Death in Relation to Torts

This action is derivative and would not lie if there was a defense to the action had the deceased lived, if the deceased had agreed not to sue, had been settled (read v great eastern railway corporation) or was statute barred.
The plaintiff’s action is for the loss of their breadwinner and so measurement is based on pecuniary loss to the dependants and not limited by any contract between the deceased and the defendant.

Nunan v southern railway co: John Nunan was a passenger on a train belonging to the defendants, which travelled from Charing Cross to Milton Range Halt. When they arrived at Milton Range Halt, he and other passengers were going across the railway lines in order to leave when, owing to the negligence of the defendants’ servants, they were run into by another train and Nunan and others were killed. At the time of his death, he was being carried under a contract which limited the liability of the defendants to £100. It was held (per Bankes, Scrutton, Atkin LL.JJ) that the important thing under the Fatal Acts was whether he could have sued them had he lived. If he could have then, although by the contract his claim would have been limited to £100, this will not affect his dependants’ action.

This action is to protect purely pecuniary interest and not mental suffering-blake v midland railway corporation.

The widow of Blake who was killed in a railway collision which occurred as a result of the negligence of the defendants. The deceased was a merchant. The trial judge (Parke B), in his direction to the jury, used language which did not clearly indicate that the plaintiff could not recover for mental suffering after the death (they could recover only for pecuniary loss caused by the death). Coleridge J was of the view that, under Lord Campbell’s Acts, the measure of damages was not the loss or suffering of the deceased, but the injury resulting from his death to his family

Funeral expenses may be recovered –section 18(5) of act 176, baaye v prempeh

“Dependant“, in relation to a person whose death is caused by a wrongful act, includes any member of the family of the deceased, and any other person whom he was by reason of adoption under the Adoption Act, 1962 (Act 104) or otherwise obliged to maintain and who suffers loss or mental distress as a result of the death;

“Member of the Family” means when used in relation to a citizen of Ghana anyone of those persons mentioned in the First Schedule according as the family is based on the paternal or maternal system; when used in relation to a person who is not a citizen of Ghana, the wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, grand-daughter, stepson, step-daughter, brother, sister, half-brother or half-sister.

Section 16—Action where Death Caused by Wrongful Act.
Where the death of a person is caused by the fault of another such as would have entitled the party injured, but for his death, to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an action for damages for the benefit of the dependants of the deceased.

The action shall be commenced within three years after the death.

Section 18—Damages.
(1) The damages under section 16 of this Act shall be—
(a) the total of such amounts (if any) as 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) Subject to subsection (2), the total of such amounts (if any) as the court shall consider reasonable compensation for mental distress resulting from the death of such dependants.
(5) In addition, damages may be awarded in respect of expenses actually incurred by the deceased before his death and in respect of funeral and other expenses incurred by the dependants or the personal representative by reason of the wrongful act.
(7) The amount recovered in the action shall, after deducting the costs not recovered from the defendant, be divided among the persons entitled in such shares as the court may have determined.

Prospective loss can be recovered provided that the plaintiff had reasonable expectation of pecuniary benefit from the continuance of life-taff vale railway corporation v jenkin.

Action brought by the respondent on behalf of himself and his wife under the Fatal Accidents Act, 1846 against the appellants for the loss of their daughter, aged 16, who was killed in a railway accident for which appellants were responsible. At the time of her death, the respondent’s daughter was an apprentice dressmaker with two more months to complete her apprenticeship. She was an exceptionally clever girl and there was a good chance of her making substantial earnings on the completion of her apprenticeship. The respondent was a fireman in a colliery company, who suffered from varicose veins and was not in robust health. The wife kept a small green grocer’s shop. it was proved that, at the date of her death, the deceased who lived with her parents was nearing the completion of her apprenticeship as a dressmaker and was likely in the near future to earn remuneration which might quickly have become substantial, then there was evidence of damage which the jury could reasonably rely on.

Prospective loss can be recovered when it is showed that there was a reasonable probability of pecuniary advantage and not a mere speculative possibility of pecuniary benefit- Barnett v cohen.

Assessment of pecuniary loss

Davies v powell duffryn associated, baaye v prempeh -assess dependency in a lump sum and apportion it to the dependants. Action by the widows of two employees of the respondents (Daniels Davies, John Sidney) fatally injured by an explosion in one of the mines of the respondents. They attributed the accident to the breach of statutory duty and negligence on the part of respondents
(a) First is to ascertain amount of wages
(b) Personal and living expenses
A-b=basic figure
Convert the basic figure into a lump sum by taking a certain number of years’ purchase and taxing this lump sum down by having due regards to uncertainties in life

Damages can be recovered for shortened expectation of life and the assessment of damages is for the prospect of a predominantly happy life-ayimavor’s case

Section 20-the court must not take into account these in assessing damages
-Sum payable on the death of the deceased under any contract of insurance
-Pension, gratuity in consequence of the death
-Contributory negligence-section 21, baaye v prempeh

Section 24-the following causes of action die with a torfeasor
-cause of action for breach of promise to marry
-seduction
-inducing one spouse to leave or remain apart from the other
-adultery
-claim for compensation under the Workmen’s Compensation Ordinance