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Bluebook 21st ed.

Charles Manga Fombad, Archibald v. Attorney-General in Perspective: The Role of
Actuarial Evidence in the Assessment of the Dependents' Damages for Loss of Support
in Botswana, 11 AFR. J. INT'l & COMP. L. 245 (1999).

ALWD 7th ed.

Charles Manga Fombad, Archibald v. Attorney-General in Perspective: The Role of
Actuarial Evidence in the Assessment of the Dependents' Damages for Loss of Support
in Botswana, 11 Afr. J. Int'l & Comp. L. 245 (1999).

APA 7th ed.

Fombad, C. (1999). Archibald v. Attorney-General in Perspective: The Role of
Actuarial Evidence in the Assessment of the Dependents' Damages for Loss of Support
in Botswana. African Journal of International and Comparative Law, 11(2), 245-261.

Chicago 17th ed.

Charles Manga Fombad, "Archibald v. Attorney-General in Perspective: The Role of
Actuarial Evidence in the Assessment of the Dependents' Damages for Loss of Support
in Botswana," African Journal of International and Comparative Law 11, no. 2 (1999):
245-261

McGill Guide 9th ed.

Charles Manga Fombad, "Archibald v. Attorney-General in Perspective: The Role of
Actuarial Evidence in the Assessment of the Dependents' Damages for Loss of Support
in Botswana" (1999) 11:2 Afr J Int'l & Comp L 245.

AGLC 4th ed.

Charles Manga Fombad, 'Archibald v. Attorney-General in Perspective: The Role of
Actuarial Evidence in the Assessment of the Dependents' Damages for Loss of Support
in Botswana' (1999) 11 African Journal of International and Comparative Law 245.

MLA 8th ed.

Fombad, Charles Manga. "Archibald v. Attorney-General in Perspective: The Role of
Actuarial Evidence in the Assessment of the Dependents' Damages for Loss of Support
in Botswana." African Journal of International and Comparative Law, vol. 11, no. 2,
1999, p. 245-261. HeinOnline.

OSCOLA 4th ed.

Charles Manga Fombad, 'Archibald v. Attorney-General in Perspective: The Role of
Actuarial Evidence in the Assessment of the Dependents' Damages for Loss of Support
in Botswana' (1999) 11 Afr J Int'l & Comp L 245

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ARCHIBALD V. ATTORNEY-GENERAL IN
PERSPECTIVE: THE ROLE OF ACTUARIAL
EVIDENCE IN THE ASSESSMENT OF THE
DEPENDANTS' DAMAGES FOR LOSS OF SUPPORT
IN BOTSWANA

CHARLES MANGA FOMBAD*

I. INTRODUCTION
In Archibald v. Attorney-General, the Botswana Court of Appeal had to deter-
mine the method for assessing the quantum of damages in dependents' claim for
loss of future support caused by the unlawful and wrongful killing of their
breadwinner. Although this normally depends primarily on the facts of each case,
important questions of principle do occasionally arise, as they did in this case.
The Court of Appeal had to decide what role actuarial evidence or evidence based
on actuarial tables prepared in other countries such as Britain and South Africa
could play in the process.
It is a case which highlighted some of the complexities of the Botswana legal
system. Based, as it is, on two legal systems which have "'mixed" and are
"mixing" the English common law, where the use of actuaries in this field is and
remains a matter of considerable debate, and the Roman-Dutch law,' where the
use of such evidence is fairly well entrenched, the Court of Appeal had the
difficult task of deciding which of these potentially conflicting methods to adopt.
This paper attempts to analyse the approach adopted by the Court and argues that
the proper solution does not necessarily lie in extensive excursions into, and the
adoption of extraneous legal principles or practices which, whatever their merits,
cannot easily fit within the evolving social, economic and legal realities of
Botswana. It is respectfully submitted that, whilst the Court's decision may have
authoritatively cleared the way for actuarial evidence and actuarial aids to be
admissible in Botswana Courts, it is doubtful if the manner of computation used,
and the quantum of damages awarded can be a safe guide to the award of
damages in similar cases that may come up before the Botswana Courts.

* Licence en Droit (University of Yaounde), LL.M. Ph.D. (University of London), Senior Lec-
turer in Law , Department of Law, University of Botswana.
I References to "Roman-Dutch law" in this paper should be understood as meaning the Roman-
Dutch law as applied in South Africa.

11 RADIC (1999)
246 Charles Manga Fombad

II. THE DEPENDANTS' CLAIMS AND THE ROLE OF ACTUARIAL

EVIDENCE IN ENGLISH AND ROMAN-DUTCH LAW

It will be instructive at this stage to consider, albeit briefly, the nature of the
dependants' claim for loss of support in both English and Roman-Dutch law. A
review of the attitude to actuarial evidence will also be done. It will be seen that
the basic nature of the dependency action as well as the fundamental principles
underlying the assessment of damages in both systems is the same, though the
method of achieving this is seemingly different.

