MASTER DIVERS (PVT.) LTD., vs. ANUSHA KARUNARATNE AND OTHERS

028-SLLR-SLLR-2010-V-1-MASTER-DIVERS-PVT.-LTD.-vs.-ANUSHA-KARUNARATNE-AND-OTHERS.pdf


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Master Divers (Pvt) Ltd., vs. Anusha Karunaratne and others
403
MASTER DIVERS (PVT.) LTD., VS. ANUSHA KARUNARATNEAND OTHERSCOURT OF APPEALRANJIT SILVA. J.
SALAM. J.
CA 162/04
HC COLOMBO 7/2000(ADMIRALITY)
Admiralty Jurisdiction – Death of employee – Chew agreement,contractual and delictual claims – Misjoinder of causes ofaction – Objection taken for the first time in appeal-Lex acquilia -Dependants – Legal heirs – Difference? – Claim for compensationindependent of contractual obligations – Civil Procedure CodeSection 18, Section 35 – Merchant Shipping Act No. 52 of 71 -Section 127
Plaintiff-respondent (legal heirs of one K) sued the defendant-appellant(owner of vessel) to recover damages arising from a breach of agree-ment and in addition compensation on account of negligence of thedefendant-appellant. The High Court (admiralty) granted the reliefsprayed for by the plaintiff-respondent.
In appeal it was contended by the defendant-appellant that
The High Court could not have entered judgment for compensationboth in delict and under contractual obligation.
That in any event the damages could not have exceeded the amountquantified in the crew agreement.
Held
The crew agreement (X5) binds only the legal heirs of K and notthe dependents who should be treated on a different footing asfar as the claim under lex acquilia is concerned. Even if the legalheirs are estopped from claiming an amount greater than that is
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stipulated under Clause 2 (n) 1 of the crew agreement, yet it cannotadversely affect them as the concept of legal heirs’ and ‘dependants’in law are totally different from each other and governed entirely bydiverse considerations.
Per Abdus Salam. J.
“What is required in an acquilian action is to prove ‘dependency’ orthe state of relying on the deceased for matrimonial support unlikein the case of legal heirs’ who inherit the estate of the deceased asof right under the law, in my opinion the fact that the respondentshave succeeded as the legal heirs’ of the deceased in no way canprevent them from complaining of loss of support”.
Held further:
The stand taken up that there is a misjoinder of causes of actionor misjoinder of plaintiff is untenable in law as these objectionshave not been raised before the commencement of the trial or atleast before judgment. Such a failure would render the proceduraldefects – if any – as being waived or relinquished.
The right to sue in delict is not taken away by contract althoughthe contract by limiting the scope of the delictual duty or waivingthe right to sue in delict may limit or negate the delictual liabilitywhere a wrong prima facie support an action in contract and intort – the party may sue on either or both except where the contractindicates that the parties intended to limit or negative the rightto sue in tort. This limitation of concurrency arises because it isalways open to the party to limit or waive the duties which thecommon law would impose on them for negligence.
Per Abdus Salam, J.
“Careful scrutiny of the relevant clause 2 (n) in X5 reveals that thelump sum promised by the appellant is not arrived at compromis-ing with any delictual claims capable of having been preferred bythe dependents, in any event the dependents were not parties orsignatories to X5 – nowhere in X5 has it been stated that theamount paid should be treated as final and final settlement of allthe claims arising from the death of the employee and that it is. a bar to any delictual claims being made by the dependents, inthe absence of such an exclusionary clause, it is quite unsafe and
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Master Divers (Pvt) Ltd., vs. Artusha Karunaratne and others
(Abdus Salam, J.)
405
absolutely irrational to shut the dependents out from pursuing alegitimate claim in delict”.
A delictual action for compensation includes damage andsatisfaction for non patrimonial loss, whereas satisfaction andcompensation for non contractual damages cannot be claimedex contractu.
Per Abdus Salam, J.
“It must be observed that unlike in English Law, the Roman DutchLaw looks at the acquilian action extended to the dependents ofthe decreed as an independent non derivative remedy, unfetteredby defences vitiating the deceased’s personal right to sue, includingthe contributory negligence”.
APPEAL from the judgment of the High Court (Admiralty jurisdiction)
of Colombo.
