GAFFOR v. WILSON AND ANOTHER

020-SLLR-SLLR-1990-V-1-GAFFOR-v.-WILSON-AND-ANOTHER.pdf


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GAFFOOR
v.WILSON AND ANOTHER
SUPREME COURT.
M. D. H. FERNANDO, J„ A. R. B. AMERASINGHE, J.. and K. M. M. B. KULATUNGE. J.S. C. APPEAL No. 46/87
S.C. (L/A) No. 14/87 C. A. No. 199/72 (F)—D. C. COLOMBO 72752/M.
MARCH 28, 1990.
Delict—Damages lor loss ol financial support-Negligence-Father's interest in physicalfitness and earning capacity of child-Loss of support caused by death of child-PairimonialLoss-Prospective Loss—Assessment of damages.
The plaintiff's son Ziard (eldest of seven children )died as a result of the negligent drivingof a motor vehicle by the defendant's servant on May 27, 1968. Ziard was 24 years old andunmarried at the time of his death. He used to give Rs. 250 a month to his mother theplaintiff towards household expenses. Ziard's father received a salary' of Rs. 1,000 for twoyears after Ziard's death before he retired at the age of 62 years.
Held ;
Ziard's contribution to his mother was not as a result of mere filial affection but out ofa sense of duty.
Prospective support is included in patrimonial loss and if not too conjectural will foundan action provided such support would be rendered in consequence of a duty and not fromfilial affection.
If the plaintiff alleges and proves—
(а)the existence of a relationship from which a duty of support arises. The relation-ship of parent and child is such a relationship Being a Muslim the deceased couldbe expected to have observed the duty imposed by his faith.
(б)a strong possibility of his having become dependent on such support in the nearfuture, and
(c) a strong probability that the child would have been able to afford such support,he will be entitled to damages.
The plaintiff must satisfy the Court that she was in such a state of indigence as to reallyneed financial support of the child. It is not necessary that the plaintiff should prove that shecould not otherwise support herself at all and that she was entirely dependent on the child'sassistance. Despite her husband's comfortable salary, because of her large family she wasin need of support for the purchase of necessaries and Ziard's contribution was forhousehold expenses.
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Although primarily the duty of support falls on the husband, if he is unable to work andis indigent he may himself claim support from a child. Here the deceased was contributingtowards household expenses even at the time when his father was in employment andthere was a strong probability of the mother becoming even more indigent when her hus-band retired.
Despite the lack of actuarial assistance in the assessment of damages, the Court is notabsolved from the duty of assessing damages. The fact that the deceased had goodprospects of attaining a better income will affect the multiplier in the calculation ofdamages.
Cases referred to :
Cape Town Municipality v. Paine 1923 CPD 207, 229
Agidahamy v. Fonseka (1942) 43 NLR 453, 454, 455
Cape ol Good Hope Bank v. Fischer (1886 ) 4 SC 368, 376
Jacobs v. Cape Town Municipality 1935, CPD 474, 479
Edwards v. Hyde 1903 TS 381
Union Government v. Warneke 1911 AD 657
Gillespie v. Toplis 1951 (1)SA 290 (C)
Oslo Land Co. Ltd. v. Union Government 1938 AD 584, 593
Holla v. S. A. Mutual Fire 8 General Insurance Co. Ltd. 1965 (2) SA 944(C) 951, 952
Nkabinde v. SA Motors General Insurance Co. Ltd. 1961 (1) SA 302
Waterson v. Maybery 1934 TPD210
Oosthuizen v. Stanley 1938 AD 322, 328
Anthony and Another v. Cape Town Municipality 1967(4) SALR 445
Shiels v. Cruikshanks (1953) 1 All ER 874 (H. L.)'
