Nawoneiwa Demangwa & others v. Maweta. Civ. Case 9-T-68; 28/11/69; Platt J.

Nawoneiwa Demangwa & others v. Maweta. Civ. Case 9-T-68; 28/11/69; Platt J.

The plaintiff sued the defendant for damages on behalf of her self and her 9 children as dependants of the deceased under s. 2 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance Cap. 360 on the basis of negligence. The deceased had been traveling in a bus on a murum road. While going up hill the driver came upon a stone in the road on his right-hand side. The stone was about 1 foot across and protruded out of the surface. Between the edge of the road and the stone there was about 10 foot of hard surface. The bus was 5 feet 3 inches in width. The driver swerved to avoid the stone and drove onto the soft shoulder at the side of the road. This proved unable to support the weight of the bus, which then plunged into a ravine, killing the driver and the deceased instantly. The defendant was the owner of the bus and the driver was his servant. The deceased was 39 years old, and was a Divisional Executive Officer, drawing a salary of Shs. 360/- a month. He lived with his wife and children in a part of his father’s house with had been provided for him, together with a shamba of about one and a half acres. The amount spent on the wife and children was about Shs. 190/-.

            Held: (1) I would rely on such authority as THE MERCHANT PRINCE (1892) P. 179, and apply maritime rules to cases of accidents on land. The essence of an inevitable accident is that where the circumstances are such that a prima facie case of negligence is made out against a party, it is for that party to show that the misfortune are occurred by an accident, the cause of which was such, that he could not by any act of his, exercising proper care, caution and skill, have avoided its result. Applying these principles to the facts of the instant case, it is clear that there was no need for the driver to drive off the surface of the road which was prepared for the carriage of vehicles. It is within ordinary experience that the shoulders of roads off the surface proper are not necessarily constructed, and are certainly not guaranteed to be able to carry weight; especially in the case of secondary roads. It is therefore a risk to drive off the surface of the road, especially when there is a ravine adjacent to the road. By exercising ordinary skill in staying upon the surface of the road, the accident need not have occurred. Accordingly I must hold that the river was negligent and that the defendant is liable in damages.” “It was suggested that this family was not entirely dependent upon the deceased. No doubt other members of the deceased’s family are assisting [the deceased’s wife]. That would only be natural after this tragedy, but it does not strike me as suggesting that that was necessary before the deceased’s death. Moreover …., there is no duty to help [her] in her present difficulties. There is no reason to consider that this sort of help is in any real sense a pecuniary benefit arising as a result of the deceased’s death. It must be quite gratuitous depending upon the ability and good-will of the rest of the family. The point was considered in stronger circumstances in JESSI NYOKABU v. PUBLIC TRUSTEE (1965) E.A. 530, the decision being to a like effect.” (3) “Taking the retirement age as 55, there would be a dependency of 16 years, at Shs. 2,280/- a year, giving Shs. 25,080/-,” (4) “The only question concerns the deceased a Provident Fund paid to his brother on the behalf of  the plaintiffs, amounting to Shs. 814/-. I find nothing in section 7 of the Ordinance which permits this sum to be left out of this calculation. It is perhaps high time that the Ordinance was brought up to date, possibly in line with the English 1959 Act, permitting benefits such as this, to be excluded. It is also contended by the defendant that this sum must be deducted. In my opinion, I cannot evade authority in this matter and I therefore deduct Shs. 814/-. (See LORY v. GREAT WESTERN RAILWAY CO. (1942) 1 ALL E. R. 230; SMITH v. BRITISH EUROPEAN AIRWAYS CORPORATION (1951) 2 ALL E. R. 737; O’ NEILL v. S. J. SMITH & CO. LTD. (1957) ALL E. R. 255). The dependency figure is then Shs. 24,266/-. No special damages were claimed.” “There is finally the question of apportionment. Counsel addressed the Court in terms suggestive of a special dependency calculation on the part of the children. It seems that after the Privy Council’s observations in KASSAM v. KAMPALA WATER CO. LTD. (1965) E.A. 587, and the manner in which the calculations were made with the approval in HAYES v. PATEL (1961) E.A. 129 that the general dependency should be assessed in a lump sum according to the working life of the deceased and then divided amongst the dependents according to their legitimate claims. That seemed also to follows from MURLYDHAR v. KAEMANEY (1961) E.R. 547 at page 553. In view of these authorities, the greatest part must go to Nawoneiwa [the wife of the deceased] on the ground that she will have the responsibility of looking after the young children. I apportion Shs. 18,000/- to her. Next, Zacariah, the cripple, stands out above his brothers and sisters; Shs. 3,000/- is awarded to him. Then Shs. 350/- will go to each of the eldest children Jeremiah and Nakundwa. Azza, Issac, Julius, Christen and Nafiwa will have Shs. 475/- each, and the baby Nazail, the balance of Shs. 191/-. There will be judgment for the plaintiffs in these sums as specified above, making the total of Shs. 24,266/-, together with costs and interest as prayed.”