Cases referred to:-
Dingiri Appuamy vs. Talakolawewe Pangananda 67 NLR 89
Adlin Fernando vs. Lionel Fernando – 1995 2 Sri LR 25
Nandakeerthi vs. Karunawathie 2004 – 1 Sri LR – 205
Ndamse vs. University College of Port Hare- 1966 4 SA 137 (e)
Union Government – vs. Lee – 1927 AD 202
Bradbum vs. Great Western Railway – 1874 – LR Ex – 21
Payne vs. Railway Executive – 1952 1 KB 26
Nunan vs. Southern Railway – 1924 – 1 KB 223
In Re vs. Cruz – 10 app. SL 59
Nihal Fernando PC with Ragendra Jayasinghe for appellant
Chandaka Jayasundera with S. A. Belling for respondent.
March 9 2010ABDUS SALAM, J.
The defendant-appellant, Master Divers (Private) Ltd;sometimes referred to by me in this judgment as the
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“appellant”, in its capacity as the owner of the vessel “SilkRoute Supplier III” was sued by the plaintiff-respondents,whom I propose to refer to as the “respondents” in the HighCourt of Colombo (exercising admiralty jurisdiction). The suitwas aimed at the recovery of damages arising from a breachof agreement produced at the trial marked as X5. In thesame suit the respondents preferred an additional claimindependent of the first claim for compensation on accountof the negligence of the appellant, in delict. Hence, the suitconstituted of two causes of action, the former arising on thebreach of an agreement and the latter founded on delictualliability stemming from the negligence of the appellant.
Apparently there is no dispute about the facts. Whenunnecessary details are filtered out, the issue that arises fordetermination would appear to be quite simple and straight-forward. It arises from a crew agreement (X5) entered intobetween the appellant and Capt. Chitralal Janaka Karunaratna(Deceased) who is the ex-husband of the 1st Plaintiff-respondentand father of the 2nd and 3rd plaintiff-respondents. Theagreement X5 had been subscribed to by the deceased as theMaster of Motor Tank “Silk Route Supplier III” and by theappellant as the owner of the vessel.
The agreement X5 had been made under the provisionsof the Merchant Shipping Act No. 52 of 1971 to facilitatethe payment of compensation to the heirs of Capt. JanakaKarunaratna, in the event of his death during the courseof employment. It is common cause that Capt. JanakaKarunaratna came by his death as a result of certain injuriessustained in the course of employment, while “Silk RouteSupplier III” was providing bunkering services to anothervessel, when a securing rope of his vessel snapped and
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Master Divers (Pvt.) Ltd., vs. Anusha Karunaratne and others
(Abdus Salam, J.)
407
struck him on his neck. The tragedy took place on 4 August1999 and Capt. Karuaratna succumbed to his injuries at theNational Hospital of Colombo on 15 August 1999 at the ageof 40. At the time of his death he had served the appellant fora short spell of 2 1/2 months. Although his age at the timeof his death has no relevance to the assessment of damagesunder X5, incontestably his untimely demise is relevant toassess the quantum of damages under the law of delict.
The respondent are the legal heirs of Captain Karunaratnaand by coincidence they were dependant in life on him. Thepresent suit had been filed in the High Court, praying forjudgment against the appellant interalia in a sum of US$62,400/- in terms of clause 2 (n) (i) X5 and a further sum of USdollars 50,000/- being compensation arising from thenegligence of the appellant both claims aggregating to $112400/-. At the conclusion of a contested trial, the learnedHigh Court Judge entered the impugned judgment in favourof the respondents as prayed for in the plaint.
Even though the appellant has set out several groundsof appeal to establish the impropriety of the impugnedjudgment, at the hearing of the appeal, the argument wasconfined mainly to the issue as to whether the amount ofcompensation and damages awarded to the respondentswere excessive and contrary to law. The learned President’sCounsel therefore contended that the High Court could nothave possibly entered judgment for compensation both indelict and under contractual obligation. The other argumentadvanced on behalf of the appellant is that damages in anyevent could not have exceeded the amount quantified in X5.
Admittedly in terms of the agreement entered intobetween the appellant and late captain Janaka Karunaratne,
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in case of the latter’s death occurring in the course ofemployment, the appellant undertook to pay a sumequivalent to the basic payment for 48 months or US$10,000/= or the amount of compensation in terms of theNational law of the flag of the vessel whichever is the highestto the legal heirs (Emphasis added). It is of much significanceto highlight at this stage that X5 contemplates compensationto be awarded to the legal heirs of Capt. Janaka Karunaratnaand certainly not to those who were dependent in life onhim.
