IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KOFORIDUA - A.D 2018
EMMANUEL CHARWAY- (Plaintiff/Appellant)
KWAME TWENEBOAH KODUAH AND FRANCIS BOATENG - (Defendants/Respondents)
DATE: 24 TH JULY, 2018
SUIT NO: H1/09/2018
JUDGES: K. A. ACQUAYE JA (PRESIDING), S. K. GYAN JA, M. M. AGYEMANG (MRS.) JA
MR. MOHAMED ALHASSAN FOR PLAINTIFF / APPELLANT
MR. HAMZA ALHASSAN FOR DEFENDANTS / RESPONDENTS
This is an appeal against the quantum of damages awarded by the learned trial judge in a suit instituted in respect of a running down incident[MMA1] . The incident resulted in the death of two persons: one Patience Dede a twenty-seven year old trader of Kukurantumi in the Eastern Region of Ghana, and her two-year old son David Awugya. She was a mother of two and was survived by her eight year old son and two aged parents. The judgment of the High Court, Koforidua, in favour of the plaintiff, was delivered on the 8th day of June, 2017. The court, following the finding of negligence on the part of the defendants proceeded to award damages. The award of damages is the subject of this appeal in which the plaintiff, seeks three reliefs:
An order varying and enhancing damages awarded to the plaintiff/appellant to adequately compensate for the loss of the breadwinner;
An order for special damages to be awarded to the plaintiff for expenses incurred towards the funeral of both his daughter and grandson;
An order of this court, varying and enhancing the costs of GHC1000 awarded to the plaintiff.
The plaintiff/appellant is hereafter referred to alternately as the plaintiff, or the appellant, and the defendants/respondents: as the defendants, or the respondents.
These are the matters antecedent to the instant appeal.
The plaintiff brought suit at the court below seeking against the defendants, general and special damages for negligently causing the deaths of his daughter and grandson: Patience Dede and David Awugya. The plaintiff pleaded and led evidence to show that the deaths of Patience Dede and David Awugya were caused by the second defendant.
It was the case of the plaintiff that while in the course of his employment as commercial driver of the first defendant, the second defendant drove his vehicle so negligently as to knock down Patience Dede and her two year old son David Awugya, pedestrians who were standing on the shoulder of the road at Kukurantumi in the Eastern Region. The act was said to have been in breach of the duty of care he owed to the said road users, The deceased Patience Dede who was unmarried at the time of her death, was said to be the breadwinner of her family, as well as provider for her aged parents.
The plaintiff sought general damages under the said heads of damage:
Compensation for pain and suffering;
Loss of expectation of life;
Loss of consortium;
Loss of prospective earning;
He also sought special damages.
The defendants joined issue with the plaintiff, contending that the second defendant was not negligent in the way he drove his vehicle, but that the deceased caused the incident by running from the middle of the road to the shoulder in order to avoid being run into by the second defendant’s vehicle.
At the close of hearing, the learned trial judge held that negligence was proven against the second defendant, and vicarious liability for the tortious conduct, proven against the first defendant. She then, without indicating how the assessment thereof was done, went ahead to award general damages under the following heads:
Loss of expectation of life: GHC 3,000;
Loss of prospective dependency: GHC 4000
Loss of livelihood (Prospective earning): GHC 5,000
Pain and suffering: (mental distress): GHC 1,000.
The learned trial judge refused the claim for special damages. In this regard, she discountenanced the receipts tendered by the plaintiff for various items, including food and transportation, holding them to be unreliable, and she held that the plaintiff did not prove the amount he spent on funeral expenses.
The court also awarded GHC1,000 costs of suit.
It is against the part of the judgment dealing with the assessment of damages general and special, and costs, that the present appeal has been brought.
The appellant set down four grounds of appeal which we reproduce in extenso:
i. The court erred in its assessment of the damages (due) to the plaintiff/appellant when it failed to apply the procedure of assessing damages as enunciated in Amakom Sawmills v Mansah  1 GLR 368 and Awuku v. Mumuni And Sulemana  70 GMJ 155 CA, both of which were binding on the court;
ii. The award of GHC13,000 as general damages to plaintiff by the court is erroneous and inadequate, thereby causing substantial miscarriage of justice to the plaintiff and other dependants of the late Patience Dede;
iii. The judge erred when she held that the plaintiff was not entitled to special damages for having failed to produce sufficient receipts evidencing all expenditures incurred towards the funeral of the late Patience Dede;
iv. The costs of GHC1000 awarded the plaintiff after a full trial of the matter spanning over one year is woefully inadequate.
