Zambia Railways Ltd v Nowakowski (Appeal 139 of 2004) [2005] ZMSC 24 (29 November 2005)

THE SUPREME COURT OF ZAMBIA APPEAL NO. 139/2004 HOLDEN AT KABWE (CIVIL JURISDICTION) BETWEEN: ZAMBIA RAILWAYS LIMITED APPELLANT AND JOCHEN ARTHUR ROBERT NOWAKOWSKI (Suing as Administrator of the estate of Rodger Nowakowski) RESPONDENT ! Coram: LEWANIKA, DCJ., CHIBESAKUNDA and CHITENGI, JJS on 22nd November 2004 and 29th November 2005 For the Appellants: Mr. M. A. A. Nsefu, Legal Counsel, Zambia Railways For the Respondent: Mr. A Kasonde of Messrs Kasonde & Co. JUDGMENT Chibesakunda, JS, delivered the Judgment in Court Cases referred to: 1. 2. 3. 4. Shanzi v United Bus Company of Zambia [1977] ZR 397 Miller v Attorney General [1983] ZR 66 Bank Of Zambia v Caroline Anderson and Andrews Anderson [SCZ Judgment No. 13 of 1993] Swiza Laboratories v Mercantile Printers Limited [SCZ Appeal No. 94 of 1996] Laws referred to: 5. 6. 7. Section 2 of the Judgment Act Cap 81 Fatal Accidents Act 1846 to 1908 Law Reform (Miscellaneous Provisions) Act Cap 74 of the Laws of Zambia : J2 : This is an appeal against the assessment of damages by the learned District Registrar in a judgment delivered by Kabalata J (now Acting Judge of the Supreme Court) in favour of the Respondents. The brief facts before Kabalata J were that the Respondents sued the Appellants, claiming damages under the following ,heads:- 1. Fatal Accidents Act (6) for the benefit of the deceased's son Robbert Nowakosko and his father, the Respondent suing as administrator, and the mother; 2. Law Reform (Miscellaneous Provisions) Act (7) for shock, mental distress and anguish for the deceased's father and mother; 3. 4. 5. 6. Damages for shock, pain and suffering of the deceased Damages for loss of expectation of life; Damages per quod consortium et servitium amisit; Interest on the said damages at current bank lending rate from the date of writ to the date of Judgment, thereafter interest shall continue to accrue at 6% per annual till full payment and costs. This claim arose from a fatal accident, which occurred on 14th August 1992 at Kabwe. The deceased RODGER NOWAKOSKI was knocked down at or about 11.40 hours by a motor vehicle, a Toyota Land Cruiser, Registration Number AAH 5208 belonging to the Appellants. The claim was that the accident was caused by the negligent driving of one WILFRED NGULUBE (deceased) an employee of the Appellants. The learned trial Judge agreed with the Respondents and awarded damages as claimed. The matter then went before the learned District Registrar for assessment. The learned District Registrar awarded damages under the FATAL ACCIDENTS ACT (6) and under the LAW REFORM (MISCELLANEOUS PROVISIONS) ACT (7). The Appellants, being dissatisfied with these awards, have come to this court challenging these awards in this appeal. : J3 : There were five (5) grounds of appeal, namely that:- 1. The learned District Registrar erred and misdirected himself in law and fact when he awarded the plaintiff large sums of money in damages based on the exaggerated assumptions of the Plaintiff. 2. The learned District Registrar erred when he assessed the damages based on the assumption that the accident occurred in 2003 when the accident occurred in 1992. 3. The learned District Registrar erred by not giving weight to the following: i) The deceased was wholly dependant on the parents. Up to the time of death the parents were paying fees for his enrolment at the Zambia Railways Limited Training Centre. ii) The Plaintiff did not produce any evidence to show how much money the deceased, who was wholly dependant on the parents, contributed to the family business and where he got the capital to invest in the said businesses. Ill) The Plaintiff did not produce any evidence to show how the death of an unemployed wholly dependant son's death led to the collapse of family businesses. iv) The Plaintiff did not produce any evidence of his dependant's son's marriage and birth of his grand son. 4. The learned District Registrar totally misdirected himself in law and fact when he awarded the Plaintiff K5,060,000.00 damages as funeral expenses without the Plaintiff producing any documentary evidence for all the claims. 