COURT OF APPEAL
DATE: 27 NOVEMBER 1967
BEFORE: AZU CRABBE, APALOO AND LASSEY JJ.A.
CASES REFERRED TO
(1) Bonnington Castings Ltd. v. Wardlaw [1956] A.C.613; [1956] 2 W.L.R. 707; [1956] 1 All E.R.
615; 100 S.J. 207; 54 L.G.R. 153; sub nom. Wardlaw v. Bonnington Castings 1956 S.C. (H.L.)26; 1956 S.L.T. 135.
(2) Lewis v. Denye [1940] A.C. 921; [1940] 3 All E.R. 299; 109 L.J.K.B. 817; 163 L.T. 249; 56
T.L.R. 900; 84 S.J. 476 H.L.
(3) Smith v. Baker (Charles) & Sons [1891] A.C. 325; 60 L.J.Q.B 683; 65 L.T. 467; 55 J.P. 660; 40
W.R. 392; 7 T.L.R. 679, H.L.
(4) Wilsons & Clyde Coal Co., Ltd. v. English [1938] A.C. 57; [1937] 3 All E.R. 628; 106 L.J.P.C.
117; 157 L.T. 406; 53 T.L.R. 944; 81 S.J. 700, H.L.
(5) Clifford v. Challen & Son, Ltd. [1951] 1 K.B. 495; [1951] 1 T.L.R. 234; [1951] 1 All E.R. 72,C.A.
(6) Woods v. Durable Suites, Ltd. [1953] 1 W.L.R. 857; [1953] 2 All E.R. 391; 97 S.J. 454; 51 L.G.R.
424,C.A.
(7) Wright v. Beckett (1833) 1 M. & Rob. 414; 174 E.R. 143.
(8) Ewer v. Ambrose (1825) 3 B. & C. 746; 107 E.R. 910.
(9) Caswell v. Powell Duffryn Associated Collieries, Ltd. [1940] A.C. 152; [1939] 3 All E.R. 722; 108
L.J.K.B. 779; 161 L.T. 374; 55 T.L.R. 1004; 83 S.J. 976. H.L.
(10) Harris v. Brights Asphalt Contractors, Ltd. [1953] 1 Q.B. 617; [1953] 1 W.L.R. 341; [1953] All
E.R. 395; 97 S.J. 115; 51 L.G.R. 296.
(11) Davies v. powell Duffryn Associated Collieries, Ltd. [1942] A.C. 601; [1942] 1 All E.R. 657; 111
L.J.K.B, 418; 167 L.T. 74; 58 T.L.R. 240; 86 S.J. 294, H.L.
(12) West (H.) & Son, Ltd. v. Shephard [1964] A.C. 326; [1963] 2 W.L.R. 1359; [1963] 2 All E.R. 625; 107 S.J. 454, H.L.
(13) Phillips v. South Western Railway Co. (1879) 4 DQ.B.D. 406; 48 L.J.K.B. 693.[p.660] of [1967] GLR 657
(14) Haygarth v. Grayson, Rollo & Clover Docks, Ltd. [1951] 1 Lloyd’s Rep. 49, C.A.
(15) Rowley v. London & North Western Railway Co. (1873) L.R. 8 Ex.221;29 L.T.180; 42 L.J.
Ex.153; 21 W.R. 869.
(16) British Transport Commission v. Gourley [1956] A.C. 185; [1956] 2 W.L.R. 41; [1955] 3 All E.R.
796; 220 L.T. 354; 100 S.J. 12; 49 R. & I.T. 11; [1955] 2 Lloyd’s Rep. 475;[1955] T.R. 303; 34
A.T.C. 305, H.L.
(17) Phillips v. London & South Western Railway Co. (1879) L.R. 5 C.P.D. 280; 49 L.J.C.P. 233; 42
L.T.6.
(18) The Mediana [1900] A.C. 113; 69 L.J.P. 35; 82 L.T. 95; 16 T.L.R. 194; 48 W.R. 398; 44 S.J. 259;
9 Asp M.L.C. 41, H.L.
NATURE OF PROCEEDINGS
APPEAL against a finding of liability and quantum of damages for personal injuries. The facts are fully stated in the judgment of Azu Crabbe J.A.
COUNSEL
Akyea-Djamson for the appellants.
Boakye for the respondent.
JUDGMENT OF AZU CRABBE J.A.
