HIGH COURT, CAPE COAST
Date: 25 MARCH 1974
EDWARD WIREDU J
CASES REFERRED TO
(1) Roach v. Yates [1938] 1 K.B. 256; [1937] 3 All E.R. 442; 107 L.J.K.B. 170; 81 S.J. 610, C.A.
(2) Forrest v. Sharp (1963) 107 S.J. 536.
ACTION for damages for personal injuries. The facts are fully set out in the judgment.
COUNSEL
K. A. Sarpong for the plaintiff.
No appearance by or on behalf of the defendant.
JUDGMENT OF EDWARD WIREDU J
The plaintiff, Justice Opoku-Darkwa, aged 25 years, is a post secondary school teacher earning 040.00 a month. He was, prior to the events giving rise to his present action against the defendant, teaching at Asuboi. The evidence shows that he was an active footballer and the sportsmaster of his school.
On or about 25 March 1973, he travelled as a fare paying passenger on vehicle No. GF 7188, owned and driven at that material time by the defendant, from Amoafo to Barko when, in the course of the journey, the vehicle went off the road and landed in a ditch causing one of the most serious personal injuries to him for which he received medical treatment
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at the Agogo Hospital. His injuries have made it necessary that he should receive constant nursing and attention day and night for the rest of his life for the injuries he sustained have now confined him permanently in bed, incapable of doing anything by himself.
On 13 December 1973, he brought the present action against the defendant claiming damages for personal injuries and consequential loss and expenses sustained by him. He attributed the cause of the accident to the negligence of the defendant. In his statement of claim the plaintiff pleaded inter alia the following:
“(3) On or about 25 March 1973, and on the Asuboi-Atiemo motor road, the defendant so negligently drove, managed and controlled his said vehicle No. GF 7188 that it went off the road and landed in the bush.
(4) Particulars of Negligence
(i) Failing to maintain vehicle.
(ii) Driving at an excessive speed.
(iii) Driving without due care and attention.
(iv) Going off course.
(v) Failing to stop, slow down, swerve or in any way to control the said vehicle so as to avoid landing the said vehicle in the bush.
(5) The plaintiff states that as an alternative plea, he will rely on the doctrine of res ipsa loquitur to establish the negligence of the defendant.
(6) In consequence of the defendant’s negligence complained of above, the plaintiff sustained some serious physical injuries to his body.
Particulars of Injuries
(i) Compression fracture with dislocation of the first lumbar vertebra.
(ii) Total paralysis of the lower limbs with incontinence of urine and faeces.
(iii) Facial lacerations and abrasions.
(7) As a result of the injuries sustained, the plaintiff was admitted at the Agogo Hospital for nearly two months and was later released without any improvement in his condition.
(8) The plaintiff has become a total wreck after his release. He is unable either to stand up or sit up and has suffered pain and lost all amenities of life.”
On 25 February 1974, the plaintiff obtained an interlocutory judgment against the defendant, who failed to enter an appearance to the writ accompanied by a statement of claim, which was served on him as proved by the serving bailiff. The responsibility for the accident was therefore not an issue for trial which was confined solely to the assessment of the damages. Even though the defendant was served with notice to attend to contest the assessment he was absent during the hearing and no explanation was offered for his absence.
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The injuries sustained by the plaintiff in the accident are principally injuries to the lower part of the body and from my personal observation of the plaintiff at the hearing he had been paralysed from the waist down. Exhibits C, D and E, the medical reports issued on the plaintiff from Agogo Hospital and Cape Coast Central Hospital, agree with the condition in which I saw the plaintiff. Exhibit E, the latest report, stated the plaintiff ‘s present complaints as follows:
“(1) Unable to walk or stand;
(2) Incontinence of urine;
(3) Incontinence of stool;
(4) Lower limbs have withered;
(5) No sensitivity in either leg up to the lower abdomen (waist region).”
Dr. Jones, the surgical specialist attached to Cape Coast Central Hospital, concluded his findings as follows:
“Opoku-Darkwa was involved in a road traffic accident on 25 March 1973, near Obogu, which was no fault of his own. He was severely injured (fracture of a vertebra). This has resulted in a paraplegia from which he can never recover. In addition he has been left with incontinence of urine and stool. He will be a burden to his family inasmuch as he will constantly need the attention of two or three people to care for him. I assess the degree of permanent physical incapacity to be 90 per cent and disfigurement to be 10 per cent.”
As a consequence of his injuries he is now incapable of sitting or standing up. He is incapable of moving any part of his body except the arms and the turning of the head sideways which be does with some pains at the back. He suffers incontinence of urine and faeces and sexual impotence. He was carried to court on a stretcher by three attendants. He testified that he could only detect the urine and the faeces from their scent. He gave his evidence before me in English and showed a great alertness of the mind. He expressed some deep mental worry about his present plight which has brought his ambition to pursue higher studies to become a veterinary officer to a sudden end. He is married with one child and lamented over his inability to live a normal life again.
