Lagos City Council (Trading Under The Name Of Lagos City Transport) V. S. A. J. Ogunbiyi (1967) LLJR-SC

Lagos City Council (Trading Under The Name Of Lagos City Transport) V. S. A. J. Ogunbiyi (1967)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.N.

The defendant/appellant runs transport service in Lagos and its environs, and it is not in dispute that the plaintiff/respondent on the 12th August, 1965 travelled in one of its buses along Ikorodu Road from Lagos. A lady was the conductress in charge of the bus and the plain-tiff/respondent paid his fare of 8d. by tendering Is. to the conductress who said she would give the change later. The plaintiff/respondent got to his destination and demanded the change of 4d.; he was given a sum of Id. and an argument ensued. The conductress pressed the bell for the bus, which was then at a standstill, to move.

The plaintiff/respondent asked her to stop the bus as he must get down; he returned the Id. to the conductress who then pressed the bell and the bus stopped. It would appear that before the plain-tiff/respondent actually alighted from the bus the conductress pressed the bell and the bus moved. The plaintiff/respondent fell down, his two legs were crushed and he had to be carried to the hospital. His right leg was amputated above the knee and the left leg which was saved, according to the surgeon, may have to be amputated at a future date.For the present it would continue to cause him constant pain. In an action for negligence brought by the plaintiff/respondent the learned judge in the High Court of Ikeja awarded him damages of £15,741 and 250 guineas costs.

This appeal is against both the decision and the amount awarded as dam-ages on the ground (1) that as the action was not commenced “within three months next after the act complained of’ the defence or plea under section 2 of the Public Officers Protection Act should have succeeded and (2) that damages awarded in any case was excessive.

On the first ground it was argued that the Lagos City Council being a corporate body and running transport service for profit by virtue of sections 9(d), 92 & 142 of the Lagos Local Government Act, Cap. 93, its officers can claim the protection of the Public Officers Protection Act. It was not seriously contested that the officers of the Lagos City Council are not en-titled to the protection of the Act but what has come up for decision is whether the protection which the Act affords can be claimed where the act of the defendant was malicious.

There was ample evidence before the learned trial judge, which he accepted, that there was exchange of words in the bus and the conductress became abusive, violent and intolerant to the plaintiff/respondent and that her action was deliberate when she pressed the bell for the bus to move on, knowing well that the plaintiff/respondent had not fully alighted from the bus. There can be no doubt that the evidence before the learned trial judge, if accepted, provides ample grounds for coming to the conclusion that the action of the conductress was malicious.

It was argued that to rely on the protection of the Act, one who claims the protection must have acted without malice. In other words if the acts are done maliciously the Act will not afford protection. In the case Newell v. Starkie (1920) P C. 89 L. J. R. 1, where a plea of malice was considered as affecting the protection of the English Act, Lord Finlay at page 6 of the report said:-

“The second observation which I have to make is that the Act necessarily will not apply if it is established that the defendant had abused his position for the purpose of acting maliciously. In that case he has not been acting within the terms of the statutory or other legal authority. He has not been bona fide endeavouring to carry it out. In such a state of facts he has abused his position for the purpose of doing a wrong, and the protection of this Act, of course, never could apply to such a case.”

We are in agreement with the views of the learned judge that the evidence before the court provides ample justification that the conductress had acted maliciously and her actions had debarred her from the protection of the Act.

Learned counsel for the appellants, however, submitted that as malice was not specifically pleaded by the plaintiff/respondent the learned judge was wrong to have inferred it from the evidence before the court. We do not see any substance in this submission since it was clear from paragraph 7 of the statement of claim that the plaintiff had alleged that the conductress acted maliciously. In fact, apart from the general traverse there was no denial of this paragraph in the statement of defence. This ground of appeal therefore fails.

The only other ground of appeal argued before us was on the quantum of damages awarded. In this connection an item of £500 was awarded by the learned trial judge for loss of expectation of life. Counsel for the appellant argued that there was no medical evidence on this point and the judge was in error in making this award without such evidence. In his judgment, the learned judge in making his award of damages said as follows:-

“I consider the plaintiff’s condition to be very serious and pitiable. I hereby award the plaintiff damages as follows:

(a) £241 special damages; (b) £500 for loss of expectation of life and (c) £15,000 as general damages, of which, in my estimation, £5,000 should be attributable to his being conscious of his present unfortunate condition and its attendant handicaps to him for the rest of his life.”

With respect to the learned judge we do not see how he came to award the £500 under item (b) since this was never made a separate item of claim in the writ, in the particulars of claim made by the plaintiff nor was it made a claim in his statement of claim. We are of the view that the award under this item must be disallowed.