On or about 10 march 1964, the respondent, (hereinafter referred to as the plaintiff), who was employed as a cleaner by the appellants (hereinafter called the defendants), was injured while cleaning a revolving or rotatory machine at the defendant’s factory in Kumasi. The medical evidence for the plaintiff showed that the plaintiff had a severe compound fracture (crash injury) of the right hand, amounting virtually to traumatic amputation of the right hand above the level of the wrist joint. This injury necessitated surgical amputation of the right hand above the level of the wrist joint.
There were also lacerated wounds involving the index and the middle fingers of the left hand which had been permanently deformed, and this would interfere with his capacity to grip objects or things. Permanent disability was estimated by the medical witness at 45 per cent plus ten per cent disability due to the injury to the left hand—a total of 55 per cent permanent incapacity. The plaintiff’s action against the defendants was for damages for breach of common law and statutory duty to provide a safe system of work at the defendants’ factory whereby, the plaintiff suffered the injuries described above whilst cleaning a power-operated and weaving machine at the factory. The plaintiff alleged that the machine was a dangerous machine. The defendants denied that the machine was dangerous, but whilst not denying that the plaintiff suffered
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injuries, they put the plaintiff to strict proof of the extent of the injuries sustained by him. The defendants further averred that the plaintiff was himself negligent, or alternatively that the plaintiff was guilty of contributory negligence.The issues settled and agreed to be tried were:
(i) Whether or not the defendants were in breach of the common law duty of providing a safe system of work for the plaintiff;
(ii) Whether or not the defendants were negligent for not taking adequate precautions for the safety of the plaintiff while engaged on the said work;(iii) Whether or not the plaintiff contributed to the said accident by his negligence;
(iv) Whether or not the defendants were in breach of statutory duties as imposed by sections 20, 21 and 22 of the Factories Ordinance, 1952 (No. 33 of 1952).
In principle, there seems to be no distinction between actions for common law negligence and actions for breach of statutory duty, for a pursuer or plaintiff must prove not only negligence or breach of duty, but that the fault of the defendant caused or substantially contributed to his injury. If I may quote the words of Lord Tucker in Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613 at pp. 624-625, H.L.: “No distinction can be drawn between actions for common law negligence and actions for breach of statutory duty in this respect. In both the plaintiff or pursuer must prove (a) breach of duty and (b) that such breach caused the injury complained of. (See Wakelin v. London & South Western Railway Co. ((1886) 12 App.Cas. 41) and caswell v. Powell Duffryn Associated Collieries Ltd. [1940] A.C. 152). In each case it will depend upon the particular facts proved and the proper inferences to be drawn therefrom whether the pursuer has sufficiently discharged the onus that lies upon him”. Delivering his judgment in the House of Lords in Lewis v. Denye [1940] A.C. 921 Viscount Simon L.C. at pp. 924-925, H.L. observed: “this House has decided in Lochgelly Iron and Coal Co., Ltd. v. M’Mullan [1934] A.C. 1), that a breach of statutory duty imposed as a protection to workmen against injury is, for the purposes of an action for damages, equivalent to negligence, so this alternative way of stating the claim need not be separately considered”.
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The following statement of the facts are taken from the judgment of the trial judge: “The plaintiff, a young man of about 21 years, was employed by the defendants on or about 11 November 1963. The business of the corporation is the manufacture of fibre bags in Ghana. The defendants have quite naturally machines in their premises for their business. The plaintiff was employed as a cleaner of the machines; the name of the machine on which the incident happened is called “finisher cards’ machine. According to the plaintiff when he was engaged, the defendants told him how the work was going to be done, i.e the machine should be cleaned in the same way as the old employees were doing. The method of cleaning the machine, as he found the other employees do, and which he did, was that a “broom’ supplied by the defendants was used. The broom was held by the employee – (the plaintiff) against the rollers of the machine-and-as the rollers rotate, the pieces of fibre (or dirt) are removed -this was done whilst the machine was in motion. Barely about five weeks after he was employed, i.e. on 18 December 1963, in the morning he was in the course of cleaning the `finisher cards’ machine in the manner described above. On his left was the plaintiff’s fourth witness, Daniel Aboagye, and on his right were Danso and Atiamo. As the broom was short he held the middle part with his right hand and held the end towards him with his left hand. He held the broom against the roller. All that he saw was that the machine had caught the broom from his grip and the right hand first then the left hand later both became entangled in the machine. He bled and became unconscious. He spent about five weeks in hospital with his mother bathing him. The plaintiff was a right-handed person. As a result of the incident the plaintiff cannot write with his right hand. On behalf of the defendants, the mechanical superintendent and another employee – a cleaner, Gabriel Asante Osei, gave evidence. The stand of the defendants was that the general procedure of cleaning of the machines was that the machines were not to be cleaned whilst in motion – the machines are: `finisher cards’, `brakercard’ and `drawing machines’. The `finisher cards’ machine, as the plaintiff said, was involved in this case. After the plaintiff was shown round to see the machines, Mr. Kuntoh instructed the plaintiff never to clean the machine when it was in motion. The rolls of jute should be taken from the `roll former’, then the pieces left in the machine are run for the saliva to come out – the machine is then switched off and then rollers are turned by hand to be cleaned. `Pickers’ are used to
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remove the jute around the rollers and later on, ‘broom’ or ‘bristle’ is used to remove the dirt. There are supervisors including Mr. Kuntoh himself going round to supervise all the cleaners of the machines.”
