- Introduction
The loss of a family member due to an accident is a very painful experience but sadly it is not in all cases that financial compensation by way of damages can be obtained by the relatives. Where the deceased is a child or infant, the outcome of litigation can be very unpleasant.
- The case of Jenyo v Akinreti (1990)
2.1 On the 3rd day of July, 1973 at about 11a.m the deceased, a girl aged 5 years old, was standing near the road when the 1st defendant negligently drove a motor lorry, belonging to Nigerian Breweries Plc, along the road and knocked down the deceased. She sustained severe injuries from which she died one week later in hospital. Subsequently, her parents brought a claim for damages under the Fatal Accidents Law and the court awarded the sum of N25,000 as general damages. On appeal, the Court of Appeal reduced the damages to N1,000 only and the aggrieved parents appealed to the Supreme Court.
2.2 The Court addressed the principles of law relating to the assessment of damages under the Fatal Accidents Law. Section 3(1) of the Fatal Accidents Law of Lagos State states that,
“Where after the coming into operation of this law, the death of a person is caused by wrongful act, neglect or default and the wrongful act, neglect or default is such as would, if death had not ensued, have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had also ensued shall be liable to an action for damages notwithstanding the death of the person injured.”
- The Court relied upon the decision in Barnett v Cohen (1921) where the plaintiff commenced legal action under the Fatal Accidents Act in England, as personal representative of his infant son, aged 4 years old at the time, to recover damages for the death of his son caused by the negligence of the defendants. In that case the court said,
“In the present action the plaintiff has not satisfied me that he had a reasonable explanation of pecuniary benefit. His child was under four years old. The boy was subject to all the risks of illness, disease, accident and death. His education and upkeep would have been a substantial burden to the plaintiff for many years if he had lived. He might or might not have turned out a useful young man. He would have earned nothing till about sixteen years of age. He might never have aided his father at all. He might have proved a mere expense. I cannot adequately speculate one way or the other.”
- No compensation or damages
3.1 In Jenyo v Akinreti, the Supreme Court dismissed the appeal of the parents and held that they were not entitled to damages. Wali JSC said,
“In the instant case, the girl whose death was caused by the negligent acts, of the 1st defendant as the agent of the 2nd defendant was about 5 years old. At that age the plaintiffs could not be said to be deriving any benefit from her nor could it be speculated and conjectured that the deceased would live and even if she did live the plaintiff would derive any pecuniary benefits from her. At that tender age the deceased was nothing more than an unavoidable burden and liability to them. The law is still as stated by Viscount Haldane, in Taff Vale Railway v Jenkins that, ‘The basis is not what has been called solatium, that is to say damages given for injured feelings or on the ground of sentiment, but damages based on compensation for a pecuniary loss.”
- The decision of the Supreme Court was delivered in 1990, 17 years after the death of the child, and the parents went home empty handed. The decision was based on sound reasoning and not on sentiment but many will still argue that justice was not served. One argument is that the 5 year old deceased in Jenyo v Akinreti had a right to life and this right was violently cut short by the reckless driver. The legal maxim ubi jus ibi remedium means that where there is a right there is a remedy. In Bello v Att Gen Oyo State (1986), Oputa JSC said, “The maxim is so fundamental to the administration of justice that where there is no remedy provided either by the common law or by statute the courts have been urged to create one.” The driver may have been charged and convicted of manslaughter or causing death by dangerous driving but that would not bring back the dead girl and assuage her parents.