A. The Nature of the Dependants' Claim for Loss of Future Support

The origins and basis of the dependency action in both English and Roman-Dutch
law are different but the scope of the action is for all practical purposes similar.
In English law, prior to the Fatal Accidents Act 1846, the common law gave
no remedy at all to dependants deprived of support as a result of the unlawful
killing of their breadwinner. The rule was that a personal action died with the
person to whom it was attached. This rule is usually traced to the dictum of Lord
Ellenborough in Baker v. Boston, where he said that "in a civil court the death of
a human being could not be complained of as an injury".2 Since the 1864 Act, the
dependants of a deceased breadwinner have a right to claim for loss of support
they have been deprived of from the wrongdoer. It is a pre-condition under the
Act that the deceased would have been entitled to maintain an action on his own
behalf and recover damages if he had survived.3 Although the Act defines the
class of persons who can bring a dependency action in wide terms, in practice,
most of the claims are brought by a widow or widower on behalf of her or himself
and their children, or sometimes by the parents of an unmarried child who was
contributing to their support. These are usually the persons who can easily prove
the actual loss of support arising from the death as required by the Act.4 One of
the important consequences of the rule, originally laid down in Franklin v. South
East Railway5 is that purely prospective loss is also actionable.
On the other hand, the origins of the essentially common law-based Roman-
Dutch action by dependants for loss of future support is shrouded in the mist of
time. As Puckrin JA points out in the Archibald case:

... it is not clear whether the actions sprang from old Germanic
custom or originated as an actio utilis or in factum under the lex
6
Aquilia of the Roman law.

2 (1808) 1 Comp. 493.

3 John M. Pritchard, Personal Injury Litigation, 5ed. Longman Professional, London (1986) at
p.46.
4 Thomas Saunt, "Damages on Death" in David Kemp (ed.) Damages for Personal Injury and
Death, Longman Professional, London (1986) at p.48.
5 (1858) 3 H & N 211.
6 Archibald v. Attorney-General Civil Appeal No. 5 of 1989 3 (Unreported). It is worth pointing
out that only the High Court decision of this case has been reported in the Botswana Law Reports
 Archibald v. Attorney-General in perspective 247

What is however certain is that this action was unknown in Roman law and is
generally regarded as one of the extensions to the Aquilian action. The nature of
the dependants' action was described in these words by Cobett JA in Evins v.
Shield Insurance Co. Ltd:
At common law the dependant's action for damages for loss of
support of the breadwinner is a peculiar remedy ...An essential and
unusual feature of the remedy is that, while the defendant incurs
liability because he has acted wrongfully and negligently (or with
dolus) towards the deceased and thereby caused the death of the
deceased, the claimant (the dependant) derives his right of action not
through the deceased or from his estate but from the facts that he has
been injured by the death of the deceased and that the defendant is in
law responsible therefor. Only a dependant to whom the deceased
was under a legal duty to provide maintenance and support may sue
and in such action the dependant must establish actual patrimonial
loss, accrued and prospective, as a consequence of the death of the
breadwinner.7
The judge then proceeded to define the elements of a dependant's action as:

...(a) a wrongful act by the defendant causing the death of the

deceased, (b) concomitant culpa (or dolus) on the part of the defendant,
(c) a legal right to be supported by the deceased, and (d) damnum, in
the sense of a real deprivation of anticipated support.8
The "legal right" to support may arise from either the common law or statute. At
common law, the duty of support is usually based on marriage or a blood
relationship.9 However, the requirement of a "damnum", actual or anticipated
serves to limit the action only to those near relatives upon whom rests a common
law duty to provide support and who can prove this as a fact, and in this way,
many relatives may have no claim at all.' ° It is in this respect that the English law
and Roman-Dutch positions on the nature of this action can be reconciled.
Nevertheless, two important differences are worthy of note.
Firstly, unlike English law, the South African courts are required to take
account of the widow's chances of remarriage or her actual remarriage in

(BLR). The original transcripts of the Court of Appeal decision used in this study is paginated in
a rather confusing manner. The majority opinions of Aguda JA and Amissah JP are paginated
from 1-13 and thereafter, the dissenting opinion of Puckrin appears, but this is also paginated
from 1-27. This is the order in which the opinions of the different Judges have been cited. Unless
otherwise indicated, all references to Archibald v. Attorney-General must be taken to mean the
unreported judgment of the Court of Appeal.
7 1980 (2) SA 814 (A) and also see Holmes JA in Legal Insurance Co. Ltd v. Botes 1963 (1) SA
608.
8 Evins v. Shield Insurance Co. Ltd. Supra at p.839.
9 See Jonathan Burchell, Principlesof Delict, Juta & Co. Ltd, Cape Town (1993) pp.234-7.
10 See M.M. Corbett and J.L. Buchanan, The Quantum of Damages in Bodily and Fatal Injury
Cases, 2nd ed. Juta & Co. Ltd, Cape Town (1964) pp. 57-62.
248 Charles Manga Fombad

assessing her damages for loss of support."l Secondly, again unlike English law,
the contributory negligence of the deceased breadwinner will not affect the
quantum of damages that the dependants are entitled to receive.1 2 In Roman-
Dutch law, the dependants' action in this respect, is treated as an independent,
non-derivative remedy, unaffected by defences vitiating the deceased's personal
right to sue. 3
Be that as it may, the basic features and the difficulties generated by the
dependants' action in both legal systems is essentially the same. The objective in
assessing the damages is to place the dependants as far as support is concerned,
and as far as money payment can, in the same position which they would have
enjoyed had the breadwinner not been killed. These claims are only second to
claims for personal injury in the difficulties they pose in assessing the quantum of
damages with any degree of accuracy. The calculations are often done in two
parts - the damages for loss of support until the date of the trial, which normally
gives rise to no particular problems, and the damages for the future loss of
support from the date of the trial, which poses enormous difficulties. The courts
are unavoidably required to prophecy about an uncertain future on the best
evidence available to them. In doing so, English law and Roman-Dutch law have
apparently adopted different approaches, as regards the use of actuarial evidence.

