COURT OF APPEAL, ACCRA
Date: 3 JUNE 1975
AMISSAH JIAGGE AND KINGSLEY-NYINAH JJA
CASES REFERRED TO
(1) Haygarth v. Grayson, Rollo & Clover Docks, Ltd. [1951] 1 Lloyd’s Rep. 49, C.A.
(2) Kru v. Saoud Bros. & Sons [1975] 1 G.L.R. 46, C.A.
(3) Armah v. Quansah [1975] 2 G.L.R. 285, C.A.
NATURE OF PROCEEDINGS
APPEAL against quantum of damages for personal injuries. The facts are sufficiently set out in the judgment of Amissah J.A.
COUNSEL
Brodie-Mends for the appellant.
K. A. Sarpong for the respondents.
JUDGMENT OF AMISSAH J.A.
The appellant (hereafter referred to as the defendant) in these consolidated cases, appeals against the assessment of damages made by Edward Wiredu J. upon holding that the defendant, as a successor, was vicariously liable for injuries sustained by the respondents (hereafter referred to as the plaintiffs) as a result of the negligence of the defendant’s predecessor’s driver. The learned judge’s decision on the issue of liability is not questioned in this appeal.
Both plaintiffs were riding on a lorry at the material time when it came into collision with the vehicle driven by the defendant’s driver. Although other injuries were sustained by both plaintiffs, about the most serious injury to each was an injury to the right arm resulting in its loss of use. And it was mainly in respect of this injury that the damages were awarded.
The difficulty in awarding fair compensation for personal injury has often enough been confessed by the courts. It is nevertheless a task which judges are frequently called upon to perform. Within the limitations which human fallibility imposes, the judges strive manfully, honestly and painfully to make their assessments. In a matter indisputably recognised as one of opinion, no two judges faced with the same situation would arrive at exactly the same figure. Yet there is a natural yearning that the disparity between the figure each should arrive at should not be too great when compared with that arrived at by the other. The authorities say so. The records of the courts show how difficult it is in this area to apply principle to practice. It has been said that an appellate court is as entitled as a trial judge sitting alone to assess the damages which it thinks proper to award on the facts found. But if an appellate court is to interfere with the assessment of a trial judge it must be because the judge has proceeded on a wrong basis or has incorrectly applied or failed to apply a principle or because the award is so excessive that it cannot represent a true estimate of the loss suffered by the plaintiff. Otherwise where opinion is merely substituted for opinion without justification in principle, the judge’s authority to estimate damages will be undermined and he may as well
[p.426] of [1975] 2 GLR 424
leave the question of damages to be fixed each time according to the opinion of the final appellate court.
The learned judge’s statement of the law by which he intended to be guided in the case before us was derived from Asquith L.J.’s enumeration in Haygarth v. Grayson, Rollo & Clover Docks, Ltd. [1951] 1 Lloyd’s Rep. 49 at p. 52, C.A, of the three factors which at least had to be taken into account in these matters, namely, (a) prospective loss of earnings, (b) pain and suffering and (c) loss of amenities. Then he proceeded as follows:
“I intend to adopt the above observations but with the following modifications. The first leg will be actual loss of earnings. Secondly, pain and suffering including inconvenience, discomfort and deformity. Thirdly, future loss of earnings including pecuniary loss in the form of future expenses likely to be incurred as a result of the accident and finally where the facts justify, handicap and disadvantages in the labour market.”
The judge no doubt extended the heads of damage enumerated in the case upon which he relied because that authority had stated that those three heads given were heads which had at least to be considered. Presumably, therefore, there was no impediment to the addition of other heads provided they were all valid and reasonable. Of the heads of damage given, the one which would immediately appear quite strange is the handicap and disadvantage in the labour market when considered in relation to the other heads admitted. And the legitimacy of its inclusion can be assessed by an examination of how the judge applied the law that he had adopted to the facts of these cases.
He took first the case of the first plaintiff, Kwame Amfo, a young man of about 30 years and a self-employed farmer who before the accident was earning about 0720.00 per year. Amfo’s injury was declared by the doctor selected by the defendant to examine him to infect him with a 60 per cent disability to the arm. At the time of the judgment, Amfo had not worked on his farm for three and a half years and there was no prospect of him doing so. His right arm was completely useless but the doctor thought that there may be a partial restoration if he underwent an operation. For actual loss of earnings which the judge calculated as one-third of the gross income from 0720.00 for three and a half years, 0840.00 was awarded. Against this figure the defendant offers no complaint. But he does complain about the others as being unduly high.
For pain and suffering, the learned judge awarded 02,750.00. In arriving at this figure he took into account the obviously considerable pain which Amfo had suffered and continues to suffer; the fact that it might remain with him for the rest of his life. He here mentioned the permanent deformity of the right arm, inconvenience and discomfort during sleep arising out of pains in the shoulder joint and the mental distress Amfo would have to suffer for the rest of his life from having to live as a deformed person. Mr. Brodie-Mends, counsel for the defendant, does not complain of a violation of principle in the assessment of this
[p.427] of [1975] 2 GLR 424
award. But in line with his general complaint that the awards were excessive, he asks that the sum of 02,750.00 here be reduced to 02,000.00. In the absence of any point of principle, I would be loath to reduce the judge’s award as requested. The level to which we are asked to go does not in itself support a contention that the original award was so excessive as not to represent a genuine and proper estimate of the plaintiff s loss on this ground. There is no reason why counsel’s estimation should be preferred.
