Chisholm v East Rand Proprietary Mines,

Ltd
1909 TH 297
Witwatersrand High Court

1909. November 3, 16.

MASON, J.

Flynote

Damages. --- Measure of. --- Death of husband. ---

Negligence. --- Action by widow. --- Chances of
remarriage. --- Right of action by posthumous child.

Headnote

Where a plaintiff aged nineteen, mother of a posthumous

girl child aged four months, lost her husband, aged
twenty-seven, a skipman in a gold mine, through the
negligence of the defendants, Held, she would be
entitled as damages to a sum which would produce
an income sufficient to place her in the same
pecuniary position as if her husband had lived and
there had been more than one child of the
marriage, less an amount for (1) probable earnings
of the plaintiff, (2) contingencies likely to affect the
deceased's person or employment during their joint
lives, and (3) the probability of plaintiff's
remarriage.
The earnings of the deceased at the time of his death
being £250 per annum, their living expenses during his life
£15 per month, and the actuarial estimate of their joint life
from twenty-seven to twenty-eight years, the Court
awarded the plaintiff a sum which, at 6 per cent., would
purchase an annuity equal to £9 per month for the said
period of joint life, namely, £1300, less £400 for the said
contingencies, or £900 in all.

A child en venire sa mère at the death of its father

has an independent right of action for damages in
these circumstances (compare Jameson's Minors v
C.S.A.R. (1008 TS 57-5)); no sum, therefore, allowed the
plaintiff in respect thereof, but in making the deductions
aforesaid the diminution in the plaintiff's earning capacity,
by reason of the maternal care necessary during the
child's earlier years, was taken into consideration.

Case Information

This was an action by a widow for £2500 damages

for the loss of her husband, who had been killed by
the negligence of a fellow-servant in the employ of
the defendants. The defendants admitted liability
to make compensation, but claimed that £500,
which had been tendered, was sufficient.

The facts material hereto were the following: The plaintiff

1909 TH at Page 298

was eighteen and a half years of age, and her husband
twenty-seven at his death. They were married in February,
1909; her husband was killed on the 22nd May, 1909, and
a girl child was born on the 4th July, 1909. The medical
evidence was that the' health of all three was good. At the
time of his death the deceased was employed as a
skipman at the Angelo mine, and was earning 16s. 8d. per
shift. In February he earned £27; in March £13, 10s. (half
month only); in April he was out of work; and payment had
been made for twenty-two shifts at the above rate in May.
Prior to becoming a skipman deceased had been a
stonemason, earning the standard rate of £6 per week
when in employment. There was no promotion from
skipman, but a good man would remain as such for years.
The plaintiff was entirely dependent on the deceased, and
their household expenses had been about £15 per month.
Her father was a miner, and had two other children
besides herself, aged twelve and eight, and her mother
was alive. She (the plaintiff) would have had to work for
her living had her husband died in the ordinary course of
nature. Actuarial evidence was given by Mr. Gemmill, a
Fellow of the London Institute of Actuaries, and actuary to
the Chamber of Mines: The expectation of joint life of two
normally healthy people, wife and man, aged nineteen
and twenty-six respectively was (according to Ogle's
tables) 27 8, but a skipman's life was hazardous, and
should be rated up five years at least. The purchase-price
of an annuity of £100 for a period of 27.8 years reckoning
interest at 6 per cent. was £1230. The period of joint life of
31 years estimated in the case of Waring & Gillow, Ltd., v
Sherborne (1904 TS at p 349), he thought was quite
wrong. As to the chances of remarriage, he thought they
were high in this country for a woman of nineteen. The
records of the Royal Patriotic Fund instituted after the
Crimean War showed that of soldiers' widows of an
average age of twenty-one, 43 per cent. were remarried
within five years, and 68 per cent. in all.

Krause (with him Morris), for the plaintiff: The facts here
are much stronger than in Sherborne's case (1904 TH at p
45; 1904 TS at p 349, 350), and in that case £1600 was
awarded

1909 TH at Page 299

eventually; that is on a basis of £8 per month, though Mrs.

Sherborne was childless. In this case there is a child, to
support whom is a duty now thrown upon the plaintiff.

[MASON, J.: Has not the child an independent right of

action?]

Quaere, where it is not born at the death of the father. As

to the chances of remarriage, the figures given ought not
to be seriously considered.

Ward, K.C. (with him Duncan), for the defendants: The

amount provided by sec. 19 of Act 36 of 1907, namely,
two years' wages, but not exceeding £500, shows the view
of the legislature as to the measure of damages in cases
of this kind.

In Rowley v London and North-Western Railway (L.R. 8 Ex.

221; see per BRETT, L.J., at pp. 230, 231), it was said that
the true measure was "a fair compensation, not damages
to the full extent of a perfect compensation," and that "it
must not be left to the jury to give as damages the utmost
amount which they might think was an equivalent for the
pecuniary mischief done."

Damages in respect of the child cannot in law be added to

the present claim; that is matter for an independent
action. A claim by an infant en ventre sa mère at the time
of the father's death is permitted under Lord Campbell's
Act; see Mayne on Damages, 7th ed. p. 555. But if such a
child has no claim, then clearly no addition may be made
at all. In the next place, the earning capacity of the child
must be considered when of an age. As to the chances of
remarriage, that is a matter of common sense; see
Sherborne's case (supra), at p. 350, though no deduction
was there made, because the court had no basis for
calculation; see also Clair v Port Elizabeth Harbour Board
(5 E.D.C. at pp. 317 et seq.). The chances of remarriage in
the present case are very considerable.