B. Who is an Actuary?
The Oxford English dictionary defines an actuary as "an official in an insurance
office who compiles tables of mortality, estimates rates of premiums, etc, or one
whose profession it is to solve monetary problems depending on interest and
probability, in connection with life, fire, or other accidents etc". 14 In the context
of damages litigation, an actuary is sometimes perceived as a person who can use
his specialist training as an expert calculator, to calculate on the basis of facts and
probabilities, the future for loss of support in a logical way. Although he performs
his calculations on the basis of actuarial science, some argue that he also has to
5
take account of the relevant legal principles.'

11 See Jonathan Burchell, op.cit. in note 9, at p. 2 39 and s. 3 (2) of the Fatal Accidents Act 1976.
B.S. Markesinis and S.F. Deakin Tort Law 3rd ed., Clarendon Press, Oxford (1994) at p.730
point out that however well intentioned this reform in the English position may have been, it has
nonethless created two anomalies in law; the first that it allows a widow who has actually
remarried and who is supported by her second husband to receive damages for the continuing
loss of support of the first husband, and the second that claims of widows and widowers are no
longer treated alike.
12 S.5 Fatal Accidents Act 1976.
13 See P.Q.R. Boberg, The Law of Delict. Volume IAquilian LiabilitY Juta & Co. Ltd, Cape Town
(1984) at pp.66 2 -663.
14 The Shorter Oxford English dictionary on historical principles, 3rd ed. (1973).
15 See Legal Insurance Co. Ltd v. Botes, supra at p.614.
 Archibald v. Attorney-General in perspective 249

C. Actuarial Evidence in English law

Despite some early English cases which appeared to express some sympathy for
actuarial evidence and aids,' 6 English courts have in general shown a marked
dislike and distrust of this technique. In the most recent and authoritative cases on
the issue, the Court of Appeal and the House of Lords have expressed their
unqualified preference for the traditional multiplier method as the best and pri-
mary basis for assessing damages. 7 While such evidence is not technically
inadmissible, the courts have consistently maintained that its only use, if any, is
8
as a cross check of the results reached by employing the multiplier method. In
Auty, Mills, Rogers and Popow v. National Coal Board, Oliver L.J. said:
As a method of providing a reliable guide to individual behaviour
patterns or to future economic and political events, the predictions of
an actuary can be only a little more likely to be accurate (and 19 will
almost certainly be less entertaining) than those of an astrologer.
The theoretical and practical grounds on which English judges purport to
reject actuarial evidence has not always been either clear or satisfactory and
increasingly, many writers are questioning this attitude. 2° In many Common-
wealth countries and in the United States, actuarial evidence is not only accepted
21
but encouraged. In the Australian case of Charlton v. Public Trustee (NT),
Blackburn J. considered the absence of actuarial evidence as "always regret-
table" Gibson in an article describing the Canadian situation, points out that the
Canadian courts have declined to follow the English courts' "rather arrogant
assumption that their intuitive powers are more reliable than an actuary's profes-
22
sional skills".
Since 1973, there have been timid attempts in England, to alter this approach.
In that year, the law Commission in their Report on Personal Injury litigation -
Assessment of Damages, 23 considered the position with regards to the use of
actuarial evidence as unsatisfactory and recommended that the use of such evi-
dence should be promoted by legislation. 24 No steps were taken to implement this
recommendations until 1982. As a compromise to withdrawing amendments to

16 See for example M'Donald v. M'Donald (1880) 5 App Cas 519 and Rowley v. North Western
Railway Co. (1873) LR & EX 221.
17 See Taylor v. O'Connor(1971) AC 115; Mitchell v. Mulholland (1972) 1 QB 65; and Auty, Mills,
Rogers and Popow v. National Coal Board (1985) 1 WLR 784.
18 See Lord Pearson in Taylor v. O'Connor, supra at p.140 and Edmund Davies L.J. in Mitchell i'.
Mulholland,supra at p.76.
19 (1985) 1 WLR784939.
20 See David A. Kemp, Kemp & Kemp, The Quantum of Damages in Personal Injury and Fatal
Accident Claims. Vol. L Law and Practice(1991) 8007-8013; John M. Pritchard, op.cit, in note 3,
48
at pp. , 129-130; and A. 1. Ogus, The Law of Damages, Butterworths, London (1973) at pp. 191-
192.
21 (1967) 11 FLR 42 50-51.
22 In his article Repairing the Law of Damages (1978) Man. LJ 637 639.
23 Law Commission No. 56.
24 See the draft clause it recommended in David A. Kemp, op.cit., in note 20, at p.8005.
250 Charles Manga Fombad

the Administration of Justice bill 1982 which would have given effect to the Law
Commission's recommendations, the Lord Chancellor's department undertook to
set up an Inter-professional Working Party to examine the role of actuarial
assessment of damages in personal injury and fatal accident litigation, comprising
of actuaries and lawyers appointed by their various professional bodies. A Work-
ing Party chaired by Sir Michael Ogden QC was set up and their first report
published in 1984 contained a series of actuarial tables prepared by the Govern-
ment Actuary's Department and instructions and explanatory notes designed to
assist courts in using the tables.2 5 These Ogden tables, as they are commonly
referred to, are now admissible in evidence under the Civil Evidence Act 1995.
This is still however, a long way from the Law Commission's recommendations
that actuarial evidence should be used as a primary method of assessing damages
26
for future loss.
If, as Stephenson L.J said in Sullivan v. West Yorkshire PassengerTransport
Executive, 27 it is for the parties to decide what evidence to call and for the judge
to rule whether it was admissible or not, then the position is that, with or without
the Ogden tables, actuarial evidence is admissible. This leads to two conclusions
as regards the English approach. Firstly, that the admissibility of actuarial evi-
dence is discretionary and secondly, even where it is admitted, it may only play a
secondary role to the traditional multiplier method.