The main question in this case is whether the defendants fulfilled their duty towards the plaintiff. What then is that duty? In answering this question I can do no better than quote the following words of Lord Herschell in Smith v. Charles Baker & Sons [1891] A.C.325 at p. 362, H.L.: “It is quite clear that the contract between employer and employed involves on the part of the former the duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk”.
That duty was again stated by Lord Maugham in Wilsons & Clyde Coal Co., Ltd. v. English [1937] 3 All E.R. 628 in these words at p. 645, H.L.: “The third, which is a kind of limitation or explanation of the second, is that, in the case of employments involving risk, that rule applies only when the maxim volenti non fit injuria can fairly be invoked. In such employments, it was held that there was a duty on the employer to take reasonable care and to use reasonable skill, first, to provide and maintain proper machinery, plant, appliances, and works; secondly, to select properly skilled persons to manage and superintend the business; and thirdly, to provide a proper system of working”.
As regards the claim for breach of statutory duty the learned trial judge held, and rightly in my view, that the only provision of the Factories Ordinance, 1952, applicable to this case is section 28. This section reads:
“No person shall be employed at any machine or in any process, being a machine or process liable to cause bodily injury, unless he has been fully instructed as to the dangers likely to arise in connection therewith and the precautions to be observed, and –
(a) has received a sufficient training in work at the machine or in the process; or
(b) is under adequate supervision by a person who has a thorough knowledge and experience of the machine or process”.
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The declared object of the Factories Ordinance, 1952, is to make provisions for the health, safety and welfare of persons employed in factories and other places. The nature of the statutory duties that an employer is required to perform was indicated by Denning L.J. (as he then was) in his judgment in Clifford v. Challen & Son, Ltd. [1951] 1 All E.R. 72, C.A. This was a case in which the plaintiff after his training in the defendants’ factory for about six months, remained in the service of the defendants for three years. He suffered from dermatitis and brought an action against the defendants for breach of duty. Denning L. J. said in that case at p. 74: “On those facts, the question is whether the employers fulfilled their duty to the workman. The standard which the law requires is that they should take reasonable care for the safety of their workmen. To discharge that duty properly an employer must make allowances for the imperfections of human nature. When he asks his men to work with dangerous substances, he must provide proper appliances to safeguard them, he must set in force a proper system by which they use the appliances and take the necessary precautions, and hemust do his best to see that they adhere to it. He must remember that men doing a routine task are often heedless of their own safety and may become careless about taking precautions. He must, therefore, by his foreman, do his best to keep them up to the mark and not tolerate any slackness. He cannot throw all the blame on them if he has not shown a good example himself”.
Under section 28 of the Factories Ordinance, 1952, an employer owes a duty towards inexperienced workers in his factory to give them sufficient training and provide adequate supervision.
