Jana v Malawi Railways Ltd and Stage Coach ( Malawi) Ltd (Civil Cause 285 of 1992) [1992] MWHC 26 (8 January 1992)

J I IN THE HIGH c om~T OF MALAWI PRINCIPAL REGISTRY CIVI L CAUSE NUMBER 285 OF 1992 BETWEEN: SINEFA JA!V\ and PLJ\TNTTFF MAL AWI Rl\ 1LWl\YS LTD . ( Ml\Ll\VJI) STAGE COACH . . . . . . . . . . . . . . . 1ST DP. Pl·:NDl\NT I. TD . . 2ND DF. Pl·:NDJ\NT Coram: D F MWAUNGUI,U, RECISTRl\R Chikopa, Coun se l for U1e Plain tif f Chisanga , Coun~cl for the Defenda n t ORD ER the seco nd This action is brought as a r es ult of the dealh of Enock Jana who was kj l l cd when a bus be lo n g ing to St.age Coach (Malawi) Ltd, a locomot ive train bclon qing to Mali:iwi Railways Limited, the first defendant. the action on b eha lf of hersel f, !;tcf ano Ja n a , the dccc-o sed ' s son , John J a n a , the father and Clise Jana, the moth er, under Jud0mcnt the Statute Law was obtained by consent. . to hc1vc d e termine is h ow much should be the c1ward . ( Mi_scclloneous Provis i o ns) Act . Tbc o nly q u estion the wid ow , brjng s Th e plaintj [f , coll ided with dcfendc1nt , I the 25 years time of death. The a ~ The deceased was The-re is o n e child , StcLwo, plaintiff is twe nty years. Th e deceased ' s mother is 65 years, eleven aged 6 years . T he deceased was a years younger from. Lat er he moved to carpent e r Blantyre. He gave his wife KJ00 . 00 pci r month for the u p k eep in the house. He also gave his mot her KS0 .00 a month . T hese ear nings arc disput.cd by Mr . Ch isanga , counsel for the defendants . His earnings are n ot known. in t he village he c am e than her husband . Mr . Chisanga arcJuc~d that lhe c ,::i urt h as first to dccic'lc the rr0 rj tcd a st.atcmC'nt of law likely income o[ the clccc0scc1 . of Lo r d Wright 1n D,1vies vs . l\ ssoci,1tC'd Powell Du ffryn Co 11 i c rs L t d . ( 1 9 4 2 ) A . C . G O l , i:> L 7 . 1 s the cmo un t of wc1g cs wh i_ch "T h e st.ar t L ng po i nt t h e deceased was ea~ n ing , t .he ascertainm ent of whi c h to some extent mc1y depend on the regularity of hi s cmploym<:'nt . Then there is an c~3tirnc1tc of how much was required or expended for his own per sona l and living expenses . Th e balanre will 2/ ..... - 2 - give a datum or be in t o n um b e r of years' t u rned b,::1 s ic figure a J urnp purchase." sum whi ch will generally taki_ng a rertajn by in tl1aL j udgment . s u bmi. t ted J_s cas _Ler . Mr. Chi sang,7 rourt must mak~ evidence be musl~_ in un derstood tha t no wc1 gc s we r e proved f u rther argu ed t hi s mann er Of co u rse if wages or salar ics Mr. Chisan g a t-l1ii:; cas e . The p laintif f on l y gave evjdc nc e o n what the drcccJscd gave h er fo r upkeep. If the con t ent io n is t h al if w,::1gcs are not established no award sho u ld be ma de t h en I have problems with ,7rc the proved the tas k I do not read in the words of Lord Wright any suggestion that if woges a r c not pr ovrd the court cannot accept evidcnrc of the wife as to how much was L hat~ spent on t h e u pkeep . is a accepting the pl aintiff ' s I t dangerous the approach . plaintiff is on oa t h . The issue is therefore a matter of credibility . A cou r t , cannot throw out testimony inv ariably becaus e of fear oE fabrjcatlon . The opposite party i s given the right to c r oss-exami n e in order to show t hat the witness shou l d not be bel icved or to di srrcdit and contradi rt the the Th e witness. There a re h u sbands who for a 1 1 sorts of re a sons testimony . The onl y way to establish do not revea l earnings to wives . loss of for to prove how mu c h was g i v0n (h ousekeep mcnc-y) and t h e bil l s, if any , running the h ouse that were paid for water , electricity , etc. It would be unconsciona bl e to exp u nge such tc ~-;t i mony because of f e,1 r of fabr i cation . Mr . Ch isangc1 submi I ted t h at in the ab sen,e of look at t h e ave r a g e earnin g of a proof of ear n ings I Malawian a carpe n ter . Th ere arc looked at the proble m as Mr . Chi sang a times whe n suggests. Th ese are cases where there is n o evidence of the loss of