This appeal is primarily an appeal against the award of damages for wrongful death. We recognise that the award of damages is an exercise of discretion by the learned trial judge. Thus, determination of this appeal must be with regard to the principles regarding an appeal against the discretion of a trial court: “… the law on the duty of the appellate court to interfere with the exercise of discretion dictates that the appellate court may not substitute its own discretion for that of the trial court. This is because the appeal is not from the discretion of the trial court to the discretion of the appellate court, see: Ballmoos v Mensah [1984-86] 1 GLR 724. Our duty is to interfere with such exercise only where it has been done on “wrong or inadequate materials, if it can be shown that the court acted under a misapprehension of fact in that it gave weight to irrelevant or unproved matters or omitted to take relevant matters into account”, see: Blunt v Blunt  AC517 at 518 HL, approved in Ballmoos v Mensah (supra)” see: Benjamin Nii Ayi Aryee v Minerals Commission  118 G.M.J. 224 CA
In the instant matter, the learned trial judge while holding the appellant entitled to general damages for death, appeared to have awarded the sums on the heads of damage on an arbitrary basis for she did not indicate how she conducted the assessment, an important factor in the award of damages in cases of death arising out of personal injuries. Thus she appeared to have “omitted to take relevant matters into account” in the task.
It is for this reason that this court will examine the evidence, in its duty of rehearing the matter with regard to the award of damages (Rule 8(1) of the Court of Appeal Rules CI 47), and assess damages due to the appellant, on the relevant principles of law.
Death as a cause of action in tort is guided by certain principles set out in the Civil Liability Act of 1963, Act 176. S18 (1) (a) (b) and 18 (5) of the said Act provide for the kind of compensation awardable to dependants of the deceased thus:
“1. (a) the total of the amounts that the Court considers proportionate to the loss resulting from the death to each of the dependants, respectively, for whom or on whose behalf the action is brought, and
(b) … the total of the amounts that the Court shall consider reasonable compensation for mental distress resulting from the death of those dependants.
(5) In addition, damages may be awarded in respect of expenses actually incurred by the deceased before the death and in respect of funeral and any other expenses incurred by the dependants or the personal representative by reason of the wrongful act.”
While the fact of compensation and the rationale thereof is similar to compensation for personal injuries, the calculation of what is due to the dependants of a deceased person whose death was caused by another wrongfully is governed by slightly different principles. This is because while the suit is such as could have been maintained by the deceased had he not died by the wrongful act of the tortfeasor, it is for the loss of pecuniary benefit suffered by persons dependent on the deceased for their survival and care and who have been deprived of such. Thus, the future prospects and actual circumstances of the dependants following the death of the breadwinner, must be taken into account, See: Clerk and Lindsell 18th Ed. 1604, pp 29-83.
It is for this reason that S. 18(7) of the Civil Liability Act provides that the awards aimed at compensating dependants must be such as the court considers proportionate to the loss resulting from the death to each of the dependants. In this regard, the court is empowered to apportion the amounts among the dependants. Thus in assessing damages, the court has to “consider what will happen and what, but for the death of the deceased, would have happened in the future, estimating what are the chances that a particular event will or would have occurred and reflecting those chances in the amount it awards”: see Clerk and Lindsell on Torts, (supra) at 1605 at pp 29-85.
It is for this reason that in the locus classicus: the Ghanaian case of Amakom Sawmill & Co. v Mansah,  1 GLR 368, decided upon the application of the Fatal Accidents Act, 1846, (9 & 10 Vict., c. 93) as amended by the Law Reform (Civil Wrongs) Act 1959, (No. 2 of 1959) the predecessor of our Civil Liability Act 1963, Act 176, a method of calculation which would estimate the earnings of the deceased for the purpose of awarding damages to dependants for their loss, was adopted. The Civil Liability Act (supra) inter alia, provides for compensation for economic loss to dependants of deceased persons whose death was caused by the wrongful act of another. The said method of assessment of damages for loss of dependency due to death, was to arrive at a datum which was multiplied by years of purchase. The datum was arrived at by ascertaining the income of the deceased for a specific period; this would then be projected into the future to take care of the needs of the dependants. This mode of assessment was approved in the recent decision of this court in Awuku v Mumuni and Sulemana  70 GMJ 144.
In the instant matter, the evidence led by the plaintiff was that the deceased Patience Dede was twenty-seven years old and was gainfully employed as a trader. Her earnings were unknown. The plaintiff responded during cross-examination that the deceased Patience Dede fed and took care of the medical bills of his parents. He estimated that she may have used up GHc15 per day. In the absence of evidence regarding her earnings, we would have followed the recent decision of this court in Awuku’s case to base our assessment on the national minimum wage, but for this piece of evidence which provides a useful guide for us.
As was observed in the Amakom Sawmill case, it really is difficult to estimate the income of one not engaged in employment with easily ascertainable income such as salaried employment. We can however estimate the income of the deceased breadwinner, to be a little over the GHC15 which on the evidence of her father, she used on her dependants. The little over must make room for what she spent on herself, as well as school and other bills of her eight year old son since no evidence was led in respect of these. Yet, though no evidence was led regarding the amenities to which the said son was entitled, or had reasonable expectation of entitlement from his mother’s income, we take judicial notice of the fact that as a dependent child, he was entitled to be fed, clothed, and educated through basic school.
We thus estimate the earnings of Patience Dede to be in the region of GHC20 per day. This we will use as our guide in calculating her prospective income, part of which she would have used to take care of her dependants: her aged parents, as well as her eight year old son.
