INTRODUCTION
Personal injuries as referred to section 2 of the Law Reform (Fatal Accident and Miscellaneous Provision) Act[1] include any disease and any impairment of a person’s physical or mental condition and the expression injured shall be construed accordingly. By legal definition is an injury to your body, mind or emotions it’s not an injury to physical property physical injuries cover harm such as broken bones, bruises or any serious injury sustained in an accident it also include the emotion and psychological injury you experienced as a result of trauma sustained through a humiliating or life threatening experience.
A personal injury case arises as the result of someone negligence, if you are a victim of an accidental personal injury caused through the fault of another, that individual or business is legally responsible to pay damages and or compensation[2].
Example of personal injuries cases include car accident, accident in work places medical malpractice, employer termination, defamation, assaults, battery
Compensation for personal injuries
The amount of money that you are entitled to in a personal injuries claim depends on several factors, this may include the type of accident, the nature of your injuries and whether it affect your ability to work. To determine what you claim is worth, you may become informed as to type of damages that you can be compensated; this may include medical care and relate expense, permanent physical disability and loss of family, emotional or psychological damages, damaged property involved in the accident. Example of the cases which show how a person can be compensated in case of injury.
REHANA V. AHMEDABAD MUNICIPAL TRANSPORTATION TRASPPORT SERVICE[3].
the plaintiff who has been injured in an accident was a girl of 16 years of age, the accident was a resulting in permanent incapacity in the form of limp in one of her leg, she was awarded Rs 10,000 under the head personal suffering due to incapacity, a part from that amount spent for medical expense and compensation for the loss in the enjoyment of life by not being able to participate in sport and house hold work.
In the case of UNION OF INDIAN V. SAVITA SHARMA[4] a girl about 18nyears old had been seriously injured when the tempo in which she was traveling was knocked down by a military vehicle, on e of her leg from knee downward was amputed,the court observed that there must have been a great agony after accident, she has to use an artificial leg which needed replacement year after year compensation which she was allowed included Rs 15000 for Permanent disablement and Rs 600 for replacement of art fail leg for 40 years the period of her life expectancy.
FATALACCIDENTS.
The history of fatal accidents falls under Law Reform (Fatal Accidents and Miscellaneous Provisions Ordnance, Cap 360). Generally it covered accidents leading to the death of a person. Before the enactment of this Ordnance on the 13th may 1955, the death of a personal left the dependants in serious sorrow for not only having lost a relative but also for loss of pecuniary advantages. Hence the maxim that goes: action personal is moritur cum persona which means, “A personal right of action dies with the person.” That meant that the personal representatives of the deceased could neither sue nor be sued for any tort or wrong committed by or against the deceased in his lifetime. The argument put toward was that the death of a human being could not be complained of as an injury.
The English Law Reform Commission of 1786 came up with Lord Campbell's Act of 1864. This is the English Fatal Accidents Act of 1846. It was intended to protect the interests of the dependants among the near relatives. Therefore causing death of another person by a wrongful act became an actionable civil wrong. All three countries in East Africa (Tanganyika, Kenya and Uganda) adopted it.
Liability in fatal accident claims
When a person is killed a claim can be brought on behalf of his/her estate or on behalf of their dependents, the person or persons who bring an action are called the claimant or claimants if there is more than one person. And that the deceased would have had an action in negligence on breach of the duty if he had not died.
In the case of GRAY v. BARR[5] it is necessary to prove that the defendants breach caused the death or made a material contribution toward it, if the deceased was contributory negligence then the claim by the estate or dependents can be reduce.
Claims on behalf of the estate.
the estate of the deceased person can recover reasonable funeral expense, any special damages the claimant could have claim, including loss of earning if any, from the date of accident to the date of death, and general damages for pain, suffering, here can only be one action if the administrator or the executor bring an action on behalf of the estate and must bring an action on behalf of the defendants section 4 of the act.
Claims brought by the dependants
Once a fatal accident takes place, section 4 (1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act[6]. The following individuals can claim damages arising out of that event of one's death:
- Dependants of the person whose death has been so caused.
- Executor or administrator suing as legal representative of the members of the deceased’s family.
This means that the above people are the ones who will benefit the damages as compensation for the death caused by a Fatal Accident to the deceased. If there is no executor or administrator or they do not bring a claim within six months of the death a claim can be brought by dependants.
In defining who is a dependant, section 2 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act[7] “means a wife or where the marriage was a polygamous marriage, each of the wives, husband, father, mother, grandfather, grandmother, stepfather, brother, sister, half-brother, half-sister and includes an infant child whom the deceased had accepted as member of his family and every other person who is on the death of the deceased entitled to succeed to his property in accordance with the law of succession applicable to the estate of the deceased, and a person shall be deemed to be the father or mother or son or daughter of the deceased notwithstanding that he or she was related to him illegitimately or in adoption according to law.”
