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FEDERAL SUPREME COURT OF NIGERIA
15TH JUNE, 1961.
BEFORE THEIR LORDSHIPS
LIONEL BRETT, F.J. (Presided)
JOHN IDOWU CONRAD TAYLOR, F.J.
SIR VAHE BAIRAMIAN, F.J. (Read the Judgment of the Court)
TORT AND PERSONAL INJURIES – DAMAGES: Personal Injuries – Assessment of.
PRACTICE AND PROCEDURE – DAMAGES: Reduction on Appeal – When Appeal Court can interfere with the quantum of damages awarded
Impey -for the Appellant.
Lambo -for the Respondent.
BAIRAMIAN, F.J. (Delivering the Judgment of the Court):
The defendant complains against the amount of damages awarded in the High Court of the Western Region, by Charles, J. at Abeokuta, on the 24th June, 1960, for injuries suffered in a lorry accident. The amount awarded was £3,830.
There was also a notice of cross-appeal, that the amount should be increased; but the plaintiff (who is the above respondent) did not pursue it at the hearing of the appeal; nor could he pursue it with good grace, for his argument against the defendant’s appeal was that on principle the damages awarded by the trial Judge should not be disturbed. The authority usually quoted is the statement of Greer, L.J., in Flint v. Lovell, 1935,1 K. B. 354, at p. 360:
I think it right to say that this Court will be disinclined to reverse the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.
The accident occurred on 28th March, 1958; the plaintiff was about 47 years of age; at the time he was a Health Inspector at £345 per annum; the injuries he sustained were a V-shaped cut one inch long above the left eyebrow; a cut three inches long over the upper lip; a cut three inches long over the left side of the chin: these were stitched and healed, but left scars behind; there were also some abrasions, which were not serious, except for the fractured abrasion of the left hip joint. He was suffering from shock; he lay immobile in bed in hospital until some day in July, when he was sent home on a stretcher, still showing traces of mental shock; he continued in bed for about three months. An X-ray of his hip was taken in July; he went to the orthopaedic surgeon at Ibadan, and at his wish to the Royal Orthopaedic Hospital at Igbobi, on 1st August, where his hip was treated until 12th September, when he was discharged. On 11th November he went to the Aro Nervous Disease Hospital, and remained there until 19th January, 1959, after which date he attended as an out-patient for about three months; he was suffering, when he went to that hospital, from depression and the delusion that people wanted to poison him- which was ascribed to post-traumatic changes caused by serious injuries; he was required to be kept under observation for a year; and the nervous specialist thinks that his mental disorders may recur. For the time being it does not look as if he is mentally affected: a year ago or so he was promoted; by the time of the trial he had become an Assistant Health Superintendent with a salary of £513 per annum.
The plaintiff has not suffered any loss of expectation of life; but he is left with two ugly scars on his face and the injury to his hip, which has a permanent deformity and prevents him from walking normally. In his report, the orthopaedic surgeon stated that certain disabilities might occur – which, in his evidence, he said were certain to occur but when could not be predicted; the likely disabilities are osteo-arthritis of the left hip joint with complete fixation of the thigh bone in the pelvis, a tilt of the spinal column, which would lead to osteo-arthritis of the spine and of the other hip also from its having to bear extra weight.
The learned Judge, after stating the evidence, which I have summarised from his judgment, proceeds to consider what should be granted as compensation.
Under Pain and Suffering- Permanent injury to the left hip he considers the pain suffered during the stay in hospital, and later, and the probability of pain developing later according to the doctor’s predictions but with the possibility that they may prove incorrect; and he awards £2,000. For the cuts, abrasions and bruises he awards £30. For post-traumatic change causing mental illness and the possibility of mental illness and suffering, £400.
Under Loss of the Amenities of Life, the learned trial Judge considers the Hip. He observes that the plaintiff will not be able to ride a motor-cycle, and that a car will be more expensive to run, and that the loss of the capacity to walk normally is itself a serious deprivation: and he awards £500.
Under Inconvenience and Discomfort, the judgment says:
The matters to be properly taken into account under this head, I think are the inconvenience of being immobile or only partly mobile, the inconvenience and embarrassment, while in such a condition, of being unable to attend to his own personal requirements, the boredom of being in hospital routine, the duration of those inconveniences, the likelihood of their re-occurrence, and that they will be less bearable, perhaps, as the plaintiff becomes older, and in the case of the facial scars, the fact that they are permanent and, apparently are a source of embarrassment to the plaintiff. How much weight should be put on these matters it is impossible to say with any approach to accuracy… etc.
And the amount awarded under this head is £750 in respect of the hip, £50 of the facial scars, and £100 of post-traumatic change.
With respect to the learned Judge, it is clear that he has, unwittingly, granted compensation more than once for what are substantially the same matters, besides being over-generous and overlooking what should be the dominant point, namely, that the plaintiff has not suffered any disability in his earning capacity; moreover, there is no ground for thinking that the plaintiff was using a motor-cycle – and is now using a motor car – but for the purposes of his employment. Mr. Impey, on behalf of the defendant, has given two near examples – Powell v. Docks Executive, which is noted in Kemp and Kemp on the Quantum of Damages in Personal Injury Claims, at page 300, a case of 1949, and Gavin v. Richard Ashton and Sons, 1959, which is noted in the Current Law Year Book for 1959, in paragraph 885, under Injury to leg.
The note on Powell is: Powell suffered a comminuted fracture of the right thigh on August 13th, 1946, and was in hospital till October 29th, 1947; the fracture united in a good position, but he was left with arthritis in the hip joint and a permanent stiffness in the knee joint. The accident also accelerated fibrotic trouble in both lungs. He became permanently unfit for work. His pre-accident wages were £8 per week. Pritchard, J., assessed the damages at £2,750 including £818 special damages.
And the note on Gavin is: Male, aged 42. Demolisher, earning £15 a week. Dislocation of left hip with fracture of head of femur. Was in hospital for two months; had to have operation five months later. Now had painful hip, arthritic changes were inevitable. Operation would be necessary in three or four years’ time. He had attended Government training centre and was told to find work a couple of months later. Was unfit for anything but purely sedentary work; was unable to find a job because of condition and fact that he was unable to read or write. £2,250.
Compared with Powell and Gavin, the plaintiff here was awarded far too much: his pay before the accident was a little under £7 a week; he was not so long in hospital as Powell; his injury to the hip is no worse than Gavin’s; he was able to go back to work, and has received promotion. But the plaintiff here, in addition to the hip injury, suffered mental shock, which damaged his nerves, and has been left with two ugly scars on his face; and there is the possibility of his suffering from his nerves again. Taking everything into account, and perhaps erring on the side of generosity, I would say £2,000 would have been the right award, and propose allowing the appeal and varying the judgment of the Court below by reducing the general damages to £2,000; the £10 special damages will stand, so will the 100 guineas costs in that Court; the appellant should have his costs of appeal, which are assessed at forty-five guineas in all.
BRETT, F.J.: I concur.
TAYLOR, F.J.: I concur.
Appeal allowed. Damages reduced to £2,000.