5. The learned District Registrar erred by awarding the Plaintiff commercial rates of interest when the damages assessed are in respect of road traffic accident. : J4 : The Appellants argued the five (5) grounds of appeal together. It was argued before us that the learned District Registrar erred and misdirected himself by not utilizing legal principles well established in assessing damages. The Appellants argued that the learned District Registrar failed to consider the following a) that the evidence which was available only established that the deceased was not independent but was heavily under the care of the Respondent and that, although he had a child and he was married, was still living with parents who were still paying'for his school fees. b) that the District Registrar further failed to determine the value of the dependency at stake nor indeed the multiplier, which were crucial to determination of the award but chose to merely rely on wrong case precedents. c) that the learned District Registrar was in error in imposing arbitrary figures in the award as estimates in a matter where no evidence was led touching on the income of the deceased. It was also argued in augmenting the grounds of appeal that the award of K20,000,000.00 under the claim of loss of expectation of life, was inordinately high as the deceased was not settled in life. He was still pursuing a career which had not developed. More or also It was argued that under that head there was no evidence to show that the deceased had enrolled in the Zambia Railways Limited Training Centre. It was further argued that, even the evidence concerning the running of the family businesses, did not establish that he was getting any income from it. The Appellants also submitted that the learned District Registrar erred in awarding damages under the sub claim of pain and suffering to the deceased as according to the evidence the deceased died instantly and thus suffered no pain. : J5 : Mr. Kasonde defended the awards under the LAW REFORM (MISCELLANEOUS PROVISIONS) ACTS (7) and the FATAL ACCIDENTS ACTS (6) and he maintained that the K20 Million award was not excessively high. He referred to the cases of SHANZIv UNITED BUS COMPANY OF ZAMBIA (1) and MILLER v ATTORNEY GENERAL (2). He also defended the awards under the Fatal Accidents Acts. He cited in support the cases of BANK OF ZAMBIA v CAROLINE ANDERSON AND ANDREWS ANDERSON (3) and SWIZA LABORATORIES v MERCANTILE PRINTIERS LIMITED (4). He argued that all these authorities supported the damages, which had been , assessed by the learned District Registrar. He also defended the learned District 1 Registrar's awards for funeral expenses in the sum of K5,000,060.00. In his view, looking at the costs previously awarded in Zambia, K5 Million was a reasonable award under the subhead 'Funeral Expense'. In augmenting his argument he argued that the only evidence which was before the learned District Registrar was the evidence given by the father. That evidence was not shaken in cross-examination when the father said, "the deceased had a child". The court had to accept that and if the Respondents said that his son, the deceased, earned so much from the family business the court had to accept because that was the only story that was before the court, and that that story was unshaken at cross-examination. These were the arguments before us. We have looked at the awards made by the learned District Registrar. This court, in a plethora of authorities, has set guidelines on how the courts should assess claims under both the LAW REFORM (MISCELLANEOUS PROVISIONS ACTS (7) and under FATAL ACCIDENTS ACTS (6). From the authorities we have stated that awards under LAW REFORM I (MISCELLANEOUS PROVISIONS ACTS (7) are awards to the estate of the deceased. : J6 : Considerations such as whether or not the deceased was settled in life are irrelevant. We have also stated that these awards are modest. In a recent case of Betty Kalunga we awarded K5 Million for loss of expectation of life under the LAW REFORM (MISCELLANEOUS PROVISIONS ACTS (7). By parity of reasoning we award K5 Million for loss of expectation of life. We quash the order of K20 Million as being excessively high. Coming to the claims under the FATAL ACCIDENTS ACTS (6), first of all we want to state that the learned District Registrar switched the reasoning in making these awards. The reasons he used in assessing damages under loss of I expectation of life are the reasons he should have used in assessing for loss of ■ dependency under the FATAL ACCIDENTS ACTS (6). Secondly, as already stated in our Judgment, the guidelines are well settled as to how to assess damages claimed under FATAL ACCIDENTS ACTS (6). We have stated that in assessing claims of loss of dependency under FATAL ACCIDENTS ACTS (6) the court has to take into account a number of factors. One such factor is that there is no right of claim on behalf of any relative to the loss of dependency except where such relative establishes some pecuniary loss as a consequence of the demise of the deceased. There is, however, pecuniary loss if the claimant can show some reasonable expectation of pecuniary benefit from the continuance of the deceased's life. Mr. Nsefu has argued that the learned District Registrar was wrong in awarding damages under this claim because there was no evidence to show that the deceased was