In fatal accident a dependant’s can brought a claim as provided within a statutory by showing that
in every action brought under this provision shall delivered to the defendant or his advocate, together with plaint full particulars of the person or persons for whom and on whose behalf such action is brought and of the nature of the claim in respect of which damages are south to be recovered.as provided under Section 6 of the Law reform (Fatal Accidents and Miscellaneous provisions) act[8] i.e.
They have suffered a financial loss or had a reasonable expectation of benefit. The claimant does not have to prove direct that there is a financial loss, a court can assess the claim on a probability basis by refer the case of
DAVIES v. TAYLOR[9] [1974] AC 207 the plaintiff husband was killed in a road accident caused by the defendants negligence, they were childless she had deserted him for five weeks before his death and thereafter he learned about her adultery with a fellow employee, he tried to effect reconciliation with her but she refused, shortly before his death he had instructed his solicitor to institute divorce proceedings, the plaintiff claimed as widow and administratix of the husband estate.
HELD her claim for dependency failed because a court of first instance found that she had not proved that reconciliation with her husband was more probable than not before his death, to obtain anything under a head of substantial losses of future chance the plaintiff must established that chance ,was substantial if it was, it must evaluated. If it was a mere possibility it must be ignored. Where in civil proceeding the proof is balance of probability.
A dependant can claim if they can show a reasonable expectation of future benefit. By refer to the case WELSH AMBULANCE SERVICE v. WILLIAMS[10]
The dependency is fixed at the moment of death it is what the dependents would probably have received as benefit from the deceased what decision people make afterward is irrelevant.
In addition is that, the many emphasis here is on committing a wrongful act which in turn causes death of a person leaving the dependants helpless at the same time the act should be of that nature that it entitles the deceased or injured a right to claim for damages if he would not have died."If the death of any person is caused by the wrongful act of any person and the wrongful act is such as would, if death had not ensued, have entitled the person injured thereby to maintain an action recover damages in respect thereof the person who would have been liable if death had not ensued shall be liable to an action for damages".
In this case the plaintiffs succeeded in claiming damages in a situation where the deceased (husband and father of the children named) together with three passengers died in a car accident negligently caused by the driver. Thus it should be border in mind that the sole organ to determine these circumstances is the court.
Survival of cause of actions
In survival of cause of action i.e. the dependants it shall not provide apply to cause of action for defamation or seduction or for including one spouse to leave or remain apart from others or to claim for damages on the ground of adultery, and shall not include any exemplary damages, in the case of breach of promise to marry shall be limited to such damages. As provided under section 9 of the law reform (fatal accidents and miscellaneous provisions) ac[11]t.
Joint tortfeasors
Where a person suffer damages as a result of a tort judgement for recover against any tortfeasor is liable in respect of damage shall not bar an action against any other person who would if sued have been liable as a joint tortfeasor in respect of same damage and any tortfeaasor liable in respect of damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damages whether as joint tortfeasor or otherwise for which the contribution is sought as provide under section 10 of Law Reform (Fatal Accidents and Miscellaneous Provision) Act[12].
Contributory negligence
where a person suffer damages as the result of the wrongful act and partially of wrongful act of another person a claim for damage shall not be brought by the person suffer damage but the damages recovered shall be reduced to the claimant to share the responsibility of the damage, provide that it shall not defeat any defence arising from contract and where any person died as the result partly of his own wrongful act and wrongful act of another and if action is brought for the benefit of the estate the damages revocable would be reduced on action brought for the benefit of the dependants as provided under section 11 of the Law Reform ( Fatal Accidents and Miscellaneous Provisions) Act.[13]
Workers and employee.
where an action s brought for recovered damages as provided under worker compensations act in respect of an injury or disease giving rise to a claim for compensation that damages are recoverable independently the employer would have been liable to pay compensation under the act as provided under section 12 of the Law Reform (Fatal Accident and Miscellaneous Provisions) Act[14].
Also in( The Occupational Health and Safety)under s.81 it show the penalty in case of death or injury it state that where any person is killed ,or suffer seriously bodily injury in consequence of the occupier or owner of the factory or work place having contravened any provision of this Act or of any regulation ,rule or order made there under ,occupier or owner of the factory or work place shall without prejudice to any other penalty ,be liable to a fine of not less than ten million shilling or to imprisonment for ten not exceeding to two years or to both such fine and imprisonment
(2) in the case of injury to death ,the occupier or owner shall not be liable to a penalty under this section unless the injury was caused directly by the contravention
(3) the occupier shall not be liable to a penalty under this section if a charge against him under Act in respect of the act or default by which the death or injury was caused has been heard and dismissed before the death or the injury occurred.
Assessment of damages
Age and expectations of working life of the deceased. The court will make references to the letters of appointment found in confidential files of the employees. The court may make references to the birth certificate of the deceased if at all the certificate is available an assistance may be obtained from other records such as baptismal certificate and the like depending on the
The case of RADHAKRISHEN M KHEMENEY v. MRS LACHADA MURLIDHAR[15] in this case the respondent sue the appellants for damages, alleging that the death of the respondent was due to the appellant negligence, the trial judge found the respondent and award general damages Shs. 132,500/=
HELD in considering an award for damages under fatal accident ordinance the court should ascertains age, expectation of working life, wages and expectation of the deceased, would have made available for his dependent from which annual value of the dependency could be calculated having regard to the expectation of earning life of the deceased, widow and children.