Dickson v. National Coal Board 1957 SC 157, 175
Gildenhuys v. Transvaal Hindu Educational Council 1938 WLD 260. 263
Young v. Hutton 1918 WLD 90
Miller v. Miller 1940 CPD 469
In re Knoop 1893 10 SC 198
Graal v. Speedy Transport 1944 TPD 236
Legal Insurance Co. Ltd. v. Botes 1963 (1) SA (AD) 608, 614
Arendse v. Maher 1936 TPD 162, 163, 165
APPEAL from judgment ol the Court of Appeal.
Faiz Mustapha P. C. with Nigel Hatch for Plaintiff-Appellant.
Defendant-Respondents absent and unrepresented.
Cur. adv. vult.
April 16. 1990
AMERASINGHE, J.
In this case the plaintiff claims damages for the loss of financial supportsustained by her in consequence of the death of her son Ziard which wasbrought about by the negligent driving of a motor vehicle by the defendant'sservant on 27th May, 1968.
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The act complained ol is a wrong which is technically known asdamnum injuria datum (See R. G. McKerron, The Law of Delict, 1971,7thEd. at P. 6). This was created by the lex Aquilia which was a plebisciteattributed to various years. Suarez holds that the Aquilian law was passedabout 133 B. C. Mommsen thinks that it was enacted before 76 B. C.Pernice advances very cogent reasons for the contention that this lawwas passed in the year 287 B. C. (See F. P. Van Den Heever AquilianDamages in South African Law Vol. 1 at p. 7 ; F. H. Lawson, Negligencein the Civil Law at P. 4). This ancient Roman statute is the foundation ofour law in regard to damage caused by negligence. (See Cape TownMunicipality v. Paine (1); Agidahamy v. Fonseka (2).
Although at first the law was narrowly construed, the remedy beingavailable only to the owner of damaged property and where there hadbeen physical destruction, and not merely deterioration, the scope of theaction was greatly extended partly by means of actiones utiles andactiones in factum and by the time of Justinian, the net of extendedactions had spread far enough to cover a father's interest in the physicalfitness and earning capacity of his child, even though the father was notthe owner of his son and although there was no rumpere i. e. shatteringor breaking down when the son's earning capacity was reduced by aninjury to his eye. (Digest 9.2.7). Whether Chief Justice de Villiers, claimin Cape of Good Hope Bank v. Fischer (3) that in the time of Voet andMatthaeus “the Aquilian action…was no longer confined to cases ofdamage done to corporeal property, but was extended to every kind ofloss sustained by a person in consequence of the wrongful acts ofanother” is justified or not, it is clear that the scope of the action wasgreatly extended from time to time. However, writers like Voet, Grueberand Monro thought that although a father could recover damages inrespect of the decreased future yield of his son’s industry due to an injuredeye as well as medical expenses, yet the father had no claim if the sondied. True enough the law was originally conceived to provide a remedyin the case of the destruction of property and there was no direct authorityin Roman law for giving the paterfamilias an action for the loss of theservices of a son in case the latter was killed. Noodt Ad Legem AquailiamCap. 2. Opera Ominia -p. 139 states this follows ex mente legis and Voet,9.2.11 follows him without comment.
However, the remedy was extended to give a father an action inrespect of his son's limbs. In principle and according to our notions there
SCGalloor v. Wilson and Another (Amerasinghe, J.)145
is no doubt that today the lex Aquilia has become a general remedy forloss wrongfully caused and includes a claim by a parent for alimenta, thatis, the loss of support, caused by the death of a child. (See Agidahamyv. Fonseka(2) at 455 ; Jacobs v. Cape Town Municipality)).
To become entitled to recover damages on the basis of the lexAquilia, a plaintiff must establish damnum imputable to the defendantwhich constitutes a violation of a legally protected interest pertaining tothe plaintiff.
In the matter before us there was no difficulty which the District Courtand the Court of Appeal had in holding that there was a wrongful act whichwas imputable on account of culpa. The only ground on which both Courtsdenied the plaintiff relief was the failure of the plaintiff to establishdamnum.
