Personal injuries as referred to section 2 of the Law Reform (Fatal Accident and Miscellaneous Provision) Act[1] [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,
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.
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.
Workers and employee.
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/=
[1] CAP 310 R.E.2002