depe ndency cann ot be loss of de p endency or ascertaine d authentical l y subs istent farmer who grows his ow n food and once o n occasion s 1ooks for cash to bu y other provisio n s of life ap art from food. In this case , however , t h e decc ased's mother testified to wh at t h ey actually re c eived . They were very good witnesses . Cross - e xamination l e ft them unsc athed . in my view not Their cla im s arc not unreasonable and I inconsiste nt with the returns for an average carpen ter. accept thei r eviden c e . He was not just a n average Ma l awian . I findings of fact on the p l aintiff a nd like for exa mp le, The decease d was , the village . d ependenry however , s h ou l d h ave the is i n a The amount given to th e plainti f f has to b e reduced because Th e amount g i vcn to part of that was u c;cd by the dccc,7 sed . the d ece ased ' s mot her The-re were only t hrce in deceased's h o u sehold. One of them was a ch ild aged 5. Much hou se keep was sp e nt on I would put t h e deceased ' s s h a re a t \ . At KJ OO per month, the the loss of dependency wo uld he K2 , 250 per annum plaintiff the l o:-~s of dependency deceascd's mother a nd fa t her wou 1 d be K60 0 per a nnum . th e plaintiff and h e r husb .:-,nd . a n d child. 1 s stet. for f or Th e 3/ .. - 3 - to c1 nd c h i ld, lh r- p1ainLiff In relation I hav e also to con sider the prospcr·t of rr-morriage of the pl ai ntiff. This i s based o n the derisio n of th€' Fed era l Supr e me Court from i n Bayl i. ss vs . the Hi C. Jh Cot1rt o f Nyasaland an appeal from The deci sio n is binding J en kins (M) 80 9. Jenkins was based on on Bay lis s vs. pr i ncipl es in Eng U s h dee Ts ion s . The exercise cau sr-d mur:h const er n a tion for Jud ges th a t. J ust i cr Phillimorc had tl1is to say in Brickley vs . J oh n All e n & Ford (1967) 2 Q. B. 637: 645: the Hj gh Cour t . (192 3 -61)1 A . L. R "I v e nture judgrs were relieved o [ th e n ee d to cnt[r into this partirular gues s ing game ." s u<Jg cst it i s time to tion 13( S r- 2) of in 197 6 . in tervened to a wido w, in a n action under this Ac t , Par l iame n t the Law Reform Misce llan eous Provi s i o n s Ac t 1971 provi. d es that " i n the assessi ng damag es payable death of her husband there shall not be taken into account the rema rri age of thr widow It does n ot say we ll of us or h er prospects of remarr j age ." l ong abandoned to follow a borrowe d principle which has be e n from where we borrowed it fr o m. the problems same as of our experienced by Engli s h jurists. P arlia ment should a l so interve ne. Th e r e~sons for Se ction 3(2) of t h e En glis h Act were better expressed by the pla intif f ' s lawyer in Th o mpson vs . Pr i ce (197 3 )1 Q. B. 838 , 842. Bore ham Judg e sajd : No doubt, t he in respe ct of juris ts are s ay s " He d oes not dispu te , as I understand it, that the law was as the d e fen d ant c o ntends prior to tho Act of 1971, bu L h e t h at the Act of 1971 has changed a ll that , a nd h e puts his argument thus : the inten t ion of that s ub sectio n is cl ear , and the judge complet ely of the intension is to re li eve a duty of assessi n g a wido w ' s marr ia g e an un pleasa nt duty , it is said and to relieve entirely t h e wid o w f ro m the unpl easa nt experience The of hearing her mar rigage pros pects asse ssed . argum e nt goE's on : to the def e nd a nt's cont e nti o ns , t h at u nple asant duty of the judge a nd un pleasant expe rience for the widow a d e p e nd e nt c-hi ld. will remain wherever there i s It do e s not i n fact occ ur in this case bec ause the pl a intiff h as already remarried ; I do n ot have to assess prospect s ; th e marrjage is an accomplished fa ct . " the court a ccedes prospects - i f If Parliament Wid o ws a nd Judg es sho uld be spared tie peril . intervenes it is imp o rtan t that the , provision shou1o apply to widow and wi dower aljke . Widowers wer e not incluckd in Sectio n 3(2) of the Law Re form Mi sce llaneous Pr ovisions Act 1971. Lord Ju stice Bu c kl ey thought t h i s