Griffiths v. Kadir & Salimu. Civ. Case 112-D-68; 5/12/69; Saidi J.

Griffiths v. Kadir & Salimu. Civ. Case 112-D-68; 5/12/69; Saidi J.

The action arose out of a car accident which occurred at the junction of Bagamoyo Road and Kaund Drive. The deceased, husband of the first plaintiff and father of the second, third and fourth plaintiffs, was killed. The plaintiffs sued the first defendant, the driver of the lorry involved in the accident, and the second defendant, his employer.

Held: (1) “The death of the deceased was caused by the negligence of the second defendant, and that the deceased did not contribute in any way himself to his death.” (2) [Counsel] contended that out of whatever was allowed by the Court the sum Pension Scheme in respect of the deceased should be deducted. In support of this contention he relied on the English decisions in Smith v. British European Airways Corporation and another (1951) 2 All E.R. 737, and O’Neill v. S.J. Smith & Co. Ltd. and another (1951)2 All E.R. 737, and O’ Neill v.

S.J. Smith & Co. Ltd. and another (1957) 3 All E.R. 255. Two other cases which had been cited by Mr. Reigels were also referred to. These are Bowskill v. Dawson and another (1954) 2 All E. R. 649 and Green v. Russell (1959) 2 All E.R. 529. In the first two cases the court held that the sum payable to the dependants under a pension

scheme was to be taken into account in assessing damages as it was not payable under any contract of insurance or assurance within section 1 of the Fatal Accidents act, but in the last two cases it was held that such sums could not be so considered as the dependants had a right enforceable in equity to the life assurance benefit. The instant case seems to be similar to the last two English cases. The assurance was taken under the E.A.P.T. Retirement Benefits Scheme as shown in the copy of the Rules tendered in court, Exhibit P. 4. The contents of Rules 1, 4 and 10 are relevant and are quoted verbatim.” [The judge then quoted the rules] ….. “It is clear from rules 4 and 10 that the assurance are taken out by the trustee in respect of and for the benefit of the members, i.e., the respective employees, and that in the event of the death of a member the proceeds of the assurance shall be paid by the trustee to the dependants or the personal representative, i.e. the executors or administrators of his estate. Quite clearly the sum of Shs. 135,702/- is exempted by section 7 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance and should there-fore not be taken into account in assessing the damages.”