He cannot be left alone and according to Dr. Jones who examined him on 11 March 1974, he would need not less than two continual attendants night and day. He is permanently and totally incapacitated from doing any form of work. There is an absence of communication between the brain and the lower part of his body. The last medical report issued on him from the Agogo Hospital puts his total incapacity at 100 per cent permanent disability whilst the one issued by Dr. Jones puts his present physical disability at 90 per cent, but one thing common with all the reports is that he is a total wreck incapable of doing anything by himself.
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Dr. Jones who testified before me on 15 March 1974, pointed out three possible factors which may seriously reduce his expectation of life, namely, the possibility of developing a urinary infection which may result in a kidney failure; and withering away of the muscles of the lower limbs; and the probability of the development of bed sores on the body. The normal expectation of life of a healthy man of his age according to him is about 40 years. But the doctor thinks this has been reduced to between ten to fifteen years or even shorter. The doctor says further that the fractured lumbar vertebra is tender, delicate and painful and does not think it safe to recommend any further treatment because, firstly, no further treatment can improve his present condition and secondly because any attempt to operate on the fracture again is likely to set in other complications. He however felt the lower limbs could be fitted with orthopaedic limbs which would only help to keep the limbs from not hanging otherwise they have no other effect. Thus for the injuries and now to damages.
As I have said earlier the plaintiff was at the time of the accident earning 0480.00 annually with a yearly increment which the plaintiff was unable to tell me. He however stated that they have been awarded twenty per cent temporary increase and hoped the final award would be higher than that. The cost of his illness and loss of wages down to the present time are not in dispute. In addition, I have to determine as well as I can what should be awarded him as compensation.
In Roach v. Yates [1938] 1 K.B. 256 the Court of Appeal gave the following guidelines in assessing damages for personal injuries similar to those suffered by the plaintiff as stated inter alia, in the headnote at p. 256:
“(i) . . . his pecuniary losses and expenses down to the date of the action . . .;
(ii) . . . his prospective loss of wages . . .;
(iii) . . . nursing attendance, a sum sufficient to cover a reasonable weekly payment for that purpose during the period of his life as shortened by the accident . . . ; and
(iv) . . . his past and future physical and mental pain and suffering, and the shortening of his life, a sum, in estimating which the following consideration should be kept in view, namely, that no amount of money, however large, could fully compensate the plaintiff for these injuries, and that the most that could be done was to award him such compensation as was reasonable in all the circumstances of the case . .
I intend to adopt this method of assessment. The case of Forrest v. Sharp (1963) 107 S.J. 536 affords a useful guide: see Bingham’s Motor Claims Cases (5th ed.) at p. 412. Firstly, loss of earnings: from date of accident to date of trial at 040.00 per month; this comes to 0520.00. Medical and other actual expenses incurred: medical expenses 053.00. In addition, evidence was produced that he had to be carried in a hired car from the place of accident to the Agogo Hospital, and from the
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hospital to his home-town on his discharge which totalled up to 070.00. In addition, the family hired a room in Agogo town at 04.00 a month for three months in order to attend the patient. This came up to 012.00. There was a further claim for 0400.00 being incidental expenses such as putting the plaintiff on special diet, provision for new clothing, etc. I think I will award a sum of 0350.00 for medical and other expenses incurred. Thirdly loss of future earnings for ten years, the probable life span, at 0480. 00 per annum plus the 20 per cent increase. This comes to 05,760. Fourthly, nursing attendance for ten years at 0120.00 per month for two attendants, this also comes to 014,400. 00.
Finally general damages. This is the most difficult item. The plaintiff ‘s present condition is the worst that can happen to any human being and it is the worst type of handicap that has ever come before this court. Under this head are such items as pain and suffering, loss of amenities, mental agonies and suffering for having to live the rest of his life a disabled man, physical disabilities, loss of expectation of life, and the inflationary effect on the purchasing power of the cedi. I will award a round sum of 027,000. 00 under this head as just and reasonable.
The plaintiff s entitlement in a nutshell runs as follows:
Pre-trial loss of earnings…………….520.00
Medical expenses, etc………………350.00
Future loss of earnings for ten years at 0480 plus 20 per
cent increase……………………5,760.00
Nursing attendants for two nurses at 060.00 per month
for a nurse for ten years…………….14,400.00
General damages………………..27,000.00
Total ……………………048,030. 00
There will therefore be judgment for the plaintiff in the sum of 048,030. 00 damages. Costs assessed at 03,750. 00.
DECISION
Judgment for the plaintiff.
T.G.K.