Under the head of loss of amenities the award was 1,000.00 which the learned judge said was “for a diminution in the full pleasures of life.” Mr. Brodie-Mends has submitted that for this we should substitute 500.00 and relied for his submission upon the recent decision by this court in Kru v. Saoud Bros. & Sons [1975] 1 G.L.R. 46. That was a case in which this court awarded 250.00 for loss of amenities of life which a middle-aged man of 54 had suffered through an injury to his waist which the court concluded had contributed to the impairment of his sexual activity since the accident. It is not clear whether counsel adopted the figure he proposed because he saw in the award in Kru v. Saoud Bros. & Sons an award under the same head of loss in a comparable case. He certainly thought that the higher figure should be given in this case on account of the plaintiff s comparative youth. If the awards are being put forward as founded in comparable cases, then one can only say that apart from the fact that the plaintiff in the Kru case and Amfo in this suffered injury as a result of negligence arising out of a motor accident, and that they are both rural folk, the two cases can hardly be described as comparable. The plaintiffs’ ages are different; the nature of their injury is different. The figure awarded in that case was no doubt determined by factors peculiar to it as is evident from the passage in the judgment which said at p. 51, “There is no evidence of the plaintiff s mode of life, his pastime or what pleasures he indulged in which the accident deprived him of. It is certainly not the case of a man who knows how to enjoy life and has lost it by reason of the accident.” The only loss which could be subsumed under this head of damage in that case was the impairment of sexual activity which the doctor could not confirm but which the court concluded from other evidence had been contributed to by the accident. The court must have found it difficult to say by how much because as it stated it was unable to say how much the impairment had been contributed to by advancing years. Perhaps some indication of the extent of his loss may be derived from the subsequent award by this court in the case of Armah v. Quansah [1975] 2 G.L.R. 285, C.A. where judgment for 1,000.00 was given on 21 April 1975 for loss of amenities to a 50 year old farmer who had suffered a complete loss of sexual power as a result of an accident. Be that as it may, in this case, the loss complained of is the use of an arm. And, whatever the life style of the person affected the loss of a right arm to a right-handed person, as the first plaintiff is, must diminish his enjoyment of life considerably. For this loss suffered by a man aged 30 years, I do not think the sum of 1,000.00 under this head of damage is excessive.
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Finally, there was an award of 04,550.00 for “physical disability.” When the judgment is looked at more closely, this is no more than damages for prospective loss of income and is accordingly a legitimate head of damage. Mr. Brodie-Mends has submitted that this head could reasonably attract 03,000.00. The judge avoided any attempt at a mathematical calculation of factors which would go to make up this head but he did state the factors he took into account. Once again no point of principle is here raised and I am not convinced that the amount awarded is excessive. In the circumstances I would not disturb the award.
Having dealt fully with the case of Amfo, the learned judge quite properly dealt with that of Yaw Okyiri more summarily, it being understood that the principles applicable were the same. He was a boat builder with an average annual income of about 0270.00 a year. He is now 27 years old. The doctor assessed his disability arising out of the injury to his right arm as 65 per cent. He was awarded 0945.00 for actual loss of earnings about which no complaint is made; then 01,500.00 for pain and suffering, which counsel ask us to reduce to 01,000.00 and 0900.00 for loss of amenities which we are also asked to reduce to 0500.00. Then there was an award of 06,500.00 for physical disability which according to counsel should be reduced to 05,000.00. For reasons already given, I do not think a case has been made out for a reduction of the learned judge’s awards.
There was, however, an additional sum of 01,000.00 given in this case by the judge for “handicap and disadvantages in the labour market.” I am not absolutely sure what this means but it appears that it was included because unlike Amfo, Okyiri was not self-employed. The learned judge said he added this head “in view of the fact that he was not self-employed and the prospects of improving on his earnings were quantum [sic] in his case and he could easily have sought for a new vocation should he fail.” Mr. Brodie-Mends submits that the allowance of this head of damage was wrong. If it was legitimate, it ought to apply to everybody. Nobody can be forever classified as either self-employed or otherwise. Today’s self-employed could be tomorrow’s employee of another and vice versa. If that head of damage is good for Okyiri, it should be good for Amfo and if it is bad for Amfo it should be equally bad for Okyiri. He accordingly submitted that the figure awarded under this head should be struck out. I find this argument irrefutable and accept it. I would therefore in the case of Okyiri strike out the award of 01,000.00 for “handicap and disadvantages in the labour market” and thereby reduce the damages awarded him by that sum. I would accordingly vary the judgment to that extent. Otherwise, I would dismiss the appeal.
JUDGEMENT OF JIAGGE J.A.
I agree.
JUDGMENT OF KINGSLEY-NYINAH J.A.
I also agree.
DECISION
Appeal dismissed.
Judgment varied.