most call ed for 4/ .... . - 4 - co ns i d e ration by (197 5) 1 Q. B. 790, 8 17). by Ba yliss vs. J e nkin s : taken into acc:o un t . th e English Parliament (Hay vs . Hughes On the law as it i s now I elm bound the prospect of rem a rriag e must be (Oxford) Ltd. the one in Buck l e y vs . John The present situatio n is a kin t o Allen & Ford In that case, --much J ik0 here , the widow was not asked on m,cirr i a ge or prospec t of her long passage about t h e predicament re-marriage. There is a occa s ioned by abs t in enc c the to ask her o n time wh e n S e c Li on j udgm c n t of Judge Phi 11 i more. (M _iscellaneous Provis _ion s ) Ar:t ha d 3(2) of the not b ee n passed issue dec_ided I will make o f remarrying . This goes for the child as well. the Judg e , o n paut to disregard the is s 1e. t is ity of ev i de n cc on Il do lik ewise . ch ance l h dy ' s the Law Re form no deductions t h is i s s u c Even at a for i n the fact lasted up to thE? d e ceas e d' s working life. As for the award for the the d e ceased's parents, I have to t h e assi sta nce wou] d not take into account hav e It can be that the parents, 65 and 76 at the tim e of death a s sum e d wo uld not live up to the time when the deceased, aged 25 at t he ti me of death, would have ceased to work. as paribus , would wane. the deceascd's family gr e w, that assistanc e , ceteris In any eve n t th at the practice of (1978)2 W. L. R. 978, th e House of In Cookson vs. Knowles L o rd s confirmed the Court of Appeal that damag es for lo s s of d e p ende ncy should be made in two parts: from death to the time of trial and loss of d e pend ency fro m the date of trial. Unfortuna te ly, in this case the date of death was not pleaded in the state ment of claim and omitted in th e writ. The plaintiff's e vid e nce suggests 198 9 but the the absence of day evidence of I wi ll Such that my cal culat i o n take will s tart from January 1990. To the 24th of Ma rch 1 992 , this is 15 months. For the fi rs t part the plaint iff and the decea se d's parents get K2,812.50 and K750 resp ec tiv ely. th e dat e 1n fairn ess to the def e ndan t a nd month are not referred to. the last day of the year. In For the second part, how e ver, the multiplier is work ed out ( 1978) 2 from W. L. R. 978, 990 Lord Fras e r sa i d: In Cookson vs. Knowl es the date of death. "But in a fatal acc i dent case the multi plier must be selected once and for all as at th e date of death, b e cause every t hing that might have happened to the d ecease d after that 1 d a te remains u ncert a in . Accordingly h a ving taken a i multipl ie r of 11 at the date of death and having iused the period of two in respect of the period up to th e trial, and h al f i t is i n my opinion corr e ct to tak e eight and half fo r a period c:tftcr the date of the tr ial". 5/ . ... - 5 - them. the appropriate awar d I award K2,250 to them . tor the parents the correct award is KJ,000. Having awarded For 1<750. 00 for the first part. the plaintiff and her child is the award up to tri al the K38 , 250. 00. After deducting fo r award is KJS,437.50. The widow and child, therefor e, are awarded K38,250.00 a nd the dece a sed's mother and fath er get K3,000.00 for both of The widow's and son ' s share will be divided as to K24,945.65 to the widow and KlJ, 304.35 Th is is because the father would be legally to the son. bound to maintain the son up the next sixteen years after death. The wife's dependancy would have lasted up to the remaining thirty ye~· rs of the dec eased' s In any case it can be properly; assumed that working life. :~p thd:J!_* oung er_ years. the mother wo~ ~dj j look after the chilct She does not HaJ~ to draw the money t ~t hat f been given to the child. Mor eover , a widow lo se s more dependancy from the death of a husband b e cause children grow out of famil y and have their own families. The child's share should be paid into court fo r The widow remains. investment. the age of 21, t o Made in Chambers t his 8th day of January, 1992. D F gulu HIGH COURT I I I l I I ) J ' '