D. Actuarial Evidence in Roman-Dutch law

South African courts are more inclined to use actuarial evidence than English
courts, and have also declined to adopt certain methods of quantification
employed by English courts.2 8 In Southern Insurance Association Ltd v. Bailey
NO, Nicolas JA stated that there were basically two approaches:
One, is for the judge to make a round estimate of an amount which
seems to him to be fair and reasonable. That is entirely a matter of
guesswork, a blind plunge into the unknown.
The other is to try to make an assessment, by way of mathematical
calculations, on the basis of assumptions resting on the evidence. The
validity of this approach depends of course upon the soundness of the
assumptions, and these may vary from the strongly probable to the
29
speculative.

25 The second edition of the Report was published in November 1994 and has been reproduced in
Appendix 1 in David A. Kemp, op.cit. in note 20 at pp.80 2 8-8005.
26 See Law Commission No. 224 and Law Commission Consultation paper No. 125.
27 (1985) 2 AER 134.
28 See P.J.Visser and J.M. Potgieter, Law of Damages,Juta & Co. Ltd, Cape Town (1993) at p.13
who point out that "the principles and terminology of the English law of damages could not
displace Roman-Dutch law completely and especially since 1910 the Apellate Division has
placed more emphasis on Roman-Dutch law"
29 1984 (1) SA 98 (A).
 Archibald v. Attorney-General in perspective

The learned judge then pointed out that the South African courts have often
preferred the second approach. In doing this, they have, as a corollary relied
extensively on actuarial calculations and evidence. This approach however in-
volves different methods; a simple-multiplier method, used with reference to the
date of the delict or the date of the trial; a precise gross-multiplier method; the
3
year-by-year annuity method and occasionally, the so-called "Murfin" method. "
The particular method used in a given case depends on the precise circum-
3
stances as well as the preferences of the actuary performing the calculations.
The general approach is to use the actuarial calculations as a starting-point and to
adjust the figure obtained in accordance with the equities of the case having
regard to all relevant factors and contingencies. In Krugel v. Shield Insurance Co.
Ltd,32 the court pointed out that if data are available and actuarial calculations
33
are
practically possible, it would be incorrect to use an intuitive guess.
However, despite the considerable reliance on actuarial evidence by South
African Courts, this is not treated as absolutely indispensable. In Legal Insurance
Co. Ltd v. Botes,34 Homes JA pointed out that the court was not inexorably tied
down by actuarial calculations and has a wide discretion to award as damages
what it considered appropriate in the circumstances. Actuarial evidence has been
disregarded where the process of assessment became too speculative, or where
the data was insufficient and unreliable. 35 And where there is no data, the courts
have usually exercised their equitable discretion to award what is considered
appropriate in the circumstances, but in doing so they have taken judicial notice
36
of annuity and other actuarial aids.
There are the occasional cases where a judge has refused to consider that an
actuary can make a useful contribution and in the recent case of Glass v.
Santam,37 the judge referred to actuaries as "'parasites to litigation". Such views
are however rare. The importance attributed to actuarial evidence is such that the
South African courts have displayed considerable reluctance to interfere with the
details of actuarial calculations and a wide variety of practices are accepted
38
without question or comment.
It is against this rather confusing English/Roman-Dutch background that the
Archibald case had to be decided. Although English law has, and continues to
influence the dominant and casuistic Roman-Dutch law that applies in South
Africa, there has been a trend in recent years to place more emphasis on "pure"

30 See R.J. Koch, Damages for Lost Income, 1st ed. Juta & Co Ltd, Cape Town (1984) pp.4-12,
238-243; Newdigate and Honey, MVA Handbook, Juta & Co Ltd, Cape Town, (1985) pp.166-
174.
31 P.J. Visser and J.M. Potgieter op.cit. innote 28, at p.367.
32 1982 (4) SA 95 (T)101 and also see Innes C.J in Hulley v. Cox 1923 AD 234-244.
33 Cf Glass v. Santam, infra, note 37.
34 1963 (1) SA 608 (A) 614.
35 See Roxa v. Mtshayi 1975 (3) SA 761 (A), a case involving a young child where the evidence was
considered too speculative.
36 See Arendse v. Maher 1936 TPD 162.
37 1992 (1) SA 901 (W) 904.
38 See R.J. Koch, op.cit. in note 30, at pA.
252 Charles Manga Fombad

Roman-Dutch principles.39 The method of assessment of damages for future loss,

such as the dependants' claim for loss of future support is one of those areas
where the two legal systems appear to be developing along different lines. With
the preceding in mind, it is now possible to appreciate the position that the
Botswana courts adopted.

III. THE ARCHIBALD V. ATTORNEY-GENERAL APPROACH

The Archibald case arose from the unlawful and wrongful killing of the appel-
lant's husband by a member of the Botswana Defence Force during a search of
the deceased's car at a road-block. The only question for determination by the
Court of Appeal was the quantum of damages that had to be awarded to the
appellant as widow and her three children for loss of future support.
The amount claimed as damages had been calculated by a firm of actuaries
engaged by the appellants but this amount was altered on 5 different occasions,
supposedly on the basis of changes with respect to certain basic figures supplied
by the deceased's employer to the actuaries. The figures claimed at various stages
were as follows:

i) on January 27, 1988 - P445,882

ii) on March 25, 1988 - P546,498
iii) on June 27,1988 - P581,304
iv) on May 22, 1989 - P1, 827,752
v) on June 6, 1989 - P1,000,026; or P1,149,254; or P1,203,308; or
40
P1,257,362; or P1,324,930.

The admissibility of these figures, based as they were on actuarial calcula-

tions, depended on whether the English or Roman-Dutch approach was adopted.
This was particularly critical because the respondents brought in no actuary to
challenge either the figures or the basis of the computation.