independent. He has further added that in fact the deceased was wholly dependent on the Respondent although he had son and he was married. : J7 : According to the guidelines, now well established, it is not necessary that benefits should have been coming from the deceased as a matter of right at the time of the death of the deceased for a successful claim of benefits under this head. The central consideration for the court is whether or not there was reasonable expectation of pecuniary benefit from the continuation of the life of « the deceased. For instance, a husband can successfully claim for damages in respect of the death of his wife in respect of loss of pecuniary value for domestic services from such a wife. The courts have accepted that there is no mathematical formula for calculating damages under this head. Also the courts have taken into account other factors such as the possibility of the deceased dying early from other causes other than the accident; or the possibility of the claimant dying before the deceased; or the possibility of the deceased not getting a job or even being promoted. The courts have also taken into account the inflationary trends in the country. The formula which have been used in Zambia in calculating damages under this head, which is not perfect, but respected, has been to take the multiplier, that is the productive years of the deceased left multiplied by the multiplicand i.e. monthly salary of the deceased multiplied by 12 months, less one third of that amount which represents the expenses the deceased would have incurred for his own welfare and the income tax which the deceased would have paid for in any case. The figure resulting from such calculation is the total damages awarded under this head. It is also a well established rule that the amount paid under the claim of loss of expectation of life (K5,000,000.00) has to be deducted from the amount to be paid under loss of dependency. In the case before us, Mr. Nsefu has argued rightly that the learned District Registrar failed to get a multiplicand. We agree with that. What the learned District Registrar should have assessed was a family business income generating levels and get that as a basis of calculating what the deceased would have been : J8 : worth of. Again that needs evidence, which was not adduced before the learned District Registrar. We further hold that the Learned District Registrar failed to even assess the multiplier. Also what the Learned District Registrar should have borne in mind in making an award under this claim is that each dependant must be given a specific amount depending on the degree of dependency. The son, for the deceased, for instance, would haVe more entitlement than the father and mother of the deceased. Because of the approach taken by the Learned District Registrar, we have difficulties in assessing the damages under this claim under the Fatal Accidents Acts. We have to send back the matter to the Learned District Registrar for him to assess the multiplicand and multiplier and for him to take into consideration other factors which we have tabulated in our Judgment supra. Whatever amount the Learned District Registrar will award under the FATAL ACCIDENTS ACTS (5) and the K5 Million we have awarded under the LAW REFORM (MISCELLANEOUS PROVISIONS ACTS (7) will attract interest. Mr. Nsefu attacked the Learned District Registrar's award of interest arguing that the Learned District Registrar awarded commercial rates of interest. We agree that was a misdirection. Under SECTION 2 OF THE JUDGEMENT ACT (5) every Judgement Debt, Order of the High Court or of any Subordinate Court has to carry interest and this interest was not to exceed the current deposit rate from the date of the commencement of the action to the date of the Judgement and thereafter shall be at the current lending rate up to the date of the payment of the debt. The Learned District Registrar is therefore directed to award interest in line with this section. Mr. Nsefu's arguments on this point have merit. Mr. Nsefu has urged us to dismiss the award that the Learned District Registrar awarded for funeral expenses. Under SECTION 3(2) OF THE LAW REFORM (MISCELLANEOUS PROVISIONS) ACTS (7), the court is entitled to award funeral expenses. : J9 : In the case before us, as Mr. Kasonde submitted, that there is evidence from the father of the deceased which was not shaken in cross-examination and therefore was the only evidence before the court. In our view, the Learned District Registrar properly awarded that amount as funeral expense. Mr. Nseful' argument on this point cannot succeed. The appeal therefore is partially successful. We leave costs in the cause. D M Lewanika DEPUTY CHIEF JUSTICE L P Chibesakunda SUPREME COURT JUDGE P Chitengi SUPREME COURT JUDGE