Subject to certain exceptions, such as the award of compensation forpain and suffering in an action for personal injuries, a Court would awardcompensation for damnum only where it. is satisfied that there is loss inrespect of property, business or prospective gains capable of pecuniaryassessment. See Grotius Inleiding tot de Hollandsche Rechtsgeleerd-heid 3.34.2; Voet, Commentarius ad Pandectas, 9.2.11; Edwards v.Hyde,(5) Union Government v. Warn eke,{6) Gillespie v. Toplis,(7) OsloLand Co., Ltd. v. Union Government,(8) Hoffa v. S.A. Mutual Fire &General Insurance Co., Ltd.,( 9) In an action for damages based on death,as in the case before us, this means that the plaintiff must establishpatrimonial loss through being deprived of benefits, whether in the formof maintenance or services, which the deceased was under a legal dutyto render. Union Government v. Warneke, (6) Nkabinde v. S.A. Motor &General Insurance Co. Ltd. (10)
Whether there was a legal duty of support and what has to be pleadedand established in a given case in connection with that duty would dependon the circumstances of each case.
The case before us relates to a claim by a parent for the loss ofsupport of a child. In such an instance the plaintiff belongs to a classwhere, on account of the relationship between the plaintiff and thedeceased, the law recognizes a duty of support in case of want (inops).See Agidahamy v. Fonsekaf2) Jacobs v. Cape Town Municipality,(4)(supra) at p. 479.
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After discussing the duty of parents and grandparents to support theirchildren and grandchildren, Voet (op.cit.) 25.3.8 states:
"Contrariwise needy parents also must be maintained by their chil-dren." See also van Leeuwen, Censura Forensis 1.10.4; Waterson v.Maybery{ 11) ; Jacobs v. Cape Town Municipality) (supra) ; Oost-huizenv. Stanley(2). Anthony and Another v. Cape Town Munichpalify(i3).
The inference of a duty of support has been justified on variousgrounds. In one passage (25.3.5) the Digest (25.3.5) explains it on thebasis of equity in the following terms:-
“Where a son has been emancipated before arriving at puberty, hecan be compelled to support his father, if the latter is in poverty; foranyone would say with reason that it is most unjust tor a father toremain in want while his son was in prosperous circumstances."
That filial affection was at the base of the inferred duty of support issuggested by paragraph 15 of Digest 25.3.5 which is as follows:-
“Filial affection requires that parents should be supported by a sonwho is in the military service, provided that he has the means to do so."
In Anthony and Another v. Cape Town Municipaiity{t3) Holmes J.A.said at p. 447;
“According to Voet.. this duty to support arises expietate, out ofthe sense of dutifulness which every child owes his parents."
The moral duty to support one's parents is also a part of our ownoriental traditions. In the Parabhavasutta which was a dialogue betweena deity and Buddha on the things by which a man loses and those bywhich he gains in this world, in response to the question of the Deity toname the fourth loser, Bhagavat replies: "He who being rich does notsupport mother or father who are old or past their youth – that is the causeof loss to the losing man." In the Vasalasutta Bhagavat in his reply toAggikabharadvage's question as to who is an outcast replies: “whoso-ever being rich does not support mother or father when old and past theiryouth, let one know him as an outcast". And in the Dhammikasutta the
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Buddha in discussing what the life of a householder should be says: "Lethim dutifully maintain his parents and practice an honourable trade; thehouseholder who observes this strenuously goes to the gods by the nameSayampabhas.” In the Anugita, which is one of the numerous episodesof the Mahabharata in describing the various actions by which one goingthe round of various births becomes happy, “serving mother and father”is placed immediately before honouring deities and guests. And theGrihya-sutra of Hiranyakesin the student who returns after his educationis told that "he should support his father and mother.”
Was it sufficient for the plaintiff to establish the relationship of parentand child and without more claim that it qualified her for support? In Scotslaw, which the “gladsome light of Roman jurisprudence” illuminated as itdid ourown, the answerwould be in the affirmative and the sole remainingquestion would have been the amount of damages recoverable by themother, for the question of damages there is based on loss and not onneed. See Shiels v. Cruikshanks(t4). As Lord Mackintosh observed inDickson v. National Coal Board (15):
“In my opinion, a relative who has the necessary title, i.e. onebetween whom and the deceased there existed a mutual obligation ofsupport in the case of necessity, can, being within the entitled class,then sue for and recover such pecuniary loss as he may be able toprove to have arisen to him as a direct and natural consequence of thedeceased's death.”
