AKUFO v. ISSAKA [1966] GLR 476

Division: SUPREME COURT

Date: 13 JUNE 1966

Before: SARKODEE-ADOO C.J., AZU CRABBE AND OLLENNU

JJ.S.C.

CASES REFERRED TO

(1) British Transport Commission v. Gourley [1956] A.C. 185; [1956] 2 W.L.R. 41; 100 S.J. 12; [1955] 3 All E.R. 796; [1955] T.R. 303, H.L.

(2) Wise v. Kaye [1962] 1 Q.B. 638; [1962] 2 W.L.R. 96; 106 S.J. 14; [1962] 1 All E.R. 257, C.A.

(3) West (H.) & Son, Ltd. v. Shephard [1964] A.C. 326; [1963] 2 W.L.R. 1359; 107 S.J. 454; [1963] 2 All E.R. 625, H.L.

(4) Baiden v. Solomon [1963] 1 G.L.R. 488, S.C.

NATURE OF PROCEEDINGS

APPEAL against the award of damages in a running down case in which both legs of the plaintiff had to be amputated. The facts are sufficiently stated in the judgment of Ollennu J.S.C. COUNSEL Victor Owusu (with him Bonsu) for the appellant.

B.J. da Rocha for the respondent.

[p.477] of [1966] GLR 476

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. The appellant, who will henceforth be referred to as the plaintiff, a motor driver by trade, was knocked down at Kumasi, on 1 September 1960, by a motor vehicle owned by the respondent, hereinafter referred to as the defendant; the accident resulted in the amputation of his two legs leaving a short stump in each case. He attributed the cause of the accident to the negligence of a driver of the defendant, then in charge of the defendant’s vehicle; the plaintiff accordingly instituted these proceedings claiming £G15,000 damages. Service of the writ of summons with a statement of claim attached thereto, was effected upon the defendant, but not upon his driver. The defendant entered appearance but defaulted in filing a statement of defence within the statutory period, and the plaintiff thereupon obtained an interlocutory judgment against him. Although he obtained leave to file a statement of defence out of time and did file one, the defendant eventually elected not to proceed with the defences he raised; consequently the interlocutory judgment was not discharged, and the trial proceeded solely on the issue of quantum of damages.

The only evidence adduced in respect of the sole issue before the court below is that given by the plaintiff himself, which is very short. The relevant parts of it given in his evidence-in-chief are as follows: “On 1 September 1960 I was injured by a lorry belonging to the first defendant and driven by the second defendant. As a result of this injury both my legs were amputated at the Central Hospital, Kumasi. I was admitted in hospital on 1 September 1960. I was discharged from the hospital in January 1961. Before the accident I was a lorry driver. I was then driving a bakery lorry belonging to Zakours. My salary was £G10 16s. per month. I obtained my driving licence in June 1959. While I was in hospital, I received my full pay for the first month. Thereafter I received half pay until discharge. Since my discharge from hospital I have done no work. I have not earned any income since. Apart from driving I know no other work. I have a wife and two children, a boy and a girl. I have never been to school.

Before the accident I played football. I belonged to a team known as Young Hearts at Adeiso. I was a goalkeeper. I did not receive any wages. We played as amateurs. I claim £G15,000.” His evidence in full under cross-examination is as follows:

“I received from the Labour Department £G728 9s. 7d. As a result of the order of this court I have paid back into court

[p.478] of [1966] GLR 476

£G695. I consulted a doctor about fitting an artificial leg. Measurements have been taken but I have heard nothing since.”

And in an answer to the court he said, “I understand I had to pay £G52 7s. 6d. to have both limbs fitted but owing to the pendency of this case I have not had time to see about it.” With that answer he closed his case. Counsel for the defence offered no evidence.

In his address, counsel for the plaintiff directed the attention of the trial judge to the basis of assessment of damages in injury cases as can be gathered from some judgments in English cases in Kemp and Kemp, The Quantum of Damages (1st ed.), pointing out that the actual financial loss to the plaintiff at the date of judgment is £G295 7s. 6d. and the estimated cost of fitting the plaintiff with artificial limbs is £G52 7s. 6d.

Counsel for the defendant in a very fair and admirable manner outlined to the trial judge the basis of assessment of damages in cases of injuries as summarised in Kemp and Kemp (supra), Vol. I, pp. 41–42; he also cited British Transport Commission v. Gourley1 where after considering other authorities on the point the House of Lords set out the heads which should be taken into consideration in assessing general damages; these are:

(a) actual pecuniary loss of income for remaining working life,

(b) pain and suffering,

(c) loss of other necessaries,

(d) inconvenience for rest of life, and

(e) possible loss of expectation of life.

It is evident from his decision that the learned trial judge gave most anxious consideration to the whole case and addressed himself specifically to each of the heads of damages outlined above; in the end he awarded the plaintiff £G4,750 damages.

