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2ND JUNE, 1978
(1978) 6-7 S.C. (REPRINT) 12
BEFORE THEIR LORDSHIPS
LAW OF TORT – Negligence – Master and servant – Failure of master to prevent injury by repairing damaged machinery – Master’s liability.
LAW OF TORT Remedies – Quantum of damages for negligence – How calculated – Personal injuries to plaintiff – Effect on future earning capacity – Nominal damages – When appropriate – Meaning of.
PRACTICE AND PROCEDURE – COURT – Award of damages by lower Court – When appellate court may interfere – Principles governing.
FATAI-WILLIAMS, J.S.C. (Delivering the Judgment of the Court): The plaintiff was at all material times employed by the defendant as a boiler and steam operator at its Baptist Hospital at Eku. In that capacity, he was obliged to operate a defective machine which is the property of the defendant and which the defendant neglected to put right despite incessant complaints by the plaintiff. On or about 8th October, 1970, whilst in the course of the said employment at the Hospital, the plaintiff had his right thumb “chopped” off by the said defective machine and he thereby suffered damage.
The plaintiff therefore commenced proceedings in the Sapele High Court in which he claimed from the defendant the sum of N20,000 as special and general damages suffered by him in consequence of the defendant’s negligence.
In the course of his testimony in support of the claim, the plaintiff stated that the electric motor by which the machine was operated was defective and that this defect was known to him and to the defendant to whom he complained about the defect on several occasions. He then explained how he sustained the injury to his thumb as a result of this defect as follows:
“In that defective condition, to start the electric motor, one had to pull the pulley system with one hand while one would simultaneously switch on the starter with the other hand. Both had to be done quickly, else it would not work. I operated I for four years and had an accident on 8th October, 1970.
On that day, when I was trying to get the motor working as earlier described, I held the pulley with the right hand and put on the switch with the left hand, and the belt on an exposed fly wheel attached to the electric motor held my right thumb to the edge of the fly wheel and my right thumb was cut off. It bled so furiously that I also collapsed. I was admitted into defendant’s hospital and was in bed for over a week before I was discharged. I was treated free of charge. After I had been discharged I continued treatment for many weeks before I fully recovered.
When the Hospital considered it necessary for me to resume duty I did so. Before the accident I was operating the machine alone, but after the accident two other people were employed to assist me. This was because I was unable to use my injured thumb in operating the defective machine. During the treatment part of the skin on my right was removed and grafted to the injured thumb.” (Italics ours)
Although the plaintiff was cross-examined at length about his testimony, no evidence was adduced by the defendant in rebuttal although it must have been clear to them that his testimony was not seriously affected by the cross-examination.
In a reserved judgment, the trial Judge, after considering the evidence adduced by the plaintiff, the defendant having decided not to call any evidence, found as follows:-
“On the whole I am satisfied that the plaintiff has proved his case against the defendants.
The plaintiff is claiming N20,000 special and general damages, but no particulars of any special damage was pleaded nor given in evidence. The evidence which I have accepted is that after the injury, for three years until his appointment was terminated, he continued to do the work and he also admitted that he would not have filed this action against the defendant if he had continued to remain on the job.
There is also the evidence that after the injury his wages were increased by twelve naira a month, and plaintiff did not state that the increase in the salary affected other workers doing identical work at the hospital. It ought to have been obvious to him that the increase in his salary which he received for three years and which he could have received until his retirement age was a special favour shown to him by the defendants for the injury he suffered while serving them.
The plaintiff also stated that he was unable to get another job as a result of the injury but this statement was not supported by any independent witness. On the whole I am satisfied that the plaintiff is not entitled to exemplary damages as his conduct has mitigated whatever suffering he had experienced. In the circumstances he will only be entitled to nominal damages; and this I assess at N400.00.”
The defendant did not appeal against the judgment. The plaintiff was, however, dissatisfied with the quantum of damages awarded to him and he has, therefore, appealed on the following grounds:-
The learned trial Judge erred in law and on the facts in assessing damages by allowing his mind to be influenced by his finding that plaintiff ‘after the injury for three years until his appointment was terminated he continued to do the work and he also admitted that he would not have filed this action against the defendants if he had continued to remain on the job.’
Particulars of Error
(i) The trial court found that plaintiff had a good cause of action against defendant.
(ii) The reason why plaintiff decided to file this action is patently of no relevance.
‘There is also the evidence that after the injury his wages were increased by twelve naira a month, and plaintiff did not state that the increase in the salary affected other workers doing identical work at the hospital. It ought to have been obvious to him that the increase in his salary which he received for three years and which he could have received until his retirement age was a special favour shown to him by the defendant for the injury he suffered while serving them’.