Also in the case of CHUNIBAI J. PATEL AND ANOTHER v. P.F.HAYES AND OTHERS[16]
In this case was whether widow subsequent earning to be taken into account, the respondent a widow and her two infant children had been awarded damages in Supreme Court for the death of her husband and for their own injuries arising from motor accident caused by the appellant’s negligence. On appeal against quantum of damages awarded it contended that as a widow had obtain employment after accident her earning should be regarded as direct consequence of the death or in alternative that as an employee in the company of which her husband was only a substantial shareholder her earning should be regarded as profit from the deceased estate to which she has succeed.
HELD earning of the widow were adventurous benefit and were not receivable as a direct or natural consequence of the death.
After ascertaining the age, the figure will be deducted from the retirement age and the difference will be the working life expectation period.
ILLUSTRATION
For instance, A's birth date 1970.while working with C's company on 15/8/1994 met a fatal accident, he A's age by August 1994 was 1994-1970=24 years. Thus A was 24 old at the time he met an accident. The working expectation period of A was 55 years=21.
The net earning power of the deceased (his income less tax) and the age and expectations of life of his dependants, the law assumes the wife (widow) to be totally dependent to the husband and the vice versa. Children are assumed to be dependent to their parents for the when they have the age below 18 years. For example A, as an employee of c earning 25,000 per month on 1/11/1994 met an accident that led to his death, his net earning power is calculated by taking his basic salary 25,000 minus the income tax. The income tax will be determined according to the formula laid down in the book of income tax of that year.
Deductible incidents
The court in assessing damages required in any action of fatal accident bears in mind certain deductible term before reaching the final sum. This include generally accelerated Income of what the deceased left to the beneficiaries such as accelerated pension fund.
Consider the case of Nawoneiwa Demangwa and Others v. Maweta[17]. In this case the plaintiff sued the defendant for damages on behalf of herself and her nine children as dependents of the deceased under section 2 of the law reform (fatal accident and miscellaneous provision) ordinance chapter 360 on the basis of negligence. That the deceased was travelling in a bus on a muram road. While going uphill the driver came upon a stone in the road on his right hand side. The stone was about one foot across and protruded out of the surface. 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 when plunged into the 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 sh.360 per month. He lived with his wife and children in a part of his father's house, which 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 190/=
Conclusion
In a nutshell, personal injuries and fatal accident comprises many things including in circumstances of a negligence of someone and a compensation for a personal injuries and the fatal accident it depend on the many factors such as a type of an accident, nature of injuries to the affected person relating to ability to work also the liability to the fatal accident it may led also a claim from the dependant and it can be more than one person who depend the compensation of someone.
So under the law there some action maintainable when death caused by the wrongful act of another person that is if the death of any person is caused by the wrongful act of any person and the wrongful is such as would ,and if death is ensued have entitled the person injured thereby to maintain an action recover damage in respect thereof the person who would have been liable if death had not ensued shall be liable to an action for damages ,notwithstanding the death of the person injured ,and although the death was caused under such circumstance as would amount in law to a criminal offence.
REFERENCES
BOOKS
- Binamungu law of torts
- Principal of Law of Tort, Fourth Edition. 2002, Vivienne, Harp wood, LLB, Barrister Reader in Law, Cardiff Law school.
- Essential Tort Law, Third Edition, Richard Owen, LLB, LLM Solicitor, Principal lecturer.
Statutes
- The Law Reform (Fatal Accidents and Miscellaneous Provisions) Act Chapter 310 R.E 2002.
Cases
- Nawoneiwa Demangwa and Others v. Maweta [1970] HCD 27
- CHUNIBAI J. PATEL AND ANOTHER v. P.F.HAYES AND OTHERS [1958] EA.
- CHUNIBAI J. PATEL AND ANOTHER v. P.F.HAYES AND OTHERS [1957] EA.
- WELSH AMBULANCE SERVICE v. WILLIAMS [2008] EWCA Civ 8
- WELSH AMBULANCE SERVICE v. WILLIAMS [1976] ALER 273
[1] CAP 310 R.E.2002
[2] Black Law dictionary ten edition 2001.
[3][ 1976 ]A.I.R 37
[4] A.I.R 1979 J & K
[5] [1971] 2 QB 554.
[6] CAP 310 R.E.2002
[7] ibid
[8] Cap 310 R.E 2002.
[9] (1974) AC 207
[10] (2008) EWCA Civil Appeal 8
[11] Cap 310 R.E 2002
[12] Cap 310 R.E 2002
[13] IBID
[14] IBID
[15] (1958) E.A
[16] (1957) E.A
[17] [1970] HCD n 27.