In Woods v. Durable Suites, Ltd. [953] 2 All E.R. 391, C.A. the plaintiff claimed damages for negligence and breach of statutory duty, and he alleged that the defendants did not exercise any, or any sufficient supervision over him and his work and that they adopted an unsafe system of working. The facts of that case are not on all fours with the present case, but the judgment of Morris L.J. (as he then was) is important, because in my view it elucidates the employer’s duty to provide effective supervision over his workmen. Morris L.J. said at p. 396: “The obligation of an employer towards his servants includes an obligation to exercise due care and skill, to provide a proper system of work, and to provide effective supervision. If an employer allows safety precautions to lapse and to fade away
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into desuetude, it may well be that, on the facts of a particular case, there may be proof that there has been a failure to exercise due care and skill and to provide a proper system of work, but each case must depend on its own exact facts. The duty to exercise due care to provide effective supervision does not involve that an employer must provide a corps of overseers to ensure that some process, in regard to which there has been faithful and ample coaching, is at all times properly carried out. Again, each case must depend on its own facts. If a time comes when there is knowledge of the neglect of, or the rejection of, safety precautions, then, on the facts of the particular case, it may be that it can be established that there has been a failure to take reasonable care to supervise the smooth working of a safe system”
The question whether the defendants in the present case had discharged both their common law and statutory duties was primary one of fact. The plaintiff’s case was that all cleaners, and more especially in his own case, were taught to clean the machine whilst it was in motion. The defendants contended contrariwise that cleaners were taught to clean the machine only when it was not in motion. The learned trial judge, who saw and heard the witnesses, rejected the defendants’ contention, and with regard to the defendants’ common law duty he made the following findings:
(1) that the machines were dangerous and that the process of cleaning them involved great risk of physical danger to employees;
(2) that the employees were taught to clean the machine whilst in motion;
(3) that the absence of supervisors during cleaning of the machines constituted lack of a proper system of working and that the defendants therefore failed in their duty to take reasonable care for the safety of the plaintiff. With regard to the defendants’ statutory duty the learned trial judge stated as follows: “As I have found in effect that the plaintiff was only asked to see what his fellow employees were doing and do the same-the supervisors not being immediately available to the employee carrying on the cleaning it is my consequential finding that the plaintiff did not receive sufficient training on the work at the `finisher cards machine’ before he was asked to clean the machine and the defendants were therefore in breach of section 28 (a) of the Factories Ordinance, 1952 (No. 33 of 1952).”
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The learned trial judge gave reasons, valid reasons, in my view, for rejecting the case of the defendants, and I am not persuaded by the specious arguments of counsel for the defendants that the trial judge’s findings are wrong. The only criticism of the trial judge’s findings that was pressed with vigour by counsel for the defendants was the judge’s failure to refer in his judgment to certain contradictory statements alleged to have been made by the third and fourth witnesses for the plaintiff. It was argued that if the trial judge had considered these signed statements made ante litem motam by the two witnesses, he might well have preferred the case for the defendants. Both witnesses were asked by the defendants to make a statement on the date of the accident; the third witness said in his statement that he had gone to fetch a broom somewhere when the accident occurred and therefore he did not witness it. In his evidence he said that he was standing by the plaintiff when the latter’s hand was caught in the machine, and when he was cross-examined about his previous statement he explained as follows: “I was afraid I would be dismissed that was why I said in my statement that I left to fetch a brush and whilst going I heard a noise. I came back and found the plaintiff under the machine. It is not true that I was afraid to be dismissed because I have done something I should not have done but that whenever anything happens whether one is involved or not one is threatened with dismissal. This has been the attitude of the defendants”. The alleged contradiction in the evidence of the fourth witness appears to me to be very trivial. All he said was that the machine was not working when he and another employee went on top of it to work. The implication here is that it was the plaintiff who afterwards in his absence started to work on the machine when it was in motion. In his evidence he denied that he had made this statement. These two witnesses for the plaintiff were however both emphatic that they had no instructions that the engine was not to be cleaned when in motion. The learned judge heard this evidence and the explanations by the witnesses of their previous inconsistent statements, and he came to the conclusion that the evidence of these witnesses supported the plaintiff’s case. In my view, in any case, a contradictory statement is no evidence of its own truth: see Wright v. Beckett (1833) 1 M. & Rob. 414 per Lord Denman C.J. at p. 416 and Ewer v. Ambrose (1825) 3 B.& C. 746; and I do not see how the alleged contradictory statements by the two witnesses impugned the plaintiff’s evidence on the central issue.
