MANU AND ANOTHER v. MENSAH [1963] 2 GLR 311

DIVISION: IN THE SUPREME COURT

DATE: 19 JULY, 1963

BEFORE: KORSAH C.J., ADUMUA-BOSSMAN AND CRABBE JJ.S.C.

 

CASES REFERRED TO

(1) Marling v. Forbes, judgment of English Court of Appeal (No. 32d. of 1954), unreported.

(2) Mason v. Williams and Williams, Ltd. [1955] 1 W.L.R. 549; [1955] 1 All E.R. 808

(3) Swinburn v. Lincolnshire Motor Company, judgment of English Court of Appeal (No. 164 of 1951), unreported

(4) Savine v. Hall, judgment of English Court of Appeal (No. 409 of 1952), Unreported

NATURE OF PROCEEDINGS

APPEAL from a decision of Apaloo J. delivered at the High Court, Kumasi (unreported) wherein he awarded the plaintiff the sum of £G2,750 damages in an action for damages in a personal injury case.

COUNSEL

J.E.C. Lutterodt for the appellant.

Kofi Sackey for the respondent

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

There is the question of the quantum of damages awarded, in respect of which it has been contended on behalf of the defendants that “the amount awarded as damages was excessive and a wholly (or substantially) erroneous estimate of the damage which the plaintiff actually suffered (in the circumstances of the case).” It is to be observed that the learned trial judge approached the subject with some degree of apprehension and diffidence, for he said, after determining the question of the defendants’ liability, “That leave me with the not too easy question, namely, what is the quantum of damages to which the plaintiff is entitled.” He then proceeded to refer to the plaintiff’s injuries as to which he observed as follows: “The plaintiff suffered severe injuries and was unconscious for no less than two weeks. He had convulsive seizures which enabled Dr. Bilson to express the opinion that he had severe internal bleeding in the head. This was complicated by bilateral pneumonia. The plaintiff’s sufferings did not cease with his discharge from hospital. He has poor vision in the right eye, sensation of heaviness in the head, and frequent attacks of dizziness. The medical opinion is that these are the natural result of the head injuries which plaintiff received. Although he has reported back to work, he has to attend the company’s doctor at least twice a month to receive further medical treatment. Plaintiff says he cannot now lift up heavy books from the ground without feeling pains, and that if he stood for a long time he feels pains in his head and behind his back. I have seen the plaintiff, and I have no doubt that he was in earnest. Before the accident the plaintiff stuttered; I think he was born so. This has been worsened by the accident and explains the difficulty he experienced in his speech while giving evidence. Dr. Anfom who examined him in July 1961, put his residual incapacity as ten per cent.”

Having referred to the plaintiff is injuries in detail as above, he went on however to point out that the plaintiff in effect suffered no direct pecuniary loss, when he observed that:

“The plaintiff’s employers have so far shown great kindness to him. He was paid full wages for the eight months that the accident kept him out of work,

[p.313] of [1963] 2 GLR 311 and have sent him for treatment at their own expense. How long they would feel able to keep the plaintiff on, in view of his present condition, I do not speculate.”

He then concluded his consideration of the question of the quantum of damages with these significant words:

“Doing the best I can, and taking into consideration all the matters which I have endeavoured to state, I assess general damages in favour of the plaintiff in the sum of £G2,750.”

I have described the learned judge’s statement as significant because of his confession that he was doing the best he could but not proceeding, as he ought, on established or recognised principles, and/or precedents of assessment of damages.

Now considering the assessment, it appears, from the learned judge’s own statement of the matters he set out before making the assessment, that the said assessment was substantially for the injuries caused to the plaintiff. In this connection it has been said that:

“In so far as the injury results in damage which does not admit of assessment by arithmetical calculation, the plaintiff should be awarded fair and reasonable compensation, such compensation to be assessed in the light of previous awards in respect of comparable damage.” (See Kemp & Kemp on Quantum of Damages (2nd ed.), Vol. 1, p. 5.)

As set out in the grounds of appeal and urged before us that, “(a) the plaintiff did not sustain any permanent disability and there was no proof of any loss of expectation of his life; and (b) the accident did not deprive plaintiff of any capacity to earn in future whatever income he was earning before the accident.”