There is no controversy that the highest of the threeamounts specified in relevant clause is US dollars 62,400/- orits Sri Lankan rupee equivalent. Learned President’s Counselhas submitted that since the agreement has been enteredinto in terms of the Merchant Shipping Act, the legal respon-sibility specified in the agreement is a statutory liability towhich the appellant and the late Karunaratna have agreedas being the compensation due to the heirs of the latter inthe event of his death. As such, it was contended that therespondents are not entitled in law to ask for a greater sumthan what has been agreed upon by X5.
It was also contended by the appellant that Capt.Karunaratne was the best person to know the quantumof compensation which is sufficient for his family in theevent of his death. Since, the learned President’s Counselclamorously sought to argue that the respondents are notentitled to pull out themselves from clause 2(n) (i) in X5and seek a larger amount of compensation than what isstipulated in clause 2(n) (i) of X5. Therefore, as the appellanthas indirectly conceded the rights of the respondents toreceive the amount due under clause 2 (n) (i) we are now
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Master Divers (Pvt) Ltd., vs. Anusha Karunamtne and others
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called upon to ascertain only the propriety and legality ofthe award made in relation to the alleged delictual liabilityimputed to the appellant.
When X5 is closely scrutinized, it is crystal clear thatclause 2 (n) (i), if at all, binds only the legal heirs of Capt.Karunaratne and indeed not the dependents who shouldbe treated on a different footing, as far as the claim underLex Aquilia is concerned. Therefore, it would be seen thateven if the legal heirs are estopped from claiming an amountgreater than that is stipulated under clause 2 (n) (i), yet itcannot adversely affect them as the concept of “legal heirs” and“dependents” in law are totally different from each other andgoverned entirely by diverse considerations.
Basically, what is required in an aquilian action is toprove “dependency” or “the state of relying on the deceasedfor material support” unlike in the case of “legal heirs” whoinherit the estate of the deceased as of right under the law.In my opinion the fact that the respondents have succeededas the legal heirs of the deceased in no way can prevent themfrom complaining of loss of support.
Therefore the stand taken up by the appellant isuntenable in law, as the mis-joinder of causes of actionor mis-joinder of plaintiff have not been raised before thecommencement of the trial or at least before judgment. Sucha failure would render the procedural defects in the plaintiff’scase (if any), as being waived or relinquished. Moreover, suchan objection cannot in any event be taken for the first time inappeal. The learned Counsel of the respondents has pointedout that the appellant has failed to take up the question ofmis-joinder of causes of action and mis-joinder of plaintiffsin the petition of appeal as ground to avoid the decree.
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In terms of Section 37 of the Civil Procedure Codewhenever in a plaint, by reason of the fact that several causesof action have been united and they cannot therefore beconveniently disposed of in one action, the defendantmay at any time before the hearing, apply for an orderconfining the action to such cause/causes of action asmay be conveniently disposed of in one action.
In the case of Dingiri Appuhamy v. TalakolawewePangananda Therd1] it has been laid down that thereis no provision in the Civil Procedure Code or anyother law requiring an action to be dismissed for a mis-joinderof causes of action. As such, it is rather improper to quashthe decision of the learned High Court judge on the groundof mis-joinder of plaintiffs and/or causes of action withoutthe plaintiffs (plaintiff-respondents in this appeal) beingafforded an opportunity to amend the plaint. As it cannot beconveniently achieved or done at this stage of the case, thecourt has no alternative but to tell that defendants-appellantcannot be heard on that objection at this juncture.
For purpose of completeness, let me refer to thedecision in Adlin Fernando vs. Lionel Femando{2), where on thequestion of joinder of causes of action and parties thiscourt laid down that those provisions of the Civil ProcedureCode relating to them are rules of procedure and notsubstantive law.
Needless it is to stress on the approach our Courts whichhad always adopted a common sense approach in decidingquestions of mis-joinder or non-joinder. Section 18 empowersthe courts to strike out the name/names of any partyimproperly joined as plaintiff or defendant on or before the
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hearing, upon application of either party. In terms of Section36 of the Civil Procedure Code provisions have been madefor the conduct of separate trials of any causes of action, ifit is impracticable to conveniently tiy and dispose of themtogether. This can be achieved on the application of thedefendant with notice to the plaintiff or even ex mero motu.
