COURT OF APPEAL, ACCRA
21 APRIL 1975
APALOO KINGSLEY-NYINAH AND ANNAN JJA
CASES REFERRED TO
- Kru v. Saoud Bros & Sons [1975] 1 G.L.R. 46, C.A.
- Flint v. Lovell [1935] 1 K.B. 354; 104 L.J.K.B. 199; 152 L.T. 231; 51 T.L.R. 127; 78 S.J. 860, C.A.
NATURE OF PROCEEDINGS
APPEAL against quantum of compensation for personal injuries. The facts are fully set out in the judgment of Apaloo J.A.
COUNSEL
- Hughes for the appellants. Forson for the respondent.
[p.286] of [1975] 2 GLR 285 JUDGMENT OF APALOO J. A.
On 3 August 1970, the respondent (whom I shall hereafter call the plaintiff) rode in a Mercedes bus No. GJ 1406 from Half-Assini en route for Takoradi. He was a passenger for reward. Shortly after passing Axim, this bus was in collision with another Mercedes bus No. GJ. 1728 which tried to overtake it. Both vehicles fell apart and the plaintiff sustained injuries.
Apparently unsure which of the drivers was to blame for the accident, the plaintiff brought an action against the owners of both vehicles jointly and severally for “damages for injuries sustained by him.” Both vehicle owners, acting by the same solicitor, filed a defence in which they denied liability for negligence and disclaimed knowledge of the plaintiff s presence in either vehicle. In any event, both defendants denied that the plaintiff suffered the injuries of which he complained.
When trial opened before Coussey J. in the High Court, Sekondi, on 23 March 1972, liability for negligence was admitted and the only remaining issue on which trial proceeded, was the quantum of damages to which the plaintiff was entitled. To enable the judge assess this, the plaintiff gave evidence of his age and occupation, the income from his work and the nature and extent of his injuries. On the latter, he produced medical evidence. The judge assessed damages at 015,000.00 and said that in doing this, he had given careful thought to the evidence and the matters which ought properly to be taken into account in making this assessment including the “fluctuating value of the cedi.”
Both defendants appeal to this court on the ground that the award was excessive and unreasonable and that the judge “had no legal basis for giving such a huge award.” They urged that it be substantially reduced.
The evidence provides very little information about the plaintiff. He was 50 years of age at the date of the accident and had a wife and four children with whom he lived at Ankaful. He was an ex-service man who fought in the last war. On leaving the army, he settled down in his home at Ankaful and earned a living by making a food farm. He estimated his income from this as between £G50—£G90 a year. There is no evidence of his mode of life or any particular pleasures that he enjoyed. Nothing was said about his pastime. No questions were directed to him about any amenities of life which he enjoyed before the accident and which the accident prevented him from enjoying.
There was, however, clear evidence of his injuries. The doctor said he had a fracture of the pelvis and rupture of the urethra. Following from the latter injury, the plaintiff suffered urethral stricture. He cannot pass urine properly. The urinal passage has to be opened up periodically. According to the doctor, this is painful and can only be done under anaesthesia. One direct result of the accident, is that the plaintiff could not have an erection. The doctor confirmed this and said that a person who suffered injuries to the pelvis and urethra “may not be able to have sexual intercourse.”
On the evidence proffered to the court, the learned judge had to determine what is a fair and reasonable compensation to award to the
[p.287] of [1975] 2 GLR 285
plaintiff not only for his injuries, but any resultant loss that he suffered thereby. Although this is generally a matter of impression and common sense, the cases establish two main principles of approach, firstly, that in so far as the injury results in pecuniary loss, past or prospective, the plaintiff should be awarded full compensation for that loss and secondly, where the damage does not admit of arithmetical calculation, the plaintiff should be awarded fair and reasonable compensation, such compensation to be assessed in the light of previous awards in respect of comparable damage: see Kemp & Kemp, Personal Injury Claims (2nd ed.), Vol. 1, p. 5.
No claim was made in respect of any past financial loss or any special damage occasioned to the plaintiff by the accident and no evidence was led from which such loss can be held to be established. The plaintiff, however, gave evidence of his prospective loss of earnings. His testimony shows that since leaving the army, he engaged himself in food farming in a small way and earns the comparatively modest sum of 0180.00 per annum. At 50 years old and barring any other mishaps, he should continue in this occupation for a period of fifteen years. The plaintiff said that in view of the injury to his pelvis, he could not carry on this calling. There is no evidence that he could or that his condition would improve sufficiently to enable him resume food farming. Taking fifteen years purchase on an annual income of 0180.00, the plaintiff lost an aggregate sum of 02,700.00 for the rest of his working life. A lot of unknown factors beside this accident may disable the plaintiff from earning this sum and it must be reduced by the inevitable contingencies of life. I think a reasonable “taxing down” sum is 0400.00. That leaves a resulting net income of 02,300.00. This sum represents the financial loss occasioned to the plaintiff by the accident.
