KRUWAH v. KALMONI AND ANOTHER [1961] GLR 424

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 26TH JUNE, 1961

BEFORE: OLLENNU, J

CASES REFERRED TO

(1) Owen v. The Welsh Construction & Demolition Co. Ltd. & Anor. 1953 C.A No.169, May 5,n1953

(2) Rose v. Willey 1951 C.A No. 221, October 16, 1951

(3) Abena Kwayie v. Nana Kwasi Appaw & Anor., Court of Appeal, May 5, 1958, unreported .

NATURE OF PROCEEDINGS

ACTION by plaintiff for damages for personal injuries.

COUNSEL

J. Heward-Mills for the plaintiff.

E. D. Kom (Kwaku with him) for the defendants.

JUDGMENT OF OLLENNU J.

The plaintiff is a seamstress and lives at Techiman where she carried on her trade. On the 17th January, 1960 the second defendant, driver to the first defendant, negligently drove his master’s Albion petrol tanker No. AE.6270 on the Cape Coast to Kumasi road and brought it [p.425] of [1961] GLR 424 into collision with a passenger vehicle No. WR.89 on which the plaintiff was travelling. In consequence of the said accident the plaintiff suffered injuries including a compound fracture of her right ulna resulting in an almost complete loss of the use of her right hand. For the said injuries the plaintiff now claims £G29 4s. special damages and £G10,000 general damages.

The defendants did not dispute the allegation of negligence on the part of the second defendant; they,nhowever, contested the quantum of the damages claimed and contended that in view of all the circumstances the plaintiff should not be awarded more than £G900. The ground upon which the defendants resisted the amount of damages are: (i) the plaintiff failed in her duty to minimise damage, by refusing to have her said hand operated upon in time and also in not seeking an alternative job; (ii) the nature of the plaintiff’s business and her income therefrom.

In support of this submission counsel referred the court to Kemp and Kemp on The Quantum of Damages, (2nd ed) Vol. 1 page 493 and the case of Owen v. The Welsh Construction & Demolition

Co. Ltd. and Another1(1) there cited. In that case the plaintiff was awarded £G750 damages in the High Court, but the Court of Appeal increased the award to £G2,100. That case, it was submitted is similar to the present case in many respects, namely the injury was to the right hand, and the disability was almost complete. The plaintiff there earned £G11 2s. a week, and it was difficult to obtain employment suitable to her condition after the accident.

Counsel for the plaintiff submitted that the grounds upon which the plaintiff refused to submit to proper medical treatment is that her hand was going to be amputated, but that in any event, the refusal to submit to the operation was an act of a third party, i.e. it was a decision taken by relations of the plaintiff, therefore the refusal should not be imputed to the plaintiff. It was alleged by the plaintiff that her people had to remove her from the Obuasi hospital because the doctor in charge had said he would amputate the hand. The plaintiff said she was unconscious at the time and that it was members of her family who informed her of what the doctor had said he would do. None of those members of the family was called to give evidence of the fact, and her father who gave evidence never said anything about it. The only other evidence on the record in that regard is that of the doctor, defence witness, who swore positively that he never told any one that he would amputate the plaintiff’s hand and there was no necessity to amputate it, and that the purpose of the operation he was going to perform was to get the hand back to normal or as nearly as possible to it. I accept the evidence of the doctor. I am also satisfied from the nature of the operation performed on the plaintiff when she at last submitted to operation that none of the doctors who dealt with the case advised amputation.

I find upon the medical reports and the evidence of Doctor Michael that it is most probable that if the plaintiff had submitted to the operation

[p.426] of [1961] GLR 424 timeously her injuries would not reach the state of disability in which it now is, i.e. 35 per cent as shown by medical report exhibit ‘A’ issued by Mr. C.O. Easmon, surgical specialist. But having regard to the fact that the plaintiff was removed from the Obuasi hospital by her relations when she was unconscious, I would say that the refusal to submit to operation was the act of her said relations and not her voluntary act; I would not therefore hold that against her as conduct amounting to failure of her duty to minimise damage. I also feel that the refusal by her, herself, to Mr. Anfon, surgical specialist, performing the operation when he first advised it, must have resulted from the influence of her said relations, not from her own volition, and is a continuation of the act of refusal by the relations first shown at the Obuasi hospital. Counsel for plaintiff referred to the case of Rose v. Willey2(2) cited in Kemp and Kemp (2nd ed.) Vol. 1 page 484, where the Court of Appeal in England upheld an award of £10,000 damages. In that case the plaintiff, a state registered nurse, earning £220 per annum, was thrown off her bicycle as a result of a taxi driver opening the door of his taxi as she was passing, and her arms were run over by omnibus and both arms were very seriously damaged. She had to undergo several operations, and despite all these, she had, at the time of the trial of the case, very little use of her right hand. The four main aspects taken into consideration in awarding the plaintiff the £10,000 damages were: (1) the permanent physical damage done to her body and limbs; (2) the pain and suffering she suffered and was suffering; (3) the pecuniary loss; and (4) the appalling havoc made by the accident upon her personal appearance. Those four aspects of the case of Rove v. Willey can afford a guide in dealing with the case , but only a guide. The permanent injury to the plaintiff is to the right hand, the other injuries sustained by the plaintiff have healed, and I do not attach much importance or credence to the allegation of the plaintiff that when the cold season comes she does have some funny feeling in her head as a result of the head injuries she suffered. The plaintiff must have suffered a lot of pain and discomfort and certainly some pecuniary loss, and the disfigurement of her right hand. But I do not think that this case is on all fours with the case of Rose v. Willey as counsel for the plaintiff contended. There is the fact that both hands were involved in the other case while only one hand is involved in this case; the plaintiff in that other case was in receipt of regular salary as a state registered nurse and the chance of her obtaining a higher post were pretty certain, while in this case the plaintiff’s income was uncertain.

There is a local case, the facts of which are very similar to the present case. That is the case of Abena Kwayie v. Nana Kwasi Appaw and Another3(3). The plaintiff in that case was a dress-maker carrying on business at Kumasi, she was pregnant at the material time, and was travelling on a lorry from Goaso when a vehicle owned by the first defendant negligently driven by the second defendant collided with the vehicle on which she [p.427] of [1961] GLR 424 was travelling, and the plaintiff sustained serious injuries. She had a miscarriage, with complications, her right hand was crushed and had to be amputated between the elbow and the shoulder, leaving a four inch shoulder stump. She sued for £G4,000 damages. Only the quantum of damages were contested. The Divisional Court awarded the plaintiff £G4,000 in default of pleading. On appeal to the

Court of Appeal, the parties compromised on the damages at £G2,000.

In my opinion the four aspects which should serve as guidance in fixing the amount of general damages are far stronger in favour of the plaintiff in that local case than they are in the case of the plaintiff in the present suit, therefore although the damages in that other case were fixed by consent, it should be of assistance to me in fixing the damages in the present suit, as the amount which the parties and counsel in that case decided on was fair and reasonable. Now as to the special damages counsel for the plaintiff has conceded that they have not been satisfactory proved. It is doubtful whether in fact the insurers of the defendants have not already refunded all expenses to the plaintiff’s father. The claim for special damages must therefore fail.

As to the general damages, I think £G2,000 will amply compensate the plaintiff having regard to all the circumstances of the case.

There will therefore be judgment for the plaintiff for £G2,000 damages with costs which I fix at 100 guineas inclusive.

DECISION

Judgment for plaintiff.