In assessing what is due to these dependants, we will multiply this sum of GHC 20 by thirty (30) days in the month. The resultant figure of GHC 600, we will multiply by 12 months in the year. The resultant figure of GHC7, 200 we will multiply with thirty-three years of purchase. The determination of the years of purchase is with regard to the age of compulsory retirement: sixty years, for persons involved in the public sector.
Patience Dede was at the time of her decease, twenty-seven years old. We consider it a reasonable assumption, that at twenty-seven years of age, she would have continued to earn an income for the next thirty-three years. The multiplication of the datum by thirty-three years’ purchase is the sum of GHC237, 600.
By reason of the uncertainties of life as they affect earning power, and also having regard to the fact that she would have had to use some of her income to maintain herself, we will tax this figure down by one-third, to arrive at the sum of GHC158, 400.
This we award as damages for loss of dependency arising from the loss of prospective earning of Patience Dede.
In accordance with S. 18(7) of the Civil Liability Act (supra), we will award and apportion same to the dependants of Patience Dede in the following manner:
Mother: GHC 29,200
Father: GHC 29,200
Eight year old son: GHC 100,000.
For the loss of expectation of life of both deceased persons, we award GHC10,000: GHC5,000 for each of the deceased persons: for Patience Dede who was in the prime of her life at twenty seven years of age, and for David Awugya who at two years of age, was deprived of the opportunity of growing up to experience life in its fullness.
There being no evidence of pain and suffering to any of the deceased persons who were killed at the spot of the incident, no award will be made for the claim under that head of damage.
Although no evidence was led in respect of mental distress suffered by the plaintiff, for which the learned trial judge awarded GHC1, 000, it is our view that an award for mental distress resulting from the loss of the plaintiff’s daughter and grandson in one day, was justifiable compensation under S. 16 of the Civil Liability Act. We will therefore not disturb it.
With regard to the funeral expenses claimed by the plaintiff, the learned trial judge rightly found that many of the items used for the funeral, including mortuary fees were paid for by the defendants. With that in mind, the receipts tendered by the plaintiff which were admitted as exhibits D, D1, D2, and D3, were discountenanced by the learned trial judge.
D2 and D3 were refused by the learned trial judge for being invoices not receipts, although it was D3 that was styled an invoice. D2 was in fact a receipt.
While we do not agree with the convoluted reasoning of the learned trial judge regarding why she considered receipts which had been admitted in evidence without objection, unreliable, and so rejected them, we note that save for exhibit D, all the receipts recorded expenditure for transportation instead of the food, water and drinks they were offered in proof of. Exhibit D was an invoice, not a receipt. It recorded sums allegedly expended in respect of drinks. Being an invoice with no redeeming feature such as a stamp thereon indicating that payment had been made upon it, it could not be said to be evidence of sums actually expended.
Special damages deal with expenses actually incurred, or monies actually lost; they must be pleaded and strictly proven on the proper standard of the preponderance of the probabilities, see: Delmas Agency Ghana Limited v Food Distributors International Ltd [2007-2008] SCGLR.
If a plaintiff who claims that he has spent money on food and drinks, presents receipts that are not in proof of expenditure on the said items, it matters not that the expense can be demonstrated to be otherwise legitimate.
It is enough that the receipts tendered are not proof of expenses said to have been incurred, for same to be discountenanced.
We are therefore not inclined to set aside the learned trial judge’s finding rejecting the receipts exhibits D series, and a holding that special damages have not been proven.
With regard to the award of costs, we are not persuaded that the award was the wrongful exercise of the learned trial judge’s discretion. The appellant failed to demonstrate that the award was made without consideration of relevant matters, or that it rather took into consideration irrelevant matters, see: Ballmoos v Mensah (supra).
The award of costs is also at the discretion of the court which must exercise such discretion, guided by principles set out in Order 74 Rule 2 of the High Court (Civil Procedure) Rules CI 47. These are:
“(a) The amount of expenses, including travel expenses, reasonably incurred by that party or that party's lawyer or both in relation to the proceedings;
(b) The amount of court fees paid by that party or that party's lawyer in relation to the proceedings;
(c) The length and complexity of the proceedings;
(d) The conduct of the parties and their lawyers during the proceedings; and
(e) Any previous order as to costs made in the proceedings.”
In this regard, if for any reason huge costs were incurred by reason of travel expenses among others, these must be brought by counsel to the attention of the court in its assessment of costs.
In the absence of such guidance regarding peculiar costs incurred, the award of costs by the trial judge must be presumed to have taken all relevant matters into consideration unless there is a contrary indication. We will in these circumstances not disturb the award of costs by the court below.
To recapitulate: general damages for loss of dependency arising from the death of Patience Dede, are awarded in the lump sum of GHC158, 400 apportioned (supra);
Loss of expectancy of life GHC10, 000 (GHC5000 for each deceased person); Award for mental distress: GHC1, 000. Costs of GHC 5000.00 to the appellant.