Calculating damages in court for loss of life
On June 22, 1993, Richard, 37, died on the spot when the minibus he was travelling in was involved in an accident with a government vehicle on the Jinja-Tororo highway.
On August 22, 1998, James,27, died instantly when the Toyota Carina salon car he was driving had a head-on collision with an oncoming Mitsubishi Canter lorry along the Mombasa-Malindi Road in Kenya.
At the time of his death, Richard, a teacher, was earning about Shs64,278 per month. He was a civil servant and was entitled to a pension. He was married and had six children. The widow used to receive Shs60,000 per month from the deceased.
James, on the other hand, was not married.
He was a university graduate employed as a management trainee. His total earnings were Kshs138,800 (about Shs4.5m). This included a basic monthly pay of Kshs81,300, a car benefit of Kshs9,000, a housing benefit of Kshs36,000 and medical insurance. The deceased was on contract for three years.
Civil suits were instituted in respect of these two deaths. Richard’s wife brought the suit as widow and administrator of the estate of her late husband. James’ parents were granted letters of administration of the estate of their son.
Both suits asked for special and general damages in respect of the accidents.
The first case was heard at High Court level and judgment given on October 30, 1995, and this judgment was not contested. The Kenyan case went up to the Court of Appeal and judgment was delivered on July 30, 2004.
Evidence presented before court was to the effect that both deaths occurred as a result of negligent actions. In the Ugandan case, the driver of the minibus was faulted for trying to overtake at a bend and the government vehicle was judged to contribute to the accident by emitting smoke that impaired visibility.
In the Kenyan case, much of the blame for the accident was apportioned to the driver of the Mitsubishi Canter.
Awarding damages
In the Ugandan case, special damages for funeral expenses and loss of personal effects of the deceased during the accident were awarded as these were proved in court. In the Kenyan case, the company that employed James, claimed for and were awarded Kshs390,000 (about Shs12.7m) for loss of the vehicle.
In calculating general damages, court took into account the age of the deceased in both cases and their incomes, the living expenses of the deceased, the degree of dependency and a multiplier factor.
In the Ugandan case, court considered that the deceased was 37 years and that he would have probably continued to support his family for the next 15 years.
Court considered the degree of dependency of the family on the deceased as Shs120,000 per month. The family was therefore awarded general damages of Shs120,000 x 12 months x 15 years and this totaled to Shs21,600,000.
In the Kenyan case, court was told that James had a very promising future with the company he was working for and could easily have reached a very senior position in the company.
The retirement age put to court in this particular case was 65 years and a multiplier of 25 years was suggested by the family’s lawyers.
The defendants’ lawyers suggested a multiplier of 10 years. The trial judge chose the latter, stating that:
“Regarding lost years, there is no guarantee of life for any period. These days’ expectations of life are reduced by many risks now encountered within modern living.
The multiplier proposed of 25 years is quite high and it is my view that for a 27-year-old person, he could have been expected to continue in life for perhaps a further 15 years. Therefore, I find a multiplier of 10 years to be reasonable.”
Court of Appeal position
The Court of Appeal concurred with the trial judge. The judges stated that what is a reasonable multiplier is a question of fact to be determined from the peculiar circumstances of each case. Court also ruled that dependency is also a question of fact.
“The extent to which the family is being supported must depend on the circumstances of each case. To ascertain it, the judge will analyse the available evidence as to how much the deceased earned and how much he spent on his wife and family. There can be no rule or principle of law in such a situation.”
To ascertain the reasonable multiplier in each case, court would have to consider such relevant factors as the income of the deceased, the kind of work the deceased was doing, the prospects of promotion and his expectation of working life.
The Court of Appeal considered a reasonable monthly expense of the deceased as Kshs29,000, inclusive of tax and the loss of earning to the estate in the loss years as Kshs52,300 x 12 x10, which came to Kshs6,276,000 (about Shs205.6m).
The trial judge had awarded the family Kshs3,756,000 (about Shs123m) when he judged the deceased’s monthly living expense to be Kshs50,000.
The Appeal court ruled that this expense was an inordinately high figure and there was no evidence and therefore no justification of this monthly living expense.