Particulars of Error
(i) Defendant did not plead anywhere in their statement of defence that the increase in plaintiff’s salary after his injury, was a SPECIAL FAVOUR shown to plaintiff by defendant for the injury plaintiff suffered while serving defendant.
(ii) Defendant did not adduce any evidence at the trial; they rested their case on the case of plaintiff.
(iii) In view of the state of the pleadings in this case, there was No burden of proof on plaintiff to establish that the aforesaid increase in salary was NOT a special favour to plaintiff by defendant.
Particulars of Error
(i) Plaintiff’s evidence on this point was not challenged under cross-examination.
(ii) Defendant did not adduce evidence in rebuttal of same.
(iii) Corroboration is not necessary here.
‘On the whole I am satisfied that the plaintiff is not entitled to exemplary dam-ages as his conduct has mitigated whatever suffering he had experienced. In the circumstances he will only be entitled to nominal damages; and this I assess at N400.00’.
Particulars of Error
(1) Defendant having rested their case on the case for plaintiff did not adduce evidence at all and so defendant did not adduce any evidence touching on the CONDUCT of plaintiff, at the trial.
Succinctly stated, the complaint of learned counsel for the plaintiff/appellant is that the learned trial Judge took Irrelevant matters into consideration and that these matters must have operated on his mind before deciding to award the plaintiff/appellant “nominal damages” of N400. Learned counsel further submitted that the learned trial Judge should have averted to the fact that the defendant/respondent knew of the defective state of the machine and did nothing to repair it for a period of over three years. It was also contended that since the plaintiff/appellant was not cross-examined with respect to his testimony about not being able to secure another job after his dismissal, that evidence should have been accepted by the learned trial Judge, particularly as no evidence was adduced in rebuttal: that If it had been so accepted, the learned trial Judge would not have awarded him nominal damages as he did. Learned counsel finally submitted that there was no evidence to support the finding of the trial Judge that the increase in the salary of the plaintiff/appellant by the defendant/respondent was special favour to the plain-tiff/appellant.
In his reply, learned counsel for the defendant/respondent submitted that in considering the quantum of damages to be awarded in a case such as the one in hand, what matters and what a judge should consider, is the nature and the effect of such injury on the injured. Learned counsel then submitted that the nature of the injury and its effect on the plaintiff/appellant justified the award of nominal damages of which the sum of N400.00 is a fair assessment, having regard to the particular circumstances. Learned counsel further submitted that the reasons given by the trial Judge, and about which the plaintiff/appellant is now complaining, rightly formed the basis for mitigation. He conceded, however, that there was no evidence in support of the finding that the payment of an increased salary to the plaintiff/appellant by the defendant/respondent was done to him as a favour.
There can be no doubt that for the reasons given by him, the learned trial Judge awarded the plaintiff/appellant nominal damages which he assessed at N400. The question which we have to consider, therefore, is whether those reasons are relevant to the award having regard to the particular circumstances of this case, and bearing in mind that no evidence was adduced in rebuttal of the evidence of de-liberate neglect on the part of the defendant/respondent to repair the defective ma-chine.
In cases of personal injuries, the basic pecuniary loss may be said to be the plaintiff’s loss of earnings or more strictly, a sum representing his loss of future earning capacity (see Fletcher v. Autocar AND Transporters (1968) 2 Q.B. 322 (C.A.). In the case in hand, the plaintiff/appellant testified about the possibility of securing another job after he lost his job with the defendant/respondent as follows:-
“My salary at the time of my dismissal was N35.00 a month. Since I left the hospital, I tried to get employment in other places but did not succeed. Some of the places I applied to for employment were Nigerian Hardwood Obearuku and Urhonigbe Rubber Factory as boiler and steam operator. I was told that I could not do the job effectively as I was partially disabled.”
This testimony was not disputed and should have been accepted by the learned trial Judge. It should not have been rejected on the ground, which appears to us to be untenable, that the “statement was not supported by any independent wit-ness.” We are not aware of any rule of evidence which provides that such a statement must be so supported. We think that the learned trial judge would not have made an award of only nominal damages, as he did, if, in addition to other factors, he had taken the inability of the plaintiff/appellant to secure employment, be-cause of the Injury, Into consideration.
