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15TH FEBRUARY, 1962.

3PLR/1962/122  (FSC)







JOHN IDOWU CONRAD TAYLOR, F.J. (Read the Judgment of the Court)



APPEAL – Damages -Assessment of by appellate court- Principles applica­ble.

TORT AND PERSONAL INJURY – DAMAGES – Measure of – Assessment of market value of totally destroyed motor vehicle.




Omotosho -for the Appellant.

Thompson – for the Respondent.


TAYLOR, F.J. (Delivering the Judgment of the Court): The plaintiff/ap­pellant was the successful party at the trial in the High Court of Lagos on a claim for £3,032-15s-0d being general and special damages suffered by him as a result of the negligent driving by the defendant/respondent which brought about a collision between their motor vehicles. There were ten sub­heads in the claim for special damages, and the appellant succeeded fully on four of these and partly on two. This appeal, however, was fought out only on item 8, which was disallowed by the trial Judge and which reads as fol­lows:­


“8.     Value of the car £1,890 less depreciation of 3d per mile for 23,568 miles covered …… £1,621-8s-0d.”


The learned trial Judge, on this head of damage, says this:­


“As to item 8, namely the value of the motor-car, the evi­dence, which is undisputed, is that as a result of the accident the plaintiff’s motor-car became a total wreck. It is, I think, well set­tled that where a motor-car is so damaged as to be a total loss, the measure of damages is the market value of the car at the date of the loss and the cost of hiring a substitute until a new car is pro­cured and made fit for use, less the scrap value of the damaged motor car. There was no evidence before me of the market value of the car at the date of the loss, and this item must be disal­lowed.”


Mr. Omotosho, arguing for the appellant, has urged that in so far as the trial Judge had the following data before him, i.e. (1) the original value of the car, (2) the age of the car, (3) the mileage it had covered at the time of the accident, and (4) the sum claimed by the appellant less amount allowed for depreciation, he was in a position to make a reasonable assessment on this head. Mr. Adewale Thompson, on the other hand, contended that this being an item of special damage, it must be specially proved and there being no evidence of any expert as to the market value of the car at the time of the ac­cident, the appellant could not succeed on this item of damage. He also drew our attention to the conflict on the record between the claim and the appellant’s evidence.


The sole issue before us is whether the trial Judge should, as he did, have disallowed this head of damage or have made a reasonable assessment based on the facts placed before him. It is not disputed that the appellant was entitled to an award on this head. In an action sounding in negligence actual damage must be proved, but the value of a used article or chattel is not an item of special damage in the sense that it can be exactly quantified like the cost of repairs or the expenses of hospital treatment. It is open to either party to call evidence and the Court must do the best it can on the material before it. The evidence adduced by the appellant that his car was valued at £1,503 in January, 1955 was unchallenged, as was the evidence that it had covered 23,568 miles on the 26th February, 1959, when the accident occurred. There was also evidence given by P. W.4 that the model 72R possessed by the ap­pellant, was no longer available on the Nigerian market and that this model was now replaced by the Buick Riviera “Electra” model costing ex Lagos £2,125 with an air conditioner at the inclusive cost of £300. In addition to this the trial Judge had exhibit’J’ before him, which was the Credit Note showing that the appellant’s account had been credited with the sum of £120 by the United Africa Company of Nigeria Ltd. as the proceeds of sale of the sal­vage.


The market value of any article is the sum it would fetch under the state of things for the time being existing. It is a matter of estimation on which opinions often differ. In the case of the White Cross Insurance Co. Ltd. & Anor. v. John Mbaeri, No. C/41/1959 heard in the High Court of Calabar, the plaintiff led evidence to show that he paid £1,002 for his lorry and its ac­cessories in March, 1958, and claimed this sum as the pre-accident value of the lorry on the 1st February, 1959 when the accident took place. The defen­dant offered £200 which was rejected by the plaintiff. Kaine, J., held that:­


“All the plaintiff has proved is the sum of £1,002 which he paid for the lorry and its accessories in March 1958. This is also the amount contained in his policy but the accident took place on 1st February, 1959 barely a period of one year after which the lorry has been on the road and I am inclined to agree with the de­fendant’s Counsel that there must be some depreciation in the value of the pre-accident value of the vehicle. There is no evi­dence before me to show what this depreciation should be but since a lorry which is in daily use can hardly last for more than four years I estimate the depreciation for a year to be at least 25 and the pre-accident value of the lorry to be 75% of the sum of £1,042 which is roughly £750.”


On appeal to this Court reported in [1961] 1 SCNLR 190, we held that:­


”The main bone of contention on this appeal is whether the trial Judge was right, in view of his finding that there was no evi­dence of what the depreciation should be, to have made an esti­mation without this evidence.”


and a little lower down, that:­


“It is quite clear from the judgment of the trial Judge that he rejected the respondent’s valuation of £1,002 as the pre-accident value of the vehicle. The figure of £200 offered by the appellant and referred to in exhibit `C1’ was also rejected. It was then left to the trial Judge to come to a reasonable figure.”


The appeal succeeded, but on a different point -i.e. that the trial Judge in estimating the depreciation at 25% did not take into account the fact that when the lorry was purchased in 1958 for £1,002 it was in all probability a sec­ond-hand vehicle. The case was sent back with a direction to the trial Judge to make a finding on this point.


In our view the learned trial Judge in this case on appeal, with the data he had before him, should have made a reasonable estimation of the depre­ciation of a four year old car that had done 23,568 miles at the time of the ac­cident and which type of car was no longer available on the Nigerian market, with its consequences on the availability of spares and its non-demand in the second-hand market. Taking all this into account we assess the pre-accident value of the car at £250. The appellant will be entitled to this sum less £120, being the amount obtained for the scrap value of the car.


The appeal is allowed and the Judgment of the High Court is varied to that extent. The appellant is entitled to his costs of this appeal, which I would assess at £42-9s-6d.


ADEMOLA, C.J.F.:          I concur.


BRETT, F.J.:         I concur.


Appeal Allowed.



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