The learned counsel of the respondents has pointedout that the appellant has failed to take up the question ofmis-joinder of causes of action and mis-joinder of plaintiffsin the petition of appeal as ground to avoid the decree.Apparently, the question of mis-joinder of both categorieshad not been raised before the commencement of the trialor at least before the pronouncement of the judgment. Theappellant has not even raised it in its petition of appeal.This trite principle requires no citation of furtherauthorities. Therefore, in my opinion such repeated failureson the part of the appellant should necessarily end up inbeing told that the court is obliged in law to deprive theappellant of the opportunity to argue the purported mis-joinderas ground of appeal at this late stage.
The appellant asserted that deceased Karunaratna wasthe best person to determine the quantum of compensationwhich is sufficient for his family in the event of his death.On the strength of the submission, the learned president’scounsel invited us to hold that the respondents are notentitled to maintain the action for damages arising fromthe alleged delictual liability. To put it in a different formit was contended that the respondent having chosen to suein terms of the crew agreement, cannot now seek to take upthe position that they are not bound by clause 2 (n) (i) of thewritten agreement. This argument advanced on behalf of the
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appellant appears to me as utterly ludicrous and capable ofrendering the basis of delictual liability totally irrational andabsolutely meaningless. The effect of the submission of thelearned President’s Counsel on the disputed question wouldbe dealt in detail at a different place in this judgment.
It must be borne in mind that the crew agreement inquestion contemplates on the payment of compensation tothe legal heirs of the deceased whereas in an action underlex aquilia the heirs who succeed to the estate of the deceasedare given no prominence at all but on the contrary, it is thedependents, who are given the pride of place. It is one of thefundamental requirements that under lex acquilia the plaintiffmust show dependence on the deceased.
In the case of Nandakeerthi vs. KarunawathieP1 itwas held that under lex aquilia where the right to sue forcompensation depends on the facts of the plaintiff beingentitled to seek compensation for the wrong done and not forloss of any inheritance; such a right depends on the fact ofthe plaintiff being dependent of the deceased, where deathdeprived her of such dependence, and is not a right acquiredby reason of inheritance or deprivation of the right to dependas an heir of the deceased.
As far as P5 is concerned the respondents have preferredthe claim for a liquidated sum of money under the lawgoverning contracts. In contrast the additional claim of US$50,000/-, rightly preferred by the respondents, is for loss ofsupport arising from the demise of Capt. Janaka Karunaratna.This claim has been preferred in their capacity as thedependents of the diseased and is well recognized under lexaquilia. In the circumstances, the main question that arisesfor consideration in this appeal is whether the respondents
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are entitled to maintain a claim for damages in a sum ofUS$ 50,000/- being the loss and damage caused to therespondents as a result of the death of Capt Karunaratne onthe basis that he came by his death due to the negligence ofthe appellant. The position of the appellant is that when therespondents elect to claim compensation specified in Clause2 (n)(i), they are estopped by law from ignoring the provisionsof the contract and claiming a wider liability in delict. In thisregard the learned President’s Counsel has adverted us to thevarious opinions expressed by several jurists some of whichare reproduced below for purpose of ready reference.
“If the Defendants liability is limited by a contract,the plaintiff cannot, of course, disregard the con-tract and evade any limitation of liability under it byframing his action in delict.”
The Law of Delict – R. G. Mckerron 6 Edition Page
“The same act or omission may be both a breach ofcontract and a delict; and, in such cases, the per-son injured, if a party to the contract, may sue eitherin contract or in delict. But where a defendant isprotected against liability for negligence by a contractto which the Plaintiff is a party, it is not open to thePlaintiff to ignore the contract but and allege a widerliability in delict.”
“The South African Law of Obligations bv R.W. Leeand A.M. Honore” at Page 50 Paragraph 721 underthe heading T)elict and Breach of Contract’
As regards the opinion of R. G. McKerron” 6 Editionpage 3 from The Law of Delict, (supra) it needs to be stated
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that X5 in no way limits the liability of the appellant eitherexpressly or by necessary implication to the sum stipulatedby clause 2(n)(i). On the other hand even if the said clausein X5 is to be construed as an absolute limitation, yet it canonly operate against the legal heirs of Capt. Karunaratnaand not against the dependants who have had access tocourt for redress has been made through a different Channelnamely by means of lex aquillia. Further when one looksat the Crew Agreement, it would be seen that the cause ofaction in terms of clause 2(n)(i) is based on the compensationpayable to the heirs of the employee who dies in the courseof employment and is not based on a finding of fault on thepart of the Owner. As has been suggested by the learnedcounsel for the respondents the compensation under theCrew Agreement would be available to the heirs of thedeceased even in an instance where the deceased had diedin consequence of perils at sea or of an accident between twovessels, which accident could not have been prevented by theAppellant. The only exclusion as set out in the clause itself isthat death should not have been caused due to the officer’sown willful act, default or misbehavior, and X5 does notpreclude the possibility of suing in delict for a given wrong.It also does not expressly absolve the appellant from anydelictual liabilities. As far as the court can see it, the rightto sue in delict is not taken away by contract, although thecontract by limiting the scope of the delictual duty or waivingthe right to sue in delict may limit or negate delictualliability.