In the South African case of Gildenhuys v. Transvaal Hindu Educa-tional Council (16) Schreiner, J. at p. 263 expressed the view that inactions by minor children and spouses of the deceased, there was "aprima facie duty to support which needs no further allegations" as tomeans while in the case of actions by other dependents “further allega-tions are necessary."
A parent falls under the category of “other dependents”. Thereforeevidence of the relationship which establishes a duty of support from thedeceased in case of necessity will not be sufficient. It must be supple-mented by evidence that the necessity in fact existed. The question ofindigence in such a case goes to the existence of a deceased child's dutyof support without which a dependent parent's action cannot be main-tained.
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The plaintiff must satisfy the Court that he or she was in such a stateof indigence as to reaily need the financial support of the child. The factthat at the time of his death the deceased was supporting his parents expietate will make the plaintiff's task simpler but such payments must bemore than uncalled for, gratuitous gifts freely bestowed without legaljustification. To be legally justifiable, they ought to be a response to a realneed.
The question whether a deceased was making payments in thedischarge of his duty ex pietate in response to a need in any given caseis a factual one. “Each case", to use the words of Holmes, J. A. in Anthonyand Another v. Cape Town Municipality, (supra) at p. 447 (D-E) “mustturn on its own down-to-earth facts, according to the circumstances of theparticular family. "See also per Tindall, J. A. in Oosthuizen v. Stanley 12).
Although the plaintiff did not plead that she was indigent, one of thematters placed in issue in the case by the plaintiff and not objected to bythe defendant was whether “in fact" the plaintiff was “dependent on thesaid Ziard Gaffcor at the time of his death”. And the learned District Judgefound that the plaintiff had "come into Court on the basis that she wasdependent on the deceased at the time of his death and that the deceasedwas actually supporting her", and he had in fact “been giving his mother,the plaintiff, a sum of about Rs. 250 per month towards her householdexpenses."
However the learned District Judge declined to award damages tothe plaintiff.
The learned District Judge said that “a duty is cast upon a son tosupport his parents only when the parents are in such circumstances thatthey cannot support themselves and the son himself is in a position torender assistance to his needy parents.”"! do not think", he went on to say,“that the evidence before me shows that the plaintiff had no other meansof supporting herself and was entirely dependent ora whatever assistancethe deceased was able to give her".
The learned District Judge seemed to be of the view that there wasno necessity because the plaintiff had other means of support and thattherefore there was no duty of support.
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Gaffoor v. Wilson and Another (Amerasinghe, J:)
149
In the case before us the plaintiff had seven children of whom Ziard,who at the time of his death was “about 24 years old", was the eldest.Another son who was at that time 21 years of age and unemployed hadnow obtained employment and was in receipt of a monthly salary of Rs.150/=. The plaintiff's husband was at the time of Ziard’s death inemployment and received a monthly salary of Rs. 1,000/= for two yearsafter Ziard's death when he retired at the age of 62 years.
The learned District Judge said:—
“On the evidence before me it is clear that although the plaintiff hada large family, her husband at that time was in fact drawing what must,having regard to the position in society of the plaintiff and her family,be regarded a comfortable salary: and that the deceased, who at thattime was unmarried had monthly given his mother, the plaintiff, aportion of his own income in order to augment the resources availableto the plaintiff.
Having regard to the principles of law referred to above, it appearsto me that although the plaintiff’s son had been in fact assisting hismother by giving a portion of his income to her monthly, he cannot inthe circumstances of this case, be considered in law, to have done sounder any legal duty which cast upon him the obligation of supportinghis mother. It appears to me that the assistance given by the deceasedhad been so rendered not ‘in consequence of a duty' but from merefilial affection'.