Lastly, there must be taken into consideration the

probability of other children had the deceased lived, and
their effect on the amenities of plaintiff's life after due
allowance has been made for the joys of motherhood and
so on. We suggest an annuity of from £8 to £9 per month,
from which should be deducted

1909 TH at Page 300

£4 to £5 per month for her earning capacity. Taking the

multiplier for an annuity as 12, that gave £720, to which
£60 should be added for the diminution of the plaintiff's
earning capacity during the child's first years; and then
deduct finally a sum for the contingencies above referred
to.

Krause, in reply: See further on the measure of damages,

Maasdorp's Institutes, vol. 4, p. 17; Jameson's Minors v
C.S.A.R. (1908 TS at p 605).

Cur adv. vult.

Postea (November 16): ---

Judgment

MASON, J.: Tire plaintiff claims £2500 as damages for the

death of her husband, who was killed whilst in the employ
of the defendant company. As liability to make
compensation has been admitted, and £500 has been
tendered and has been received oil account, the only
question for decision is what sum should be awarded as
damages. It is admitted that under our law compensation
can only be awarded for the actual pecuniary loss which
the plaintiff has sustained. It is not easy to define even in
a general way, and it is still more difficult to calculate in
any satisfactory way, the proper compensation in such
cases. She is, if complete pecuniary compensation could
be made, entitled to receive such a sum of money as,
together with an amount of labour equivalent to that
required from a wife and mother in her class of life, would
give her for the future a home with the same material
comforts and advantages as she would have enjoyed if her
husband had lived. But this allowance must, of course, be
subject to the many contingencies of life so far as they
can be estimated. The plaintiff's husband, a healthy young
man of twenty-seven years of age, was by trade a mason,
whose standard rate of wages for the full time of forty-
eight hours per week would be £6. In this occupation there
are considerable fluctuations in the demand for labour,
and for this and other reasons his average yearly income
as a mason would probably be substantially less than
£250 a year, even during the prime of life. He was
employed by the defendant company as a skipman at the
time of his

1909 TH at Page 301

death at the rate of 16s. 8d. per shift, a position of

considerable permanency, but without any prospect of
promotion; it may be regarded as worth about £250 a
year. But an income arising out of either of these
occupations is subject to many possibilities of diminution
by reason of a fall in wages or bad trade, or the variations
of mining enterprises or many other conceivable
uncertainties of the future. And apart from any chances
which may befall the business of a man thus earning his
own living, there are the usual accidents of life to be
considered. The plaintiff's husband might fall ill, or meet
with an accident, or even lose the habit of steady work if
he had lived, and the uncertainty of life itself is a
prominent factor in the determination of this question. The
plaintiff is a healthy young woman, eighteen and a half
years old, with a girl child, born in July, 1909, after her
husband's death. She has not been taught any trade, and
has apparently been dependent on her parents and her
husband during her life. One of the first questions
which arises is whether the compensation to be
awarded must include such a provision for the child
as the father would have made for it. That depends,
again, on the further question whether the child has
an independent right of action apart from the
mother against a person responsible for the death
of the father. The case of Jameson's Minors v C.S.A.R.
(1908 TS 575) answers that question affirmatively. The
well-known principle that a posthumous child is to
be considered as born at the death of the father, if
such a fiction will be to its advantage (Voet, 1, 5,
5), places this infant in the sane position as other
children (see also The George and Richard, L.R. 3 A. & E.
460; 24 LT 717). The maternal care which the plaintiff is
entitled to devote to her child will naturally affect her
capacity to work on her own account, particularly in earlier
years, and that is an element to be taken into
consideration. The basis upon which to estimate the
requisite compensation is in this case, it appears to me,
the income likely to give the plaintiff the same pecuniary
position as she would have had if her husband had lived,
and there had been some more children of the marriage. I
hive carefully considered this point, and believe that a
sum of £9 per

1909 TH at Page 302

month would be sufficient for that purpose; but, having

regard to the evidence laid before me, and the inherent
difficulties of the case, I know that such a conclusion must
rest to a considerable extent upon conjecture.

Now, the plaintiff's income, so far as derived from her

husband, would have been limited, of course, to their joint
lives, and, according to the evidence of the actuary, their
joint expectation of life was some twenty-seven to thirty
years, according to the table used. To purchase an annuity
for such a period, with a rate of interest of 6 per cent. per
annum, would cost £12, 3s. for every £1 of income; an
annuity of £9 per month would therefore cost some
£1300. This seems to me a maximum figure for the
compensation to which the plaintiff could Jay claim, and
leaves entirely out of account any sums she could earn by
her own labour and the accidents which might have
affected her husband's person or employment during their
joint lives. It also does not give any effect to the
probability of her remarrying, which her age, the
conditions of the colony and the statistics furnished by the
evidence, meagre as they were, show to be by no means a
negligible contingency. That the various considerations
which I have referred to should weigh with the Court is
shown by the decisions of Waring & Gillow, Ltd., v
Sherborne (1904 TS 340), and of Rowley v London and
North-Western Railway Co. (L.R. 8 Ex. 221). But it is
impossible, in my judgment, to determine by any known
principles what exact proportion of the maximum sum to
which I have referred should be deducted in respect of the
various contingencies which affect the matter at issue. It
must rest with the Court or the jury, as the case may be,
to fix in its discretion a fair and reasonable compensation,
and that I assess at the sum of £900. There will therefore
be judgment for the plaintiff for the balance of £400, and
costs of suit.

Plaintiff's Attorneys: Poore & Roos; Defendants' Attorneys:

Webber & Wentzel.