It is common knowledge that where a given wrong primafacie supports an action in contract and in tort the partymay sue in either or both except where the contract indicatesthat the parties intended to limit or negative the right to sue
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in tort. This limitation of concurrency arises because it isalways open to the party to limit or waive the duties whichthe common law would impose on them for negligence. Thisprinciple is of great importance in preserving the sphereof individual liberty. Thus, if a person wishes to engage indangerous sports, the person may stipulate in advancethat he or she waives any right of action against the personwho operates the sports facility. Viewed.thus, it would beseen that X5, cannot in anyway stand in the way of therespondents to sue the appellant for negligence.
Section 127 of the Merchant Shipping Act, stipulatesthat the Minister may make such regulations as he considersnecessary or expedient to provide for the conditions ofservice of those serving in Sri Lanka ships or mattersconnected therewith. Section 127(b) and (c) stipulatethat such regulations may provide for the making of andprocedures relating to agreements in writing between eachperson employed in a ship registered in Sri Lanka and theowner or other person so employing him and the engagementof citizens in Sri Lanka as officers and seamen byforeign ships at any port in Sri Lanka.
Acting in terms of the aforementioned Section 127 ofthe Merchant Shipping Act No. 52 of 1971 the Ministerhas made regulations including Regulation 10(2) whichsets out the terms that the agreement should contain,including Regulation 10(2)(j) which states that the agreementshould contain the payment of compensation for personalinjury or death caused by accident arising out and in thecourse of employment. Therefore the Crew Agreementsigned by Capt. Karunaratne has been so signed inaccordance with these Regulations and that Clause 2(n)(i) wasin fact a clause inserted in keeping with Regulation 10(2)(j).
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In any event a careful scrutiny of the relevant clause 2 (n)(i) in X5 reveals that the lump sum promised by the appellantis not aimed at compromising with any delictual claimscapable of being preferred by the dependents. In any eventthe dependents were not parties or signatories to X5. Aboveall nowhere in the document marked X5 has it been statedthat the amount to be paid in terms of clauses 2(n)(i) shouldbe treated as full and final settlement of all the claims arisingfrom the death of the employee and that it is a bar to anydelictual claims being made by the dependants. In theabsence of such an exclusionary clause, it is quite unsafeand absolutely irrational to shut the dependents out frompursuing a legitimate claim in delict.
As has been stated by Mckerron 6th edition at 3, clause2 (n) (i) of X5 does not limit the liability of the defendant bycontract. It is only a payment contemplated on the strengthof certain statutory provisions and in the said clausedependents of the deceased were not in contemplation so asto exclude them from being claimants under law of delict.
The notion of JC Macintosh and Norman Scoble citedby the appellant does not apply to the respondents. Quitesignificantly the opinion of RW Lee and AM Honore at page50 paragraph 721 under the heading “Delict and Breach ofContract” also does not apply or prejudice the claim of therespondents adversely as it has been admittedly stated inthe said treatise that only where the defendant is protectedagainst liability for negligence by a contract to which theplaintiff is a party, would operate against the dependantsso as to prevent them from claiming a wider liability. In theinstant matter the defendant (appellant) is not protectedat all against liability for negligence and at the same time
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the plaintiffs (respondents) were not parties to the contracteither. Therefore the correct view of the disputed questioncan be conveniently looked at, as stated by the jurists in thefollowing language
Quantum of Damages by Kemp and Kemp (2ndEdition, Sweet & Maxwell, 1961) at page 1“In almost all cases if there is a good cause of actionin contract, there will also be a good cause of action in
tort”.