With great respect I am unable to agree that proving necessityrequired evidence that the plaintiff could not otherwise support herselfat all and that she was entirely dependent on the child's assistance. InAgidahamy v. Fonseka (2) (supra) at p. 454 it was observed that theplaintiff's eldest son made some contribution each month. Yet theCourt awarded damages for the loss she had sustained by the deathof another son who, albeit more substantially, contributed towards hermaintenance, in the case before us the learned District Judge foundthat the contribution of the deceased was towards “household ex-penses”. If as we have stated the duty of support arises when a parentis a victim of inopia, then it seems to me, having regard to the meaningof the word, that the plaintiff, despite her husband's “comfortablesalary", was, because of her large family in need of support for the
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purchase of necessaries. Each case must depend on its own peculiarcircumstances, but what a parent is required to show is, in the wordsof Tindall, J. A. in Oosthuizen v. Stanley (12) (supra) at p. 328-is that“considering his or herstation in life, he orshe is in want of what should,considering his or her station in life, be regarded as coming under thehead of necessities”.
As for the explanation that the contribution of the son was an act of‘mere filial affection’, I am inclined to suspect that the learned District' Judge was mislead by the distinction between support rendered inconsequence of a duty'as distinguished from ‘mere filial affection' soughtto be drawn by Mackintosh and Scoble, Negligence in Delict. 1958 4th Ed.p. 215 which the learned District Judge refers to elsewhere.
Mackintosh and Scoble cite Young v. Hutton (17) in support of theirproposition. That case, however, makes no such distinction. In that casea son, returning incapacitated from active service and in need of pecuni-ary assistance from his mother, was awarded damages as patrimonialloss against the defendant who had negligently caused her death.
Filial affection, as we have seen, was one cf the bases upon which theduty of support rests. When a person is said to do something ex pietateor pietas causa it means that he is acting not on account of compulsionbut out of affection and on account of a sense of duty. Pietas in ancientRome denoted dutiful conduct towards the Gods, country, one's parents,relatives and benefactors. That duty is not a contractual obligation or onethat is imposed by law. The formula was commonly used and wellunderstood. Thus when a monument was set up and the words ex pietateor pietas causa were inscribed on it, it meant that the monument waserected not ex testamento, that is because it was required to be erectedin terms of the deceased person's last will but because the person whoput up the monument acted through a sense of duty. (E.g. see J G.Orelli's Inscriptions and Fabretti's Corpus Inscriptionem Italicarum etGlossarium Italicum.)
It has a similar meaning in the law relating to the duty of support. Theduty is an obligation arising as Sutton, J. said in Jacobs v. Cape TownMunicipality (supra) at p. 479 “out of the sense of dutifulness which everychild is presumed to entertain towards its parents." In Agidahamy v.Fonseka (supra) at p.455, De Kretser, J. said that the duty of support
SCGaffoor v. Wilson and Another (Amerasinghe; J.)151
“was not a legal obligation in the sense that it was imposed by the law, butit was a legal obligation inasmuch as it was recognized by the law.”
Mackintosh and Scoble (ibid) say:
“Prospective support is included in patrimonial loss (per Sutton, J.,in Jacobs v. Cape Town Municipality (supra) at 479); so that the proofof the loss of prospective support, if not too conjectural, should besufficient to found the action, provided such support would be ren-dered in consequence of a duty and not from mere filial affection (cf.Young v. Hutton (17) where no support had yet been given). It issubmitted that if the plaintiff alleges and proves (a) the existence of therelationship from which a duty of support arises, (b) a strong possibilityof his having become dependent on such support in the near future,and (c) a strong probability that the child would have been able to atfordsuch support, he will be entitled to damages, though no doubt on arestricted basis. But the best proof of the duty to support will, of course,be that the plaintiff was, before the death of the child, in receipt ofsupport, and was unable to support himself without such assistance.In Jacob's case, where the parents were shown to be unable tosupport themselves, Sutton, J., expressed the view that they wouldhave been entitled to damages without proof of actual support havingbeing rendered them. In this case, however, they had received actualsupport. Waterson v. Mayberry (supra) was followed and applied inOosthuizen v. Stanley, (supra) . Both cases were an exception.”