A. The High Court

In the High Court, Chief Justice Livesey Luke, after a careful, thorough and
penetrating analysis of the evidence noted that the actuarial method he was being
invited to adopt was commonly used by the courts in South Africa. After a brief
review of the English law approach to this, and in terms evoking shades of
English law insularity on the subject, he rejected the actuarial method. In doing
so, he recited many of the reasons that English Judges had over the years given to
justify their misgivings of the actuarial technique.
Firstly, he pointed out that actuaries may not be readily available or may be
too expensive to engage and their presence was likely to increase the length and
costs of litigation. He put it thus:
4
39 See P.J. Visser and J.M. Potgieter, op.cit., in note 28, at pp.13-1 .
5 6
40 Archibald v. Attorney-General,supra at pp. - .
 Archibald v. Attorney-General in perspective

In my opinion reliance on expert actuarial evidence presupposes that

expert actuaries are available. In a country where they are readily
available, it may not be difficult to make use of their service. But in a
country where they are not readily available, then if it is the rule that
such evidence is essential, a litigant may be forced to recruit the
services of an actuary from abroad. This is bound to increase the
costs of litigation. There is no doubt that the use of expert actuarial
evidence increases the costs of litigation and may unnecessarily pro-
long the trial. 4'
He also considered the possible hardship and unfairness on the party who is
unable to afford the services of an actuary and said:
It is also important to remember that in this country, in common with
many other developing countries, the majority of the people are poor
and experts in certain specialised disciplines are not readily available.
I think, that it is true to say that expert actuaries are a rarity or a non-
existent species in most developing countries. To insist on expert
actuarial evidence in such a situation, would not only increase the
costs of litigation, but would also cause hardship and unfairness. If an
actuary is not available locally, then one may have to be imported and
of course his travelling and other incidental expenses would add to
the costs. But even if actuaries are available locally, a situation might
arise where a party may be in a position to afford to engage the
services of an actuary, whilst his opponent may not be able to afford
to pay for that service. The result would be that the rich litigant would
have an unfair advantage over his poor opponent. No court of justice
would justify or sanction such a situation. In my opinion, the views I
have just expressed underline the inadvisability and undesirability of
our courts adopting a method of assessment that makes expert actu-
42
arial evidence indispensable.
He also felt that there was "nothing intrinsically Roman-Dutch common law
about the use of the year-by-year method or of the actuarial calculations closely
associated with it"4 3 other than the fact that it was the method preferred by the
South African courts. Not being intrinsically Roman-Dutch common law, he felt
he was not bound to adopt this method as long as the appropriate damages were
awarded. The learned Chief Justice found the material on which the actuaries had
based their calculations inadequate and unreliable. As the deceased and his
family were white Zimbabweans, he could not see the relevance or applicability
of statistics relating to white South Africans. He also could not understand why
the calculations of the dependants' loss of support based on the actual and

41 Archibald v. Attorney-General(1989) BLR 421 430.

42 Ibid., at p. 431.
43 Ibid.
254 Charles Manga Fombad

prospective income of the deceased, which must have been known to the
employers at the date of his death, would have fluctuated and escalated so
significantly between the date of his death and about two years later.
In choosing the appropriate method of assessing damages in such cases, the
learned Chief Justice said that the important considerations should be "simplicity
and reduction of costs"." The method that commended itself to him and which he
felt satisfied the requirements, was the English multiplier method. It will suffice
to point out that his formulation of the applicable principles of the English
multiplier method were correct, but their application to the facts and in particular
the manner in which he arrived at the total of P201,655 which he awarded as
damages for loss of future support was certainly erroneous and formed the basis
of the appeal. His strong views on the role of actuarial evidence, although a
reflection of some of the well-worn English judicial pronouncements on the
topic, reveal many of the misconceptions that partly explain the English courts'
distrust of actuarial evidence.4 5 This was an incidental but very important issue
raised by the appeal.

B. The Court of Appeal

The appeal came before three judges. The decision of the High Court was
overruled but one of the judges disagreed with the amount awarded as well as the
basis on which the calculation was done by the other two. It is perhaps no
coincidence that the judges in the majority who preferred to stick to the English
multiplier method which the lower court had used were of the English common
law background while the dissenting judge who relied entirely on the actuarial
calculations submitted was a South African schooled in Roman-Dutch law.
Aguda JA, in stating the majority position allowing the appeal, expressed
agreement with the learned Chief Justice that the plethora of figures paraded by
the actuaries raised doubts about their credibility. As regards the latter's outright
rejection of the actuarial evidence, the learned Judge was content to say:

It is the duty of the court to do justice between the parties, and in that
task any method known to the law for the calculation of the loss
suffered by an injured party which will adequately compensate him
for such loss should be adopted. An actuary is an expert and his
evidence as such is entitled to the greatest respect, but when the basic
information given to him are unreliable information, such as was
given to Mr. Rolland, such expert evidence cannot be accepted by the
46
court without demour.