The Law of Delict by R. G. McKerron (Juta & Co. 1977)at page 3“Although a delict must be distinguished from a breachof contract, it is to be observed that the same act oromission may be both a breach of contract and a delict.This is the case where the act or omission constitutesboth the breach of the duty arising out of a contract andthe breach of duty imposed by law independently of thecontract. Thus if a surgeon causes harm to a patientupon whom he operates by negligently leaving a surgicalswab in his body, the patient upon whom he operateshas a cause of action against him both in contract and indelict: in contract, because the surgeon impliedly prom-ised to use due care in the performing the operation; indelict, because every person is under a duty to use carenot to cause physical injuiy to others.”
Visser and Potgieter’s Law of Damages (2nd Edition,Juta & Co. 2008 reprint) at page 293.“A single damage causing event or factual situation maysometimes give rise to different claims for damages and
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satisfaction. These remedies may be similar (for example,delictual actions) or dissimilar (delictual and contrac-tual actions, or delictual a duty to pay damages.) Thesimultaneous presence of claims based upon differentforms of damage (concerning different interest) or havingdifferent objectives can be described as concurrence inthe wide sense. No real theoretical problem arises hereas such claims can co-exist where the various actionsconcerned are directed towards the same objective orperformance while the debtor is obliged to pay damagesonly once”
Visser and Potgieter are of the opinion that concurrencemay occur where conduct constitutes both an injuria anda breach of contract. In the case of Ndamse us. UniversityCollege of Port Haref*] it was held that a wrongful dismissalfrom employment (breach of contract) is not in itself aninjuria, but ‘the manner of a wrongful dismissal mayconstitute an injuria’.
As stated by Visser and Potgieter the aquilian actionand a contractual action for damages concur in a situationwhere breach of contract also causes patrimonial damagein a wrongful and culpable manner and in practice theaquilian action is available alongside the contractual actiononly if the conduct complained of, apart from constitutingbreach of contract also infringes legally recognized interestwhich exists independently of the contract in a wrongful andculpable manner.
As regards the question of choice available to anaggrieved party as between remedies under the law of contractand the law of delict, Visser and Potgieter (at page 299) statesthat it is important to consider certain differences between
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the two kinds of claims. A delictual action for compensationinclude damages and satisfaction for non-patrimonial loss,whereas satisfaction and compensation for non-contractualdamages cannot be claimed ex contractu.
It may be argued that the consent given by the deceasedfor the payment of the sum specified in X5 to the legal heirscould be treated as qualified assumption of risk. In otherwords that the deceased has quantified the damages claim-able, in the event of his death only to- that amount which isspecified in X5. Even if the learned High Court judge hadopted to accept this approach, still the dependents of thedeceased will not be affected by such an approach asthe claim for compensation is quite independent of thecontractual obligation of the appellant.
Finally it must be observed that unlike in English law,the Roman Dutch law looks at the aquilian action extendedto the dependants of the deceased as an independent,non-derivative remedy, unfettered by defences vitiating thedeceased’s personal right to sue, including the contributorynegligence Vide Union Government vs Lee*51.
In the case of Bradbum v. Great Western Railwat/6)(affirmed in the case of Payne v. Railway Executivef7'1 dealingwith a case where the Plaintiff was entitled to a disabilitypension subsequent to personal injuries suffered, it washeld that “The Plaintiff has become entitled to the pension byreason of his naval service, it being one of the benefits suchservice affords. The Pension would have been paid withoutany negligence on the part of the railway’s servants ….the plaintiff does not receive the pension because of the ac-cident but because he has made a contract providing for thecontingency’.
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In the decision reached in Nunan vs. Southern Railwayit was held that where the deceased had by contract agreedwith the Defendant railway Company that the Company’sliability for personal injury should be limited to a certain sumand he was killed by the Company’s negligence, the damagesrecoverable by the dependants were not limited to the agreedsum. In that decision Bankes LJ states at 227 as follows:
“The amount of damages which the dependants mayrecover is compensation properly so called. It may seemstrange that the dependants can recover a much largersum than could have been recovered by the deceased, butit has been held by the House of Lords in the Vera Cru2f9>that the cause of action of the dependants is a new anddistinct cause of action, in respect of which the damagesare estimated on an entirely different basis. ”
For the foregoing reasons, it is my considered view thatthe grounds or objection raised by the appellant againstthe impugned judgment are untenable in law and thereforecannot be endorsed as the correct legal position. Hence, I amcompelled to dismiss the appeal, subject to costs.
W. L. R. SILVA, J. – I agree.Appeal dismissed.