTORATE OF KENYA as Administrator of the estate of CHANAN RAM s/o DIWAN. deceased. Defendant

## Civil Case No. 110 of 1942

Carriage of passenger-Implied term of contract-Breach-Death of contractor owing to breach—Claim against estate—Damages.

The facts sufficiently appear from the judgment.

Held (30-3-44).—That an action for damages for breach of an implied term of the contract lies against the estate of the deceased contractor.

Archer for the Plaintiff.

Burke for the Defendant.

JUDGMENT.—On 5th March, 1941, the plaintiff was a fare-paying passenger in a taxi lorry belonging to one Chanan Ram s/o Diwan now deceased. This lorry ran a regular passenger service between Eldoret and Kitale as is evidenced by the witnesses Dourado and Wainana.

On the day in question this lorry with the plaintiff in it as a passenger was being driven by the owner of the lorry from Eldoret to Kitale, when the lorry came into collision with a railway engine at a level-crossing some three to four miles from Eldoret. What happened immediately before the crash is graphically described by Dourado. The driver of the engine also has told us what he knows about the accident. The scene of the accident is well shown by the photographs put in Exhibits CR 1, 3, 5 and 6. As a result of the collision the plaintiff was seriously injured.

This action cannot lie in tort, because of the principle Actio personalis cum persona mortitur, as the alleged tortfeasor himself, Chanan Ram, was killed as a result of the collision. This Colony has not yet amended its laws abrogating that principle, as has been done in England. However, were it necessary to consider the question of negligence, I should, from the evidence, unhesitatingly hold that the collision was due solely to the negligence of the owner-driver of the lorry.

The action has been brought in contract against the Public Trustee of the Colony as administrator of the estate of Chanan Ram s/o Diwan, deceased.

Mr. Burke for the defendant has contended that though the action is claimed to be in contract it is in fact in tort and points out the fact that general damages are claimed. It is true that in contract-a-claim for general damages as such will not lie but I think that the use of the words "general damages" in the present context refers to those damages arising directly out of the breach and which have to be assessed by the Court as opposed to liquidated amounts such as doctors' and hospital bills.

From the evidence I hold, that there was a contract of carriage between the plaintiff and the deceased owner-driver and that one of the conditions of the contract was that the owner-driver would exercise due care, skill and foresight in carrying the plaintiff to his destination. The defendant by paragraph 8 of his defence admits that if there was a contract of carriage as the plaintiff alleges, there was also an implied term that the owner-driver was to exercise due care, skill and foresight in carrying the plaintiff to his destination. I hold upon the facts that there was a breach of that implied undertaking.

I hold therefore that the plaintiff is entitled to succeed. The question remains then—to what damage is the plaintiff entitled?

Mr. Burke has submitted that the measure of damages in the case of a breach of contract is different from and less than those recoverable in tort. However that may be the principle is that the injured party is entitled to *restitutio in integrum* that is to be placed so far as is possible, in the same position as if the wrong (whether arising out of tort or breach of contract) had not been committed. This appears to be the underlying principle set out in 10 Hailsham at pp. 82 (sections 100, 101), 84 (section 102), 90 (section 115) and 119 (section 150).

On this question of damages I would refer to the dictum of Martyn, B. in Wilson v. New Dock Company (1866) 1 Exch. 177 "The question of damages is of constant recurrence. It occurs in almost every action of contract except contracts for payment of a certain fixed sum of money and necessarily in every action for a wrong... the rule is that the damage must be proximate (not immediate) and fairly and reasonably connected with the breach of contract or wrong".

In *The Argentino* (1888) 13 P. D. 191 Bowen, L. J., said "Speaking generally" as to all wrongful acts whatever arising out of tort or breach of contract, the English law only adopts the principle of restitutio in integrum, etc."

In my opinion the plaintiff besides the actual expenses incurred as a result of the owner-driver's breach of contract is entitled to damages in respect of pain and suffering, loss of earning capacity, and general incapacity, and that these may be said fairly and reasonably to arise naturally from the breach of contract.

I am of opinion that the cost of the plaintiff's journey to India and his sojourn there is too remote and does not come within the above-quoted principle-I therefore exclude that part of the claim.

The only evidence I have as to medical expenses puts the figure at Sh. 1,200 and I allow that amount.

Damages for pain and suffering—loss of earning capacity—general incapacity and loss of expectation of life are difficult of assessment but in view of the medical evidence and the percentage of incapacity deposed to by Dr. Carothers $\hat{I}$ consider that a sum of Sh. 30,000 is a fair assessment. Were I asked to apportion this amount I would apportion Sh. 25,000 to pain and suffering-permanent partial disability to the extent of 80 per cent and loss of expectation of life and the balance of Sh. 5,000 to loss of business and loss of earning capacity.

There will be judgment for the plaintiff for Sh. 31,200 and costs.

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