Simba Clothing Factory Ltd & another v Bakshish Kaur Virdee

Court of Appeal for East Africa, Nairobi 19th November 1976

Wambuzi P, Musoke Ag V-P & Miller J

Damages – loss of dependency – inflation – effect of inflation on award

The deceased, aged fifty years, was killed in a car crash in 1972. The respondent, his widow, was awarded damages in 1975 by the trial judge for herself and for the benefit of her five children. The judge assessed the dependency at three-quarters of the deceased’s earnings of £1100 per annum. To this figure he applied a multiplier of eight, yielding a total of £6600. He then added £700 to this figure to take account of the loss in the value of money and the upheaval in the pattern of living of people in the country; but he did not specify the period to which the £700 related, nor how he had arrived at that figure. On the question whether such a figure was properly included in the award of damages,

Held:

That the effect of adding £700 to the quantum of damages was to put the respondent into a better position financially than she would have been had the deceased lived and it should therefore be disallowed. Per curiam. If the Court were considering damages awarded in a case for injuries sustained some years previously, inflationary trends might justify a higher award.

Zarina Akbarali Shariff v Noshir Pirosesha Sethna [1963] EA 239, EACA.

Action

Bakshish Kaur Virdee, the respondent and the widow of Kentar Singh Virdee who was killed in a motor accident, was awarded damages in the High Court (Madan J) on 25th August 1975 (Civil Case No 1855 of 1973) against Simba Clothing Factory Ltd and Satish Jivras Shah, who appealed to the Court of Appeal for East Africa (Civil Appeal No 28 of 1976). The respondent cross-appealed against the award of damages. The facts are stated in the judgment of Wambuzi P.

M da Gama Rose (instructed by Shapley, Bareet & Co) for the Appellants.

SC Gautama and L Gitao (instructed by GS Vohra) for the Respondent.

Sumer Singh Bachu v Nicholas Wainaina Kago Waweru

Court of Appeal, at Nairobi

September 4, 1976

Wambuzi P, Musoke Ag VP & Miller J

Civil Appeal No 14 of 1976

 Negligence - traffic accident - liability for jointly owned motor vehicle - vehicle being driven by one co-owner in his own right for his own purposes - no evidence of partnership between co-owners - whether liability attaches to the other co-owner in absence of evidence of his connection with accident - whether there is a presumption that the co-owner is vicariously liable.

Review - grounds for granting review - error apparent on face of the record - plaintiff’s counsel making statement that no evidence against the defendant - suit against defendant being dismissed - whether counsel’s statement can be a basis for review - Civil Procedure Rules Order XLIV rule 3.

Civil Practice and Procedure - default judgment - formal proof - burden of proof required at formal proof.

A suit was filed against the two defendants for damages arising out of an accident involving a motor vehicle jointly owned by them. The suit proceeded ex parte when the two defendants failed to enter appearance. The defendant who was driving the motor vehicle was found to have been negligent. The suit against the second defendant was dismissed as no evidence was adduced against him. About seven months later, the plaintiff made an application for review of the judgment, on grounds that there was an error on the face of the record. It was argued that the two defendants should have been found jointly liable. The application for review was dismissed. The plaintiff appealed.

Held:

1. At the ex parte hearing, the plaintiff was under a legal duty to prove his case against both defendants. This duty was not discharged against the second defendant.
2. The burden of proof at formal proof is the same as that required in any civil case.
3. The court cannot be expected to act on allegations in the plaint when the evidence adduced indicated clearly that the second defendant was not connected with the accident.
4. The mere fact that the second defendant owned the vehicle jointly with the first defendant did not make him jointly liable for the negligence of the second defendant.
5. One defendant is not necessarily liable for the costs of the other resulting from the use of the vehicle jointly owned. There should be some evidence of a common interest in the user of the vehicle before liability of the one can be attributed to the other.
6. Apart from a statement by the applicant’s counsel that the plaintiff made an error at the trial when he said that there was no evidence against the second defendant, nothing more was adduced for the consideration of the court thus the provisions of Order XLIV rule 3 of the Civil Procedure Rules could not apply.

Appeal dismissed.

Cases

1. Barnard v Sully (1931) 47 TLR 557 Distinguished
2. Hibbs v Ross (1860) 1 QB 534 Distinguished
3. Mohamed Akbar v Williams (1945) 12 EACA 39 Distinguished
4. Hewitt v Bonvin [1940] 1 KB p 188 Distinguished
5. Selle v Associated Motor Boat Company [1968] EA 123 Distinguished
6. Redmond v Griven [1926] KBD Distinguished
7. Jivandas & Co Ltd v Nakadama [1972] EA 489 at 490 Distinguished

Texts

1. E Terell, The Law of Running-Down Cases, Butterworths & Co: London, 3rd Edn (1945) p 127

2. AL Armitage, et al, (Ed), Clerk & Lindsell on Torts, Sweet & Maxwell: London, 13th Edn (1969) paras 216, 254

3. L Bingham, Motor Claims Cases, Butterworths & Co: London, 4th Edn (1960) pp 116, 117 and 118

Statutes

Civil Procedure Rules (Cap 21 Sub Leg) Order IXA rule 8, Order XLIV rule 1, rule 3

Advocates

Mr Gautama & Mr O Kapila for Appellant