44 Ibid., at p.432.
45 See J.H. Prevett, "Actuarial Assessment of Damages" in David Kemp (ed.) op.cit. in note 4, at
pp.10 1-123.
46 Archibald v. Attorney-General,supra at pp.7-8.
 Archibald v. Attorney-General in perspective 255

Amissah JP, in his concurring judgment was more deprecatory of the learned
chief Justice's rejection of actuarial evidence. He said:
I do not object to the use of the net multiplier method in the assess-
ment of damages. But I think an outright rejection of the use of the
actuarial method of calculation for Botswana is, with due respect,
wrong. Both the actuarial and the net multiplier methods are simply
mechanisms for arriving at a just assessment of loss. In an area of
judicial determination which involves a projection into the unknown
future, it would be a bold man who could say that one method is
infallibly the only way of arriving at a just answer in any particular
47
country.
In his view, "there is nothing which ties Botswana to the multiplier method",
which they adopted in the case. The learned Judge felt that the fact that actuaries
were not readily available instead of being a ground for their evidence being
rejected, "should make a court more48
protective of the interests of the party who is
unable to produce a rival report".
The majority in adopting the English multiplier method reaffirmed the basic
rule which the chief Justice had stated thus:
The value of the dependency is calculated by taking the present
annual figure of the dependency and multiplying it by a figure which,
while based upon the number of years that the dependency might
reasonably be expected to last, is discounted so as to allow for the
fact that a lump sum is being given now instead of periodical pay-
ments over the years. The former figure is called the multiplicand and
49
the latter is called the multiplier.
In applying this, they rightly, it is submitted, fixed a higher figure for the
multiplicand than had been arrived at by the High Court. They also disagreed
with the figure the learned Chief Justice had fixed as the multiplier. The reasons
and the method by which they arrived at the new multiplier is of such fundamen-
tal importance that Aguda JA's judgment on this must be quoted in full:
As to the multiplier again, with all due respect, I must differ from the
learned Chief Justice. I would rather prefer to make resort to Table I,
Appendix III in John Munkman, Damagesfor PersonalInjuries and
Death (8th ed., Butterworths, 1989) page 263. The Table, and others
shown in the book were prepared by the representatives of the Actu-
arial and legal professions in England, and they have been prepared
to take account of most of the imponderable unknowns in matters of
this nature. Table I shows multipliers for the assessment of the

47 Ibid., at pp.11-12.
48 Ibid., at p.12.
49 Ibid., at p.8.
256 CharlesManga Fombad

present capital value of future annual loss. The Table assumes that
the loss begins immediately and continues for the whole of the rest of
the Plaintiff's life allowing for the possibility of early death or pro-
longed life. The basis of the multipliers are based on returns on
capital ranging from 1 1/2% to 5%.
... In times of inflation the return on capital may fall to something
between 21/2% to 31/2%. I bear in mind that the deceased died at the
age of 35. And I bear it in mind that the return upon capital as at the
moment cannot be less than 3% in this country. Upon all these
circumstances I believe that the multiplier of 21.7 as shown in the
50
Table would be appropriate.
It is the manner in which the multiplier was fixed that we take issue with the
learned Judge and the resulting award that was calculated based on it.
The views of Puckrin JA who disagreed with his learned brethren is of more
than passing interest. The learned Judge cites Cooks i. Knowles51 as authority for
his view that "English courts do not accept actuarial evidence". 5' He saw no
reason why the Court of Appeal should "reject" the actuarial evidence and
"employ in its stead methods adopted holus bolus from other jurisdictions which
may not be applicable in Southern Africa". 53 He then pointed out that "the mere
fact that actuarial evidence has been led and calculations done for the benefit of
54
the court, does not mean that the court has to accept such evidence blindly".
With regard to some of the reasons advanced by the High Court for rejecting the
appellant's actuarial evidence he said:
If only one party is able to afford the luxury of actuarial evidence,
there is no reason why they court should not permit such evidence to
be led, even though it would no doubt view such uncontroverted
evidence with caution, tempering the result with he application of
other methods. After all, the purpose of all expert evidence is to assist
55
the court, not to usurp the function of the court.
However, having reiterated these undoubtedly sound principles, the learned
Judge accepted, with gusto, some of the figures supplied by the deceased's
employer and the calculations made therefrom, but for minor modifications, on
the grounds that it was incumbent on the respondents to lead evidence of a
specialist to challenge them, and they had not done so. He therefore felt bound, in
the absence of such contrary evidence to accept these calculations. 56 The figure of
P1,076,342 which he considered appropriate as damages for loss of support was

50 Ibid., at pp.9-10.
51 (1978) 2 AER 604 615.
1
52 Archibald v. Attorney-General,supra at p. 1.
53 Ibid., atpp.10-11.
54 Ibid., at p.9.
55 Ibid., at p. 11.
56 Ibid., at pp.19, 25.
 Archibald v. Attorney-General in perspective 257

quite close to the last figures which the appellant claimed on June 6, 1989 to lend
credence to Kock's view that South African judges are generally disinclined to
interfering with the details of actuarial calculations, in spite of their considerable
discretionary powers to do so." There was no evidence that the learned Judge
treated the uncontroverted and conflicting evidence of the appellant's actuary
with the caution that he had indicated was needed in such circumstances, nor that
he made any attempts to check their calculations with the application of other
methods.
The majority set aside the award of the High Court and substituted it with an
award of P582, 211 in favour of the appellant. There was thus a considerable
difference in the amount arrived at through the use of the two methods. But for
the fact that the discrepancies were so glaring, there is nothing unusual about
judges, even where they apply the same method, arriving at slightly different
figures, as was the situation in the House of Lords in the case of Taylor v.
O'Connor.58 Nevertheless, there may arise the question whether the two methods
necessarily lend to different results. This is particularly important because the
Court of Appeal did not rely exclusively on the English multiplier method but
also resorted to some actuarial aids. Is this the correct way forward for Botswana?