At common law, “nominal damages” is a technical phrase. It means that the plaintiff has negatived anything like real damage. It means that he (the plaintiff) is affirming that by his nominal damages there is an infraction of a legal right which, though it gives him no right to any real damage at all, yet gives him a right to the verdict or judgment because his legal right has been infringed. (See The Mediana (1900) A.C. 113 at p.116). In this connection, we refer to the following observation of Halsbury, L.C. at page 116 of his judgment in that case. It is particularly apposite and it reads:-
“But the term ‘nominal damages’ does not mean small damages. The extent to which a person has a right to recover what is called by the compendious phrase damages, but may be also represented as compensation for the use of some-thing that belongs to him, depends upon a variety of circumstances, and it certainly does not in the smallest degree suggest that because they are small they are necessarily nominal damages. Of course the whole region of Inquiry into damages Is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case, 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 person has undergone by reason of an accident. In truth, I think it would be very arguable to say that a person would be entitled to no damages for such things. What manly mind cares about pain and suffering that is past? But nevertheless the law recognises that as a topic upon which dam-ages may be given.”
Can we say here that the plaintiff/appellant has not suffered any real damages? Quite apart from the evidence that he was unable to secure another job, there is the dear evidence of pain and suffering in addition to the fact that he is now un-able to use the Injured thumb properly. Presumably, because of this, the respondent had to employ two other persons to assist him in performing the job which he was doing alone before the accident.
We venture to observe, at this junction, that all the other matters which the trial Judge took into consideration, and which have been referred to by learned counsel for the plaintiff/appellant in the course of his argument, have no relevance to the quantum of damages which should be awarded in a case such as this. The reasons why the defendant/respondent kept the plaintiff/appellant on for three years and increased his salary are best known only to the defendant/respondent. There is certainly no evidence that it was done as a favour to the plaintiff/appellant. The admission that he would not have filed this action if he had been allowed to remain on his job Is also irrelevant. So also is his conduct after the accident, al-though his conduct, before the accident, in reporting about the defective state of the machine to the defendant is clearly relevant. The trial Judge completely ignored this relevant conduct.
The next question is, can this Court interfere with the award which we think is inadequate for the reasons stated above? In our view, this Court has the power and indeed the duty, to interfere with the award provided certain principles are complied with. (See Zlk’s Press Ltd. v. Ikoku (1951) 13 W.A.C.A. 188 at page 189).
The principles upon which an appellate court will act in reviewing an award of damages are now well settled and can be summarised as follows: An appellate court is not justified in substituting a figure of its own for that awarded by the lower court simply because it would have awarded a different figure if it had tried the case at first Instance. Before the appellate court can properly intervene, it must be satisfied either that the Judge, in assessing the damages, applied a wrong principle of law such as taking into account some Irrelevant factor or leaving out of account some relevant factor, or that the amount awarded is either so ridiculously low or so ridiculously high that it must have been a wholly erroneous estimate of the damage. (See Flint v. Lovell (1935) 1 K. B. 354 at p.360; Agaba v. Otobusin (1961) 1 Ail N.LR. 299 at p .300; Khawam v. K. Chellaram AND Sons (Nig.) Ltd. (1964) 1 W.L.R. 711 at p.714 (P.C.); Shodipo AND Co. Ltd. v. Daily Times of Nigeria Ltd. (1972) 1 All N.L.R. (Part 2) 406 at pp. 411-412; and His Highness Uyo I v. Nigerian National Press Ltd. (1974) 6 S.C. 103 at pp. 105-106).
With these principles in mind, and having regard to the view which we hold that the trial Judge, In assessing the quantum of damages, not only took some Irrelevant matters into consideration, but also left out of account some relevant facts – the neglect of the defendant/respondent to repair the defective machine and the failure of the plaintiff/appellant to secure another employment because of the in-jury – we think this is a dear case for interference with the damages awarded by the trial Judge. Without doubt, the trial Judge, we venture to observe with respect, did not make use of all the material available to him in arriving at a sum which could be regarded as a fair and reasonable compensation for the injury suffered by the plaintiff/appellant. We are, therefore, quite satisfied by the facts proved in this case, and by the argument of learned counsel for the plaintiff/appellant, that he (the Judge) did come to an erroneous conclusion as to what the damages ought to be. Admittedly, it is difficult to assess them in this case. Nevertheless, we must do the best we can having regard to all the circumstances.
The appeal against the quantum of damages awarded, therefore, succeeds and 8 is allowed. The award of N400 made to the plaintiff/appellant by the trial Judge in his judgment dated 14th April, 1975, is accordingly set aside. Instead, we award the plaintiff/appellant damages which we assess at N1,800 and this shall be the judgment of the Court. The plaintiff/appellant is also awarded costs of this appeal assessed at N373.00.