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Counsel for the defendants said that if the court was not with him on this point, and speaking for myself, I would say that I am not with him, then he would contend in the alternative that the plaintiff was guilty of contributory negligence. The real question then is: whether the plaintiff was negligent, and whether his negligence or disobedience to instructions was the dominant cause of the accident. In Caswell v. Powell Associated Collieries, Ltd. [1940] A.C. 152, H.L. which was an action for breach of statutory duty, Lord Wright said at pp. 178-180, H.L.: “What is all-important is to adapt the standard of what is negligence to the facts, and to give due regard to the actual conditions under which men work in a factory or mine, to the long hours and the fatigue, to the slackening of attention which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his preoccupation in what he is actually doing at the cost perhaps of some inattention to his own safety . . . Contributory negligence involves two elements, negligence and contributing negligence. The policy of the statutory protection would be nullified if a workman were held debarred from recovering because he was guilty of some carelessness or inattention to his own safety, which though trivial in itself threw him into the danger consequent on the breach by his employer of the statutory duty. It is the breach of statute, not the act of inadvertence or carelessness, which is then the dominant or effective cause of the injury”. The observations of Lord Wright are equally applicable to breach of a common law duty to provide a safesystem of working, and the same standards are applied to both the plaintiff and the defendant. But as Slade J. rightly pointed out, in my view, in Harris v. Brights Asphalt Contractors, Ltd. [1953] 1 Q.B. 617 at p. 629: “a court ought [not] to be too astute to find a workman guilty of negligence, either as the sole or contributory cause of the accident, when he does not demur to a risk which the employer has imposed upon him, ex hypothesi, by a breach of common law duty or a breach of statutory duty . . . I am fully alive to the fact that an employee is also under a duty to his employer to take reasonable precautions for his own safety; but I do say that when the failure to do so consists of not demurring to a risk which his employers have imposed on him, the court ought not to be astute in finding contributory negligence.”
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On the facts as found by the trial judge there can be no doubt that the risk which the plaintiff accepted without demur was imposed upon him by the system which the defendants adopted in working the machine at their factory. The learned trial judge, after a careful examination of the evidence, dismissed the charge of contributory negligence against the plaintiff with these observations: “I cannot see how the plaintiff contributed to the incident—the plaintiff was doing the work in the manner taught by the defendants.” I am satisfied that there is abundant evidence to justify the trial judge’s finding that the plaintiff was not guilty of contributory negligence.
I will now deal with the defendant’s appeal against damages. The appeal is grounded on the allegation that the damages awarded by the trial judge were excessive and out of all proportion to the injury and loss suffered by the plaintiff. I must confess that much of the argument advanced in support of this ground of appeal is lost on me, owing to the time it has taken to consider my judgment. But the circumstances of the delay were completely beyond my control, and I shall endeavour to deal with this aspect of the appeal on general principles. Where the trial of a case is by a judge sitting alone an appeal to this court from his judgment is a rehearing, and the court is not only entitled, but is bound, to assess the damages which it thinks proper to award, having regard to the facts of the case. But the court must be satisfied that the trial judge proceeded upon an erroneous basis. In his speech in Davies v. Powell Duffryn Associated Collieries, Ltd. [1942] A.C. 601 at p. 617, H.L. Lord Wright stated the principles which should guide an appellate court in these words: “It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency”.
The factors which the learned trial judge considered before estimating the damages appear in the following passage from his judgment: “I now come to the question of damages. From the evidence of the plaintiff and also from the amended statement of claim, it does appear that the plaintiff did not claim any special damages as such. The evidence of the first prosecution witness, the orthopaedic surgeon, already recapitulated was not controverted. The plaintiff is a young man of about 21 years-he is an unmarried father of one child, a right-handed person who cannot write with his right hand. There is no doubt that, by the incident, both hands have been deformed. He is interested in [p.669] of [1967] GLR 657
soccer and volley ball. The assessment of general damages is not free from controversy and has always been one of the difficult matters.” In a subsequent passage the learned judge said: “There is no doubt that pain and suffering, loss of amenities of life, loss of prospects of better employment are some of the natural consequences of the injury… In awarding damages one has, I think, to take intoaccount the economic factors of the day and the purchasing power of money of the day into consideration and the ever increasing opportunities and avenues available to the present generation by way of improvement in all fields of life.”
