107-NLR-NLR-V-43-AGIDAHAMY-FONSEKA.pdf
DE KRETSER J.—Agidahamy v. Fonseka.
453
1942Present : de Kretser and Cannon JJ.
AGIDAHAMY v. FONSEKA.196—D. C. Colombo. 12,158.
Compensation—Claim for damages by mother—Death of son—Negligence ofdefendant.
A mother, who is maintained by her son, is- entitled to claim damagesfor loss sustained by the death of the son through the negligence ofanother.
^^PPEAL from a judgment of the District Judge of Colombo.
J.E. M. Obeyesekere, for defendant, appellant.
R. C. Fonseka, for plaintiffs, respondents.
Cur. adv. vult.
June 23, 1942. de Kretser J.—
One Peter Perera was killed as a result of the negligence of the driverof an omnibus belonging to the defendant. His mother sued defendantfor damages for compensation and the District Judge awarded her Rs. 600.The defendant appeals and maintains that she has not proved that shehas suffered material loss.
454DE KRETSER J.—Agidahamy v. Fonseka.
It would appear that the plaintiff’s husband owned and managed aboutique. We have no evidence as to the nature of the business orthe date of his death. At his death plaintiff, assisted by her motherand some of her daughters, carried on business in the same place. There-after the deceased son took over the management of the boutique. Weare told that he bought coconuts and firewood and sold it there and thatthere was good profit from the business. He must have had a flair forbusiness, for the evidence is that his brother-in-law, who had a boutiqueat Hulftsdorp, employed him to supervise that boutique and paid himRs. 18 to Rs. 20 a month. That money was devoted by the deceasedto the maintenance of his mother and other members of the household,to whom he also gave all his other earnings. The plaintiff, whom theDistrict Judge describes as an ignorant village woman, and who seemsto have impressed him as being truthful, described the deceased as thebread-winner of the family. Along with her lived her aged mother,two unmarried daughters, a schoolboy about 15 years old and anotheryoungster, who obtained employment as a messenger but did not contri-bute to the family expenses. Her evidence is that her eldest son, wholives elsewhere, used to contribute a rupee or two a month.
After the death of the deceased her eldest son paid the rent of the house,but there is no evidence that he continued to make the original contri-bution nor is there evidence as to what the rent of the house is. Itcannot be much, seeing that it is in a village, and it may be that he hasmerely given his contribution in one form rather than another. It wasurged that as plaintiff’s rent is being paid she has suffered no loss andthat as the boutique is being carried on again she has suffered no loss.There is no evidence that the boutique is being carried on. Plaintiff'sevidence clearly refers to the past, and in particular her reference to hermother helping her makes it obvious that she is not refering to thepresent time because her mother must have passed the stage of renderingassistance, plaintiff herself being sixty' years of age.
It seems to me, therefore, that plaintiff may well have been given somecompensation for the loss she has sustained by the death of her son,who was such a capable manager. But she has given no figures and theDistrict Judge has confined himself merely to the loss of Rs. 18 to Rs. 20a month, which the brother-in-law used to give the deceased for themanagement of his business. That was clearly loss which the plaintiffdid sustain. The District Judge has remembered that this money wentto maintain a number of persons and has worked out what he thinksmight have been plaintiff’s proportionate share and, taking into con-sideration her expectation of life, has awarded her Rs. 600. This seemsto be a reasonable way of awarding damages.
Counsel for the appellant referred us' to certain authorities which I donoc think it necessary to examine in detail. I hope I shall be doingjustice to the extremely able judgments of the South African Courts if Isummarise their conclusions as follows.
The Lex Aquilia of the Roman law applies to loss of property. TheRoman law considered that it was impossible to place a value on the life
DE KRETSER J.—Agidahamy v. Fonseka,455
of a human being. “ Property ” was gradually extended to includeeven the Joss of prospective gain. Roman jurists were continuallyhampered by the conception that life cannot be estimated and thereforethe action was confined to something in the nature of property. TheUuich, however, were accustomed to the Germanic idea of compensationor blood money, which was to be paid to the relatives of the deceasedperson by the wrongdoer. They found no difficulty in extending theaction to cover cases not strictly within the Lex Aquilia and many Dutchjurists, seeking a foundation for the form of action which had come intobeing, put it on tlie basis of an extension or utilis actio of the LexAquilia.
One must remember that the Dutch were very 'particular about formsof action, and so were we in the early part of the last century. But ourpresent code of procedure is based on the desire of the law to do substantialjustice between the parties. The Dutch jurists emphasised the distinctionbetween an action based on injuria and one based on culpa or negligence.In the former, damages may be claimed for injury to feelings ; in thelatter these feelings find no place. Accordingly, in Wamecke’s Case a husband was not allowed to claim damages for the loss of the consortiumof his wife.
The action based on negligence was allowed by the Dutch only to thosewho had a natural claim on the deceased. In Dutch jurisprudence if aperson had a natural claim to be maintained a corresponding duty wasimplied upon the party bound to maintain. It was not a legal obligationin the sense that it was one imposed by the law, but it was a legal obliga-tion inasmuch as it was recognized by the law. As Innes J. remarked,in Wamecke’s Case (supra), “ The books agree in confining the remedy to
certain relatives depending on the deceased for supportThere is no
reason why our courts should not adapt the doctrine and reasoning of the lawto the conditions of modern life, so far as can be done without doingviolence to its principles.” He went on to say that the books do not as arule make special reference to the obligation because the relationship of theparties imposes it and Vinnius gives it to those whom the deceased waswont ex officio to maintain.
Counsel for the appellant did not contest the position that the plaintiffin this case was within the class of persons whom the deceased was boundto maintain.f
The subject is further discussed in Lee’s Case A stepmother was notallowed the right to claim compensation, on the ground that there was nonatural obligation between her and the stepson. Maasdorp—volume IV,pp. 23 and 35—sums up the law and says that a deceased’s wife andchildren, whether legitimate or illegitimate, or any other person who hasa legal claim to maintenance against the injured person, or one who hassuffered any other loss through the death of such person, will have anaction for damages. -He seems to imply that there may be a class of 1
1 .S'. A. B. Appeal Division (1911), p 657.
9 S. A. Ls B. Cape Division (1935), p 202.
456
DE KRETSER J.—Aqidahamy v. Fonseka.
persons entitled to sue other than those entitled to maintenance but whohave actually suffered loss, i.e., suffered in property through the death ofthe deceased.
It has not been shown to us that the decree in this case is erroneousThe appeal will, therefore, be dismissed with costs.
Cannon J.—I agree.
Appeal dismissed.