His damages therefore fell to be assessed substantially on the basis of the pain and suffering and loss of amenities occasioned by and/or resulting from the injuries inflicted on him. As was observed by Somervell L.J., in Marling v. Forbes1 (quoted in Kemp and Kemp on Quantum of Damages (2nd ed.), Vol. 1, pp. 314-315):

“There is no question here of any loss of earning capacity. It is in the rather intangible area of pain and suffering and loss of amenities. Having regard to what I may call the general scale of sums awarded for very often quite different matters, but similar in effect in what one might describe as the enjoyment and usefulness of life, I think the figure of £2,000 is too high. I think the figure should be £1,000 plus the special damages.” (Birkett and Romer L.JJ. concurred.) The learned Lord Justice referring to the circumstances of the case, stated (see p. 314 of Kemp and Kemp referred to above) that:

“The matters to which she [the plaintiff] deposes, and this of course was accepted by the learned judge, may perhaps be summarised. First of all she was deaf in the left ear and there was a singing in that ear. She was a lady

[p.314] of [1963] 2 GLR 311 of sixty-seven at the time of the accident. Prior to the accident she directed the running of a large farm, though she had a bailiff, and she was on a number of bodies, the Women’s Institute … She has found since the accident that she gets much more easily fatigued and she finds it naturally more difficult to concentrate. Her hearing is on some occasions an obstacle, but the hearing of the other is unimpaired … Emphasis was placed on the singing in the ear.”

Earlier on in the same passage the learned Lord Justice had stated that: “She had a very serious injury to her head, but she obviously made a good recovery. There was a fracture of the base of the skull and cerebral haemorrhage, but she left hospital within a fortnight.”

Comparing the facts of that case with those of the instant case, there is (1) the same head injuries and internal bleeding, indeed in that case a more serious result of the accident, namely, “cerebral haemorrhage and fracture of the base of the skull”; (2) the plaintiff in this case spent three weeks in hospital as compared with the two weeks in that case; (3) the plaintiff in this case has “poor vision in one eye” as compared with an impaired hearing in one ear of the woman plaintiff in that case; (4) the plaintiff in this case feels pains in his head and behind his back when he stands for a long time, by comparison with the woman plaintiff in that case being “much more easily fatigued and finds it naturally more difficult to concentrate.” The important point of similarity however, is that the damages had to be and were assessed substantially on the basis of the pain and suffering endured and the general or comprehensive result that the injuries have not seriously incapacitated the plaintiff nor seriously impaired or affected his normal vitality. In such a case an assessment at random without regard to assessment in analogous cases is, according to the authorities, unjustified. Under this class of assessment, limited substantially to compensation for pain and suffering and loss of amenities, in cases where the accident has resulted in the impairment of eyesight, may be mentioned a few cases.

In Mason v. Williams and Williams, Ltd.2 where a workman lost the sight of one eye but there was no permanent loss of earnings, Finnemore J. awarded £1,900 general damages. It should be noted that the plaintiff in that case lost completely the use of one eye. In another case Swinburn v. Lincolnshire Motor Company3 (quoted in Kemp and Kemp (supra) at p. 299), an apprentice motor engineer aged twenty had his right eye struck by a piece of metal rendering it completely useless and unsightly. He was obliged to leave the engineering industry and obtained light work at £3 6s. per week. Lynskey J. awarded him £785 general damages which were increased to £1,500 by the Court of Appeal.

In yet another case Savine v. Hall Telephone Accessories, Ltd.4 quoted in Kemp and Kemp (supra) at pp. 303-305, the plaintiff was struck in the

[p.315] of [1963] 2 GLR 311 eye with the result that he could only see the shadows of large objects without glasses, but with a strong lens he had about two-thirds vision with the eye. The other eye was uninjured, but nevertheless the plaintiff was substantially a one-eyed man, and he earned five shillings a week less than before the accident. He could not read for five minutes without the letters “smashing together”; and if he went to the cinema he came out with a bad headache. He was 29 years old. The Court of Appeal awarded him, £1,000 general damages. This last mentioned case in which Sommervell L.J., observed (Kemp and Kemp (supra) at p. 305) that:

“One has, I think, to take into account the bad headaches and the plaintiff’s evidence as to difficulty in reading, the injury to earning capacity, which includes the disadvantage in the labour market and indeed the disadvantage in certain types of work which a man like this might find himself anxious to do and which he would be able to do if he had two eyes, and pain and suffering,” is obviously a much worse case than the instant one, and yet the general damages was £1,000. Guided by the award in the several analogous cases in which the assessment of compensation has been on the basis substantially of pain and suffering and loss of amenities resulting from injuries which have not been of a permanent or seriously incapacitating nature, I am impelled to the view that this is one of those cases where the appeal court should interfere in the learned judge’s assessment of damages. In my opinion a most generous and far more reasonable assessment in the light of precedents would be £G1,500, and I would therefore reduce the sum of £G2,750 award to that amount of £G1,500.

Subject to that, I would dismiss the appeal and award the respondent half the costs of the appeal.

JUDGMENT OF KORSAH C.J.

I agree.

JUDGMENT OF CRABBE J.S.C.

I also agree.

DECISION

Appeal dismissed.

Damages of £G2,750 awarded in the High Court reduced to

£G1,500.

K.T.