C. A Critique of the Court of Appeal Approach

As indicated above, the figure adopted as the multiplier by the majority in the
Court of Appeal casts serious doubts on the accuracy of the amount awarded as
damages for loss of future support. Aguda JA, with whose opinion Amissah JP
concurred decided to rely exclusively, and with neither explanation nor question,
on the so-called Ogden Tables alluded to earlier in this discussions. The multi-
plier of 27.7 which he arrived at was unusually high.
Multipliers are usually calculated to ensure that the capital sum arrived at,
together with the income it generates, will be exhausted at the end of the period of
expected dependency. The figure used is never intended to reflect either the total
number of years for which the dependency would have continued nor the
expected life span of the deceased or his dependants. 59 Generally, the multiplier
will rarely exceed 18, and a multiplier of more than 15 would only exceptionally
be awarded in respect of a deceased who is over 35 years at the time of his
death. 6" In fact, Graham v. Dodds6 is authority for the proposition that a multi-
plier of 18 for a breadwinner of 41 is excessive. However, it is important to note
that Aguda JA did not strictly apply the traditional English multiplier method as
such, but relied entirely on the Ogden Tables in arriving at the multiplier. Could

57 See R.J. Koch, op.cit. in note 38.

58 See note 17, supra, and in general, Munkman Damagesfor Personal Injuries and Death, 8ed.
76 18
Butterworths, London (1989) at pp. 1 - 5.
59 Thomas Saunt, op.cit., in note 4, at p.52; and B.S. Markesinis and S.F. Deakin, op.cit. in note 11,
at p.731.
60 See John M. Pritchard. op.cit. in note 3 at p.183; and Thomas Saunt op.cit. in note 4, at p.52.
61 (1983) 2 AER953.
258 CharlesManga Fombad

this explain and justify the unusually high multiplier of 27.7? There is no agree-
ment amongst writers on the possible effect of the recourse to such actuarial aids
as the Ogden tables on the multiplier and ultimately the amount awarded as
damages.
Prevett, stating the position from the perspective of an actuary suggests that if
the Ogden tables are accepted and followed by courts, then "the sums awarded to
plaintiffs and the dependants of deceased persons are likely to be significantly
higher than at present". 62 John Pritchard also opines that "the use of actuarial
tables is likely to lead to a higher multiplier than under the conventional
approach".63 And he concludes that there is a significant advantage to a plaintiff
if he can use these tables. 64 Peter Cane in Atiyah's Accidents, Compensation and
the Law, disagrees, positing that "it is generally argued that awards would tend to
be higher than they are if actuarial techniques were used, but this assertion has
never been rigorously or systematically tested".65
But it is submitted that the Archibald case raises a more fundamental issue
which goes further than an inflated multiplier figure. Having come to the conclu-
sion that "any method known to the law for the calculation of the loss suffered by
an injured party which will adequately compensate him for such loss should be
adopted",66 was it proper for the Botswana Court of Appeal to use the Ogden
tables as the exclusive means of determining the appropriate multiplier in that
case? The answer to this question has potentially far-reaching consequences. For
instance, the learned Chief Justice had rejected similar actuarial evidence on the
deceased's life expectancy which relied on the statistics of white South Africans
on grounds that this was a "wrong statistical basis". 67 It is respectfully submitted
that there was no justification for resorting to the Ogden tables, and that even if
there was, the Court of Appeal did not exercise the caution required when using
them. It could not therefore have arrived at a correct multiplier on this miscon-
ceived premise. There are several reasons for this.
First, within the English legal system itself, the Ogden tables have no legal
status, at least in the sense that courts are obliged to use them. In England and
Wales, in the absence of legislation, an actuary has to be called to prove them if
they are to be used in evidence. 68 Soon after they were published, they were
submitted without success in two cases to courts of first instance. 69 In Spiers v.
Halliday,70 a High Court judge refused to look at the tables and the accompany-
ing commentaries, unless evidence was adduced as to the correctness of their
contents. In the recent Scottish case of O'Brien Curator Bonis v. British Steel

62 In Actuarial Assessment of Damages, op.cit. in note 45 at p. 111.

63 Op.cit. in note 3 at p.183.
64 Ibid., at p.130.
4
65 5 ed. Butterworths, London (1993) at p.13 .
66 Archibald v. Attorney-General supra at p.7.
67 Archibald v. Attorney-General (1989) BLR 421 431.
2 2
68 See John M. Pritchard op.cit. in note 2, at p. 8 .
69 See J. H. Prevett op.cit. in note 45. at p.123.
70 Times, 30 June 1984.
 Archibald v. Attorney-General in perspective 259

plc7 I the Court was only prepared to take judicial notice of the Ogden tables by
way of general background. It is submitted that it was not correct for the
Botswana Court of Appeal to apply these tables when they are still the subject of
controversy in the land of their birth.
Another worrying issue is why the Court of Appeal should assume that tables
compiled on the basis of statistics for whites living under quite different social,
economic and other material conditions in England could be relevant to a white
Zimbabwean living in Botswana. In the O'Brien CuratorBonis case Lord Presi-
dent Chope of the Scottish Inner House Court felt it was not safe to rely on the
tables, for as he put it:
The actuarial data at the end of the tables contains a reference to the
English life tables No. 13. ... I do not think that we can assume that
the mortality rates of a man living in Scotland at the date of the proof
were exactly the same as those for England and Wales during that
period. Accordingly I do not think it would be right for us to use the
tables as a starting point in order to determine the multiplier appropri-
ate for use in regard to the cost of future care in the present case
although this does not mean that they could not be used as a check on
72
a multiplier arrived at by other means.
If Lord President Chope felt it unsafe to use tables based on the lives of English
men in dealing with Scottish men then it is far more unsafe to use them for people
living in far-flung Botswana. Even within Africa, it can be argued that different
economic, social and other material factors play such an important role that it
would be pure speculation to use actuarial information or tables from one African
country as evidence in another country simply because they are more readily
available.
Perhaps the most serious flaw was the assumption by Aguda JA that the
Ogden tables as prepared "take account of most of the imponderable unknowns in
matters of this nature". 73 Based on this misconception, the learned Judge simply
accepted and mechanically applied the figure he obtained from the tables. These
tables contain elaborate explanatory notes, one of which states:
The tables have been calculated to take into account the chances that
the plaintiff will die young (or live to be very old) based on popula-
tion mortality. They do not take account of other risks and vicissi-
tudes of life, such as the possibility that the plaintiffwould forperiods
74
have ceased to earn due to ill-health or loss of employment.
(emphasis added).
The multiplier obtained from the tables ought to have been adjusted to take

71 1991 SLT 477.