On the question of prospective support, the learned District Judgestates as follows:
“It is in evidence that the plaintiff's husband was at all times materialto this action employed, and was in receipt of a monthly income of Rs.1,000/= and that he continued to be employed ior about two years evenafter the death of the deceased .and that he had retired only in the year1970 on reaching the age of 62 years."
The learned District Judge goes on to say:
"I do not think that this is a case where the question of prospectivesupport arises for consideration, for at the time of the deceased'sdeath, the plaintiff's husband was in fact, employed and had so
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continued to .be in employment forat'least two years after the death otthe deceased."
After referring to Mackintosh and Scoble, Negligence in Delict 1958,4th ed. 215 – the only authority cited by the learned District Judge insupport of his statement of the law – the Court of Appeal referred toJacobs v. Cape Town Municipality, (supra); R. W. Lee's Introduction toRoman-Dutch Law, 1953, 5th ed. 41 and went on to state as follows:
“This Court is unable to find authority either in Sir Lanka or in SouthAfrica where damages had been awarded for loss of prospective gainin the absence of a duty of support. If the principles just discussed areto be implemented the plaintiff must first establish the duty of careresting on the deceased to support his parents. In the case ofAgidahamyv. Fonseka reported at 43 N.L.R. 453, an orderfor supportof a parent was made in circumstances where she was a widow andthe husband died before the death of the child. That case can bedistinguished as the husband/ father is still alive in the instant case."
With great respect the fact that the father was alive in this case is anunacceptable reason for distinguishing Agidahamy v. Fonseka, for whatis relevant is whether the father provided and was able to continue toprovide sufficiently for his family’s necessaries. Primarily the duty ofsupport falls upon the husband. However, where he is dead or unable toprovide support, that duty falls on other persons. See Miller v. MillerR. W.Lee An Introduction to Roman-Dutch Law, 1953, 5th Ed. at p. 41. Indeeda father, if he is unable to work and is indigent, may himself claim to besupported by a child. (In re Knoop (19) Jacobs v. Cape Town Municipality(supra) Oosthuizen v. Stanley (supra) Graaf v. Speedy Transport (20),Anthony and Another v. Cape Town Municipality (supra).
The Court of Appeal went on to state as follows:
“Mr. Musthapa has urged this Court to consider that the husbandwas nearretiring age and that the deceased being the eldest son wouldprobably have had to support his parents and the rest of the family inthe ordinary course.
We are unable to accept this submission. It could well be that thehusband after retirernent may find other more lucrative employment.
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To come to a view that such things as submitted by appellant’sCounsel are probable would be pure conjecture. There is no evidencebefore this Court to show that the deceased child had a duty ofprospective support towards his parents or other members of , hisfamily.
We therefore uphold the judgment of the Court below and dismissthe appeal. No costs.”
The deceased was contributing towards household expenses even atthe time when his father was in employment and there was a strongprobability of the mother becoming even more indigent when her hus-band retired. The learned District Judge was of the view that the son couldhave been expected to support his mother. He says:
“the plaintiff's son was about 25 years of age and was
unmarried and there was every prospect of his bettering his position.In the circumstances it would be reasonable to infer that the plaintiff'sson would have continued to give his mother the support that he hadbeen rendering at the time of his death for at least another fiveyears"
In the circumstances it is difficult to understand why the learned DistrictJudge found that the question of prospective support did not arise forconsideration. It seems to me that when the plaintiff claimed damages forpatrimonial loss she was more concerned with prospective gains thanwith accrued losses. And it is well-settled law that Patrimonial lossincludes prospective gains. (See Union Government v. Warnecke (supra)Young v. Hutton (supra) Jacobs v. Cape Town Municipality (supra) at p.479. See also the passage in Mackintosh and Scoble cited by the learnedDistrict Judge.)