The plaintiff is also entitled to a fair and reasonable compensation for the pain and suffering caused him by the accident. The nature of the accident and the injuries he suffered would, in the ordinary course of things, cause him a great deal of pain. He was thrown off the vehicle by the force of the impact and was retrieved under one of the buses. His injuries kept him in hospital for three months. As I said, his pelvis was fractured and the rupture of the urethra will result in stricture of a more or less permanent nature. From time to time, this will have to be opened by some form of operation to allow the passage of urine. His permanent disability was put at 30 per cent. Human suffering can hardly be translated into cash, but the best one can do is to be guided by the accumulated experience of the courts in these matters. The Review of Ghana Law has been perpetuating this experience by its caption under Recent Awards. I have looked at these. Not all the awards can be regarded as helpful guides, but looking at the broad pattern, I think a fair and reasonable compensation to award the plaintiff under this head is 01,200. 00.
There is also the head of damages known as loss of amenities of life. What are the things that make life worth living for the plaintiff and which
[p.288] of [1975] 2 GLR 285
the accident deprived him of? As I said, on this, the pleading and evidence are entirely silent. I find it hard to believe that a 50-year old man who saw service abroad and who must have been exposed to other cultures has no pastime of any sort. The one thing that was pleaded and which can be put under this head, is loss of sexual potency. This was clearly proved. For a middle-aged man of 50 years, the loss of sexual function must be a calamity especially for one living in a village which cannot boast of many avenues of relaxation. The one redeeming feature of this case is that the plaintiff is not a young man whose matrimonial prospects have been destroyed by the accident. He has had his day, so to speak, for he has been married for 25 years and has fathered four children, the youngest of whom was only six years old at the date of the mishap. His wife, is also, fortunately, still in coverture.
The question really is, what is a fair and reasonable compensation for his misfortune? In Kru v. Saoud Bros. & Sons [1975] 1 G.L.R. 46, C.A., this court awarded in favour of a middle-aged man of 54 years whose sexual activities were impaired as a result of an injury to his waist, 0250. 00 damages under this head. This is clearly not a case of impaired sexual potency. It is complete loss of function. I would assess a reasonable compensation under this head in the sum of 01,000. 00. In a case of this nature, it is possible to allow one’s feeling to get the better of one’s judgment.
Accordingly, the total compensation I would award in favour of the plaintiff for his injuries and resulting loss, is 04,500. 00 made up as follows: 02.300. 00 for prospective loss of income, 01,200. 00 for pain and suffering and 01,000. 00 for loss of amenities of life. So while I consider 04,500. 00 fair and reasonable, the learned judge thought 015,000. 00 right. But I can’t interfere with his award simply because I myself consider that it was on the high side. I can only do so if, borrowing the words of Greer L.J. in Flint v. Lovell [1935] 1 K.B. 354 at p. 360, C.A., I am convinced either “that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, . . . an entirely erroneous estimate of the damage to which the plaintiff is entitled.”
That the judge acted on at least a wrong principle of law, is plain from the factors he himself said he took into consideration in quantifying the damages. One of such factors the judge said he had regard for, was the plaintiff s dependants. I do not see how they come in. This was not an action to recover damages for the wrongful death of the bread-winner of the family. It was not suggested that the accident obliged the plaintiff to hire domestic or other help and that the plaintiff s dependants filled this role and come in for consideration qua servants. The plaintiff did have a dependant wife and four children and the judge’s reasoning shows that had he omitted them from consideration, his assessment would have been lower. I think the judge himself provided material to justify a reduction of his award.
The learned judge also said he had regard for, what he termed, the plaintiff s years of purchase. This term is only meaningful in the context of
[p.289] of [1975] 2 GLR 285
this case if it is used as a yardstick for computing the plaintiff s loss of prospective earnings. Although the evidence clearly showed that the plaintiff could no longer continue with his food farming and had lost his means of sustenance for the remainder of his working life, the judge did not consider him deserving of any compensation on this head. He said, “as far as loss of earnings is concerned, it will be difficult to say there has been a loss since the accident.” That being the way the judge looked at the matter, it is difficult to comprehend how years of purchase became a relevant factor in his quantification of the damages.
The judge used expressions strongly suggestive of the fact that he considered that the damages must necessarily be high. He said nothing which suggests that his duty was only to award such sum as was, in the circumstances, fair and reasonable. Thus he began a consideration of this aspect of the case by saying that “This is a case where substantial damages are called for.” He ended by stating that, “These are considerations in considering the damages which the plaintiff has suffered. It may properly involve a substantial sum of money.. .” He then proceeded to name the “substantial sum” as 015,000.00. That this is not a mere quibble, is shown by the large difference of 010,500. 00 between what I judge, on disclosed basis, to be fair and reasonable and the global sum, the judge assessed on no discoverable basis.
I think that in arriving at the figure of 015,000. 00 the judge applied a wrong principle of law and in any event, the sum awarded is so inordinately high as to be a wholly erroneous estimate of the damage. Accordingly, I consider that the damages should be reduced to 04,500.00. To that extent, I would allow the appeal.
JUDGMENT OF KINGSLEY-NYINAH J.A.
I agree.
JUDGMENT OF ANNAN J.A.
I also agree.
DECISION
Appeal Allowed.
L.F.A