Finally, the learned judge said “I therefore award damages of ¢15,000.00 for the plaintiff on the following basis:
(1) Loss of use of right hand and injury to the left hand .. ¢8,000.00
(2) Pain, suffering and inconvenience .. .. .. ¢ 700.00
(3) Loss of amenities and disfigurement .. .. .. ¢4,800.00
(4) Handicap and disadvantage in labour market .. .. ¢1,500.00
¢15,000.00”
The basis of this assessment is being challenged by the defendants, and after hearing argument of counsel for the defendants, Mr. Boakye, counsel for the plaintiff, conceded, and rightly in my view, that disfigurement in item (3) was not a proper factor to take into consideration. Before making his award the learned trial judge referred to decided cases in actions for personal injuries similar to the present case; one in England where the award was £7,000 (or ¢16,800.00) and another in Ghana where the High Court awarded £4,669 (or ¢11,205.60). The task of awarding monetary compensation for personal injuries is a difficult one, and it is essentially a matter of opinion. But I think it is desirable that some endeavour should be made to secure uniformity in assessment of damages when considering claims in actions for personal injuries. It is also desirable that “so far as possible comparable injuries should be compensated by comparable awards”: per Lord Morris in H. West & Son, Ltd. v. Shephard [1963] 2 All E.R 625 at p. 631, H.L. I think the time has now come for this court to state in general terms the factors to be taken into consideration in awarding damages in claims arising out of personal injuries. In his oft-quoted judgment in Phillips v. South Western Railway Co. (1879) 4 Q.B.D. 406, Cockburn C.J. expressed the general approach of the courts in the assessment of damages for personal injuries. He said at pp. 407-408: “But we think that a jury cannot be said to take a reasonable view of the case unless they consider and take into account all the heads of damage in respect of which a plaintiff complaining of a personal injury is entitled to compensation. These are the bodily injury sustained; the pain undergone; the effect on the health of the sufferer, according to its degree and its probable duration as likely to be temporary or permanent; the expenses incidental to attempts to effect a cure, or to lessen the amount of injury; the pecuniary loss sustained through inability to attend to a profession or business as to which, again, the injury may be of a temporary character, or may be such as to incapacitate the party for the remainder of his life”. In assessing the sum to which the plaintiff is entitled, the court must have regard to the facts of the case it is considering and determine the appropriate matters in respect of which the plaintiff must be compensated. But any assessment must take into consideration at least three factors, if all these are present: (1) prospective loss of earnings; (2) pain and suffering, and (3) loss of amenity; see Haygarth v.Grayson, Rollo & Clover Docks, Ltd.[1951] 1 Lloyd’s Rep. 49 at p. 52, C.A. per Asquith L.J. cited in Kemp & Kemp, The Quantum of Damages, Vol. 1 (3rd ed.), at p.8. The courts “must not attempt to give damages to the full amount of a perfect compensation for the pecuniary injury, but must take a reasonable view of the case, and give what they consider, under all the circumstances, a fair compensation” : per Brett J. in Rowley v. London & North Western Railway Co. (1873) L.R. 8 Ex. 221 at p. 231. Even though this rule is doubted by Kemp & Kemp (supra) at p. 4 it seems that it has been approved in H. West & Son, Ltd. v. Shephard (supra).
In H. West & Son, Ltd. v. Shephard (supra) Lord Devlin asked the question at p. 638: “What is meant by compensation that is fair and yet not full?” He answered it at the same page thus:“I think it means this. What would a fair-minded man, not a millionaire, but one with a sufficiency of means to discharge all his moral obligations, feel called on to do for a plaintiff whom by his careless act he had reduced to so pitiable a condition? Let me assume for this purpose that there is normal consciousness and all the mental suffering that would go with it. It will not
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be a sum to plumb the depths of his contrition, but one that will enable him to say that he has done whatever money can do. He has ex hypothesi already provided for all the expenses to which the plaintiff has been put and he has replaced all the income which she has lost. What more should he do so that he can hold up his head among his neighbours and say with their approval that he has done the fair thing?”