Moreover the deceased was a Muslim and it is to be expected that hewould have observed the duty imposed on him by his faith and thereforecontinued to provide support. In Mulla’s Principles of Mahomedan Law,1977, 18th Ed. by M. Hidayatullah and Arshad Hidayatullah the duty isstated as follows at p. 385 paragraph 371:
“Maintenance of parents.- (1) Children in easy circumstances arebound to maintain their poor parents although the latter may be ableto earn something for themselves.
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A son though in straitened circumstances is bound to maintainhis mother, if the mother is poor, though she may not be infirm.
A son, who, though poor, is earning something, is bound tosupport his poor father who earns nothing."
The finding of the learned District Judge I have referred to with regardto the expected improvement in the financial circumstances of the de-ceased also disposes of affordability-the third requirement mentioned byMackintosh and Scoble as being necessary for the plaintiff to qualify fordamages..
I turn to the assessment of damages. The plaintiff claimed a sum ofRs. 40,000/=. The learned District Judge held that the plaintiff's claimcould not succeed forthe reasons we have already discussed. However,he went on to say that if his finding was found to be wrong, then thequestion of the quantum of damages would arise, and considering thatthe deceased was 25 years old at the time of his death, that he had everyprospect of bettering his position and that he would continue providingsupport for at least another five years, the learned District Judge was ofthe view that a sum of Rs 10,000 would be reasonable.
No doubt the matters referred to by the learned District Judge wererelevant in arriving at a decision with regard to the assessment ofcompensation. For instance, he seems to have taken into account the factthat the deceased had good prospects of attaining a much better income.
I have taken this into account as affecting the multiplier in the calculationof damages. The age and working life of the deceased-the source of thedependency which (subject to certain exceptions which are not applicablein this case) could not have continued beyond the span of his working life,seems to have been taken into account by the learned District Judge.However, there is nothing to show that he also took into consideration theexpectation of life'of the claimant. According to the evidence she was 38years of age when she lost her son and properly proved Life Tables withthe assistance of an actuary would have been of great assistance to us.However, no actuarial evidence was put before the Court. Although weare not tied down by what Holmes, J. A. in Anthony and Another v. CapeTown Municipality (supra) at p. 451 described as inexorable actuarialcalculations (See also Legal Insurance Co-. Ltd., v. Botes (21) Arendse v.
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Maher{22) we would have liked lo have had such evidence. For althoughthe formulation of a successful claim for prospective damages or therebuttal of an extravagantly large one is never a simple exercise inactuarial mathematics (Cf. R. Howroyd and Florence J. Howroyd, TheAssessment of Compensation for Loss of Support, 1958 LXXV S. A. L. J.65) such evidence would have been invaluable especially in assessinghow much capital should be paid to the plaintiff to enable her to have afixed sum per month for life. The absence of actuarial evidence does notabsolve me from the duty of assessing damages. I must do the best I can.(Cf. Arendse v. Maher{22). With the very scanty material in hand, havingregard to all the circumstances of the case which are in evidence I am ofthe view that the sum of Rs. 40,000/= claimed by the plaintiff is notexcessive.
For the reasons stated above l set aside the judgment appealed fromand order that the defendants – respondents shall pay the plaintiff -appellant an aggregate sum comprising (1) Rs. 40,000/= as damagesand (2) interest on the said sum of Rs. 40,000/= at the rate of twelve percentum per annum from t Oth May, 1970, that is, the date of theinstitutionof the action, to 6th April, 1990, that is, the date of this Order. I also orderthe payment of further interest at fifteen per centum per annum on thesaid aggregate sum from 6th April, 1990, that is, the date of this Order tothe date of payment.
The plaintiff – appellant is entitled to Rs. 2,500/= as costs.
M.D. H. FERNANDO, J. — I agree.
K. M. M. B. KULATUNGE. J. — I agree.
Appeal allowed.
Damages ordered.