72 Ibid., at pp.478-479.
73 Archibald v. Attorney-General, supra at p.9.
74 See note 14 in David A. Kemp, op.cit. in note 20, at p.8022.
260 Charles Manga Fombad

account of other risks and vicissitudes of life as the explanatory note makes
absolutely clear. Even in the absence of any specific evidence as to the probabil-
ity of some adverse contingency arising, it is generally accepted that a discount of
about 10% should be made to the actuarial multiplier. 75 The failure to discount
for these contingencies by the Court of Appeal clearly falsified the multiplier it
arrived at.
On the whole, the Ogden tables deal with and are based on many assumptions
which are not necessarily relevant to, or true of Botswana. As a precaution, the
explanatory notes warn:
If doubts exist that the tables are appropriate to a particular case
which appears to present significant difficulties of substance it would
76
be prudent to take actuarial advice on the tables' applicability.
As we have seen, the English courts require the tables to be proved by sworn
testimony. It was, with due respect, unwise for the Botswana Court of Appeal to
have disregarded this precaution and used the Ogden tables without seeking
actuarial advice. The tables have been drawn up on the assumption that the
plaintiff will invest his damages award in index-linked government stocks in
England and therefore the damages are assessed by using multipliers based on the
rate of discount corresponding to the yield on such stocks at the date of the
assessment. This assumption clearly can not apply to a Botswana case. The Court
of Appeal erroneously assumed that the Ogden tables now provide an easy,
straight-forward and ready-made answer to the complex issue of fixing a multi-
plier, but here again, they failed to heed the warning in the explanatory notes that
7
this was not SO.
Actuarial evidence and tables require solid and unimpeachable data. There is
no reason why any table should be admitted in evidence or used by court in
dependency actions, when the statistical data on which it is based has no bearings
to the deceased. For as Lord Pearson pointed out in Taylor v. O'Connor:
... there are too many variables and there are too many conjectural
decisions to be made before selecting the tables to be used. There
would be a false appearance of accuracy and precision in a sphere
78
where conjectural estimates have to play a large part.

The calculation of the multiplier can never really be a scientific operation. The
use of actuarial techniques may make the process more reliable but when this is
based on wrong basic data, then arguably, it does nothing more than complicate a
process already fraught with uncertainty.

75 Ibid., at p.60 2 8.
76 See W.V.H. Rogers, Winfield & Jolowicz on Tort, Sweet & Maxwell, London (1994) at p.657.
77 See note 15 in David A. Kemp, op.cit. in note 20 at p. 8022.
78 Supra, at p.140
 Archibald v. Attorney-General in perspective

IV. CONCLUSION
Certain conclusions can be drawn from the above analysis of the Archibald
decision by the Court of Appeal. As the highest court in Botswana, one of its
functions is by its awards to guide lower courts as to the quantum of damages
appropriate to compensate victims in like cases. The court does not thereby create
a precedent or an inflexible rule of law or rule of practice. Nevertheless, judicial
certainty and predictability requires that Court of Appeal awards be taken as a
general guide to the current range of damages in a given area.'9 In this respect, for
the reasons advanced above, it is submitted that the Botswana Court of Appeal's
award in this case is not a safe and satisfactory guide to lower courts on the level
of damages to be awarded in dependency claims.
It is, however, authority for the view that any method of compensation of
damages known to the law can be used by the courts provided the injured party is
adequately compensated for his loss. It is possible to argue that it goes even
further than some English and Roman-Dutch law authorities who consider the
multiplier and actuarial methods as distinct and alternative approaches. Designed
as they are, to deal with situations which are essentially futuristic and uncertain,
they can if used properly together combine to make an assessment "more realistic
and less subject to error" and still allow the judge to use his discretion, experience
80
and precedents within more rational and logical limits.
On the other hand, some of the practical difficulties that actuarial evidence and
techniques pose that were alluded to by the learned Chief Justice in the High
Court cannot be lightly ignored. The actuary is not an officer or servant of the
court and when employed by a party will inevitably seek to select and present the
evidence in a manner favourable to his clients. The use of actuarial aids such as
the Ogden tables may limit any possible prejudice or injustice that may result as
well as reduce costs and the lengths of trials. But in the absence of similar tables
in Botswana, there is no cogent legal or practical justification for foraging for
extraneous actuarial aids like the Ogden tables in England or other statistical data
from South Africa. The future direction of the development of a coherent Bot-
swana legal system out of the intermarriage between English and Roman-Dutch
legal principles will depend more on the functional ability of the emerging rules
to satisfy the needs of justice and fairness than the purity of their ancestry or their
affinity to one or the other legal heritage. Archibald's case illustrates not only
how this can be profitably done but also the dangers that attend this difficult
process.

79 See Lord Diplock, in Wright v. British Railways Board (1983) 2 AC 773.

80 See J. H. Prevett, op.cit. in note 45, at pp.105-106.