The various heads of damages in a claim for personal injuries were lucidly stated and expanded by Lord Devlin in H. West & Son Ltd. v. Shephard (supra). His Lordship said at p. 636. “The case raises a fundamental question on the nature of damages for personal injury. There must be compensation for medical expenses incurred and for loss of earnings during recovery; these are easily quantified, whether as special or as general damage. Then there is compensation for pain and suffering both physical and mental. This is at large. It is compensation for pain and suffering actually experienced. Loss of consciousness, however caused, whether by the injury itself or produced by drugs or anaesthetics, means that physical pain is not experienced and so has not to be compensated for; and this must be true also of mental pain. Then there is or may be a temporary or permanent loss of limb, organ or faculty. Whether it is the limb itself that is lost or the use of it is immaterial. What is to be compensated for is the loss of use and the deprivation thereby occasioned. This deprivation may bring with it three consequences. First, it may result in loss of earnings and they can be calculated. Secondly, it may put the victim to expense in that he has to pay others for doing what he formerly did for himself; and that also can be calculated. Thirdly, it produces loss of enjoyment, loss of amenities as it is sometimes called, a diminution in the full pleasure of living. This is incalculable and at large. This deprivation with its three consequences is something that is personal to the victim. You do not, for instance, put an arbitrary value on the loss of a limb, as is commonly done in an accident insurance policy. You must ascertain the use to which the limb would have been put, so as to ascertain what it is of which the victim has actually been deprived.” The correctness of the trial judge’s assessment of the damages in the present case can be tested by the application of the principle contained in the decided cases to which I have referred. The first head of damages which the learned judge considered was the deprival of
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the plaintiff of the use of his limbs, and what he is to be compensated for is the loss of use of his limbs. At the time of the accident the plaintiff’s annual income was £G120(¢288.00) a year. The plaintiff would, therefore, be entitled to the wages which he lost from the time of the accident to the date of trial, i.e. from 18 December 1963 to 23 November 1965; this amounts to £G237 10s. (or ¢570.00). The plaintiff would also be entitled to general damages in respect of prospective loss of earnings, but the court’s tasks, said Lord Reid in British Transport Commission v. Gourley [1956] A.C. 185 at p. 212, is to give “the present value of his prospective loss.” The court can only award a fair compensation for this loss. In Phillips v. London South Western Railway Co. (1879) 5 C.P.D. 280 at p. 293, C.A. Cotton L.J. said: “In my view a fair compensation for the pecuniary loss is not to be arrived at by any arithmetical process; it cannot be said that the amount of the income being known, the loss is reduced to a mere matter of calculation…The plaintiff is not to receive an annuity for the rest of his life calculated on the amount of his income; it was possible that the might have been disabled by illness or other causes from continuing to earn it; after taking into account the chances affecting the income, the jury were to say what, in their opinion, was a fair compensation for the disability, whether permanent or temporary, under which the plaintiff came of practising his profession and earning the income which he previously enjoyed. It may be said that this is todirect the jury to guess the amount to be awarded to the plaintiff, but it cannot be arrived at with mathematical certainty.”
Though the trial judge did not give details of the first head of damages, it would seem that the award includes loss of earnings from the date of accident to the date of hearing and prospective loss of earnings. Having regard to the age, education and the station in life of the plaintiff I think the award of ¢8,000.00 is excessive. In my opinion the sum of ¢4,000.00 would be a fair compensation under this item. The assessment under item (2) is at large, for it cannot be calculated in terms of cedis and pesewas. For as the Earl Of Halsbury L.C. said in The Mediana [1900] A.C. 113 at pp. 116-117, H.L.: “…how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a
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person has undergone by reason of an accident…But nevertheless the law recognises that as a topic upon which damages may be given.”
On the facts proved I have no doubt that the plaintiff must have suffered an agonizing pain, and I do not think that the trial judge’s award of ¢700.00 is excessive. Assessment under item (3) is also at large, and there can be no doubt that the plaintiff will suffer diminution in the full pleasures of life. He can no longer write with his right hand and cannot play volley ball, the game he enjoyed. His total permanent disability was estimated at 55 per cent. In assessing damages under this head the learned trial judge took into account the deformity to the plaintiff’s hands. As I have already said counsel for the plaintiff conceded that the trial judge ought not to have taken that matter into consideration. Having regard to all the circumstances of this case I would reduce the award under item (3) to ¢2,800.00.
In my view item (4) is a proper matter to consider in awarding damages for personal injuries. The permanent injuries to the plaintiff will without doubt reduce his chances of getting a better paid job, and any employer would prefer an able-bodied person to a person with a disability. The plaintiff is therefore at a disadvantage in the labour market, and for this he is entitled to compensation. I think the learned trial judge’s award of ¢1,500,00 is fair and reasonable, and I would not interfere with his assessment. In the result I would accordingly reduce the damages awarded by the learned trial judge to ¢9,000.00, and to this extent I would dismiss the appeal with costs.
JUDGMENT OF APALOO J.A.
I agree.
JUDGEMENT OF LASSEY J.A.
I also agree.
DECISION
Appeal dismissed, but damage reduced to ¢9,000.00.
S.Y.B.B.