We now come to the award of £15,000 as general damages which the learned judge put as item (c) in his judgment aforesaid. Counsel for the appellant has argued that the amount awarded as damages under this head is excessive and unreasonable and that this Court ought to interfere. We do not wish to disguise the fact that the question of quantum of damages is always a difficult problem that the law or the judge has to face. One cannot minimise the extremely difficult task of a judge when he has to assess damages in these cases; and this Court, as a court of appeal is always reluctant to interfere with awards made by judges unless the award made is excessively high or unreasonably low. All the same there are no special criteria whereby the appeal court is to judge what is excessively high or unreasonably low. All awards however should include compensation for loss of earnings, pain and suffering, and the loss of amenities of life. It is therefore part of our duty to examine the injuries suffered by the plaintiff/respondent in this case. These are what Mr. Ogunyemi, the surgeon, had to say about the condition of the plaintiff/respondent when admitted into the hospital on 12 August, 1965:-

“I examined him and I found that he was severely shocked. Both his lower limbs were badly crushed-the right more crushed than the left. The extensive lacerations were such that on the right side the muscles of the right leg were torn thread-bare, exposing the two bones of the lower right leg converting them into open fractures. There was a complete degloving of the left foot involving the ankle joint”.

The surgeon then proceeded to the treatment he gave the patient. He said:-

“His shock was energetically handled by blood transfusion, until he recovered. A classical above the knee amputation was performed on the right leg as attempts to save the leg were abortive. The degloved left foot and ankle were sutured with relaxing incision and later on a split skin graft was performed on that foot. He was given drugs and two pints of blood”.

The surgeon continued as follows:-

“During the first few days the plaintiff was very uncomfortable and he was in the hospital for about 4 months. He was discharged on 15 December, 1965 with above-knee artificial limb which he paid for. He was reporting to the out-patient clinic until 23 February, 1966 when his disability was assessed at 80% total”and the prognosis by the surgeon which must cause one some concern are:-

“His left foot is as good as useless and he would be having constant excruciating pain. It may have to be amputated later”.

The learned judge in his judgment considered the evidence in the case and reviewed many authorities in his consideration of damages. He then continued:-

“It is clear to me that the attitude of the courts has changed radically from the award of what were formerly regarded as standard sums of higher figures because they now talk in terms of substantial damages as in West v. Shephard (supra) and a large sum for compensation as in Oliver v. Ashman (supra) especially in cases where the victims of personal injuries are bound to be conscious of the losses they suffer and are liable to be subject to continued suffering etc…….”

After an exhaustive examination of the recent trend of the courts in awarding damages in these cases, we have come to the conclusion that the learned judge has given far too high a figure as general damages. We realise the fact that the plaintiff/respondent has suffered a full disability of one leg and a probable full disability of the other. He has lost his employment there-by and at the age of 63 (he was 59 at the time of his misfortune) he is unlikely to get any other employment with his disabilities. But with his personal life thus affected the plaintiff/respondent is not altogether useless and not unable to rehabilitate himself and we should not be unduly pessimistic about that although he is greatly handicapped. We are in this respect not unmindful of the views expressed by the learned trial judge when in his judgment he said as follows:-

“In this case, the plaintiff was a well-developed man of about 59 years of age at the time of his misfortune, and, from the evidence before me which I accept, and as I can judge from his appearance even in his handicapped state, there is no doubt that he has lived a full life, and well too. He was even fairly well-to-do, being able to own a car of his own, which shows that he was then able to earn additional income to his employment wages. Now, suddenly, and for all times till his death, he becomes cut off from the life he used to live and enjoy, and he is saddled with the prospect of constant pain and the possible loss of his other leg which even now is virtually useless to him according to the doctor’s evidence which I accept”.

After the most anxious consideration, we feel that it is the duty of this Court to interfere and we would allow the appeal by reducing the general damages to £5,000.

We accordingly order as follows:-

(1) that the appeal against the decision of the Ikeja High Court dated 23 January, 1967 in Suit 1K/73/66 with respect to liability be dismissed.

(2) that the appeal against the amount of damages awarded be allowed and that the order of the said High Court in that respect including the order for costs be and is hereby set aside;

(3) that the plaintiff be and is hereby awarded £241 as special dam-ages and £5,000 as general damages with costs assessed at 200 guineas, and this will be the judgment of the Court; and

(4) that the defendant/appellant be and is hereby awarded costs of this appeal assessed at 10 guineas.

Other Citation: (1967) LCN/1369(SC)