Against that award, the plaintiff appealed on the ground that “the damages awarded to the plaintiff are inadequate having regard to the circumstances of the case and to the evidence on record.” Learned counsel for the plaintiff did not quarrel with the heads of damages which were considered by the learned trial judge. His complaint is that the learned trial judge erred in not fixing separate amount of damages under each head, but rather considered all the heads together and made a comprehensive award. He argued that if the learned trial judge had assessed damages in respect of each head, the total of the separate awards would most probably have far exceeded the aggregate award of £G4,750. As a guide to the quantum

[p.479] of [1966] GLR 476 of damages which fit the separate heads in this type of case, counsel cited Wise v. Kaye2 and West (H.) & Son, Ltd. v. Shephard.3

Learned counsel for the defendant submitted that since the law on the point is not in dispute the only questions the court has to resolve are (a) were the right principles applied, and if they were (b) is the award made manifestly low? He contended that learned counsel for the plaintiff, by his submissions, in fact admitted that the right principles were applied. On the question as to whether the figure was manifestly low, counsel cited the case of Baiden v. Solomon,4 where the court discussed the principle by which an appellate court is guided in deciding whether or not to increase or reduce an amount of damages awarded for injury by a trial court.

That the learned trial judge applied the right principles and properly directed himself on the relevant issue is shown in the following extracts from his judgment:

“Mr. Aboagye for the plaintiff while leaving the question of damages to me has asked that it should be substantial. Mr. Davey for the defendant has with admirable fairness given me a useful review of the matters which I ought to take into consideration in assessing damages in favour of the plaintiff, namely, the possible loss of income for the remainder of his working life, his obvious pain and suffering, the loss of amenities of life, the inconvenience and discomfort that the plaintiff would suffer for the rest of his life by being bereft of his two legs. Quite frankly, I do not find it easy to put a pecuniary value on these matters and I echo the difficulty which judges before me have expressed when confronted with a similar task. Both counsel have referred me to Kemp and Kemp, a rather invaluable handbook on these matters. I have looked at it and have seen the damages awarded by the courts in England for injuries very similar to those suffered by the plaintiff. I have also myself referred to Munkman’s Damages for Personal Injuries and Death. The damages awarded by different judges in fairly comparable cases vary widely and nothing like a pattern can be said to emerge. This merely underlines the fact that assessment of damages in matters of this sort is essentially a matter of impression and common-sense. In the end, the question which I have to answer is ‘What is a fair and reasonable compensation to award to this rather young man who is certainly grossly handicapped by the permanent disabilities of

[p.480] of [1966] GLR 476 amputation?’ I take into account all those matters which Mr. Davey has fairly and properly asked me to take into consideration and in addition thereto, the present-day decline in the value of money. On the other side of the picture, I do not forget that the plaintiff would be fitted with artificial limbs and may then get along a great deal better than at present and with luck, might get some unskilled sedentary work.” Having so directed himself he concluded: “Doing the best I can, and taking all those factors into consideration, the lump sum figure at which I ought to arrive is £G4,750.”

It is open to a court in fixing damages in a case like this to apportion the amount among the various heads as was done in the two cases cited by learned counsel for the appellant; it is also open to a court after considering the various heads to fix a lump sum to cover all the heads. Whether a trial court fixes the lump sum and later apportions it to the various heads, or fixes the damages for each head and finally adds the several figures up, is really immaterial. What is important is that a trial court should apply the right principles in arriving at the quantum commensurate with the case. When it is shown that the right principles have been applied a court of appeal will not interfere with the amount awarded to increase or reduce it according to the view it would take of the matter if it were trying the case, it will only interfere where it is manifestly or fantastically too low or too high. Stating this principle in Baiden v. Solomon5 the court said:

“The general principles which the appellate court should apply in determining this question are now well settled. Whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would itself have awarded a different figure if it had tried the case at first instance. Even if the court of first instance was a judge sitting alone, as in this case, then, before this court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.” Applying the same principle, the House of Lords in West (H.) & Son, Ltd. v. Shephard6 dismissed the appeal against damages;

[p.481] of [1966] GLR 476

Lord Morris of Borth-y-Gest, concluding his opinion in that case said:

“My lords, the figure of £17,500 may seem high but I am not persuaded that the learned judge who fixed it and those who approved of it are shown to have been in error. I ought not to differ from them unless I am persuaded that they have awarded or allowed a figure which is shown to be unreasonable and excessive and out of proportion having regard to the injuries sustained. I ought not to overrule their discretion and their act of judgment unless I am so satisfied. As I am not, I would dismiss the appeal.”

We have seen the appellant carried into court and have felt great sympathy for him, but we cannot allow our sympathies to run away with us, we must go by the principles laid down above. The learned trial judge, as earlier shown, did not apply any wrong principle of law; and it has not been shown that he left some relevant matter out of account or that he took some irrelevant matters into account in assessing damages. We cannot accept the submission of learned counsel for the plaintiff that if the learned trial judge had adopted the procedure of fixing an amount for each of the various relevant heads of consideration the total would have been much larger than the lump figure of £G4,750. And from the evidence on the record and all the circumstances of the case we do not think that the amount of £G4,750 is ridiculously low.

We have therefore come to the conclusion that the appeal must be dismissed, and it is accordingly dismissed with costs.

DECISION

Appeal dismissed.

E. D. K.