Samson Ediagbonya V. Dumez (Nig.) Ltd & Anor. (1986)

LawGlobal-Hub Lead Judgment Report

KARIBI-WHYTE, J.S.C. 

This is an appeal against the judgment of the Court of Appeal Division sitting at Benin City which on the 13th December, 1984, set aside the judgment of the High Court, Benin City wherein, the present appellant as Plaintiff was awarded the sum of N50,540 as damages in an action for negligence against the defendants. The Court of Appeal has reduced the damages awarded to N15,000. This is the appeal before us. There is only one ground of appeal which is as follows –

“1. The damages awarded by Honourable Justice of Court of Appeal is unreasonably low having regard to the circumstances of the case.”

The relief sought is to set aside the award of N15,000 general damages awarded by the Court of Appeal and to restore the general damages of N50,540 plus N600.75 costs awarded by the High Court, and to make such other orders or order as this Court may deem fit in the circumstances. It is clear from all the papers filed that the appeal is only against the quantum of damages.

The respondent who was appellant in the court below has not appealed against liability, but has on the other hand supported the judgment of the Court of Appeal. He has however sought to vary the judgment on a ground rejected in the court below. It is important for a clear understanding of the issues for determination in this case to put the facts in their correct perspective.

The questions for determination as formulated by Counsel for appellant are as follows:-

(a) whether the Honourable Justices of the Court of Appeal, Benin Branch in assessing general damages for personal injuries sustained by the Plaintiff/Appellant took into account all the factors surrounding the case;

(b) whether the Justices of the Court of Appeal were right to interfere with the award of the trial Judge, and if so, whether the amount of N15,000 was not too low.”

Appellant and the 2nd respondent were at all material times covered by the facts of this case employees of the 1st Respondent. Appellant was employed as a professional driver, the 2nd Respondent as an Engineer. On the 20th May 1976, appellant was to drive the 2nd respondent, first to a send-off party at Ofusu, and subsequently to a quarry site supervised by the 2nd respondent in the course of his employment. The evidence accepted by the learned trial Judge and the Court of Appeal was that at all material times, it was the 2nd respondent and not appellant who was in control and was driving the vehicle Peugeot 404 Pick-up van with registration No. LZ 2167. Appellant was in front sitting by 2nd respondent. They had left the send-off party at Ofusu and were going to the site of the quarry when the vehicle which was being driven at excessive speed ran into pot holes on the road near Ore and somersaulted. Appellant sustained injuries which is the cause of action for negligence against the respondents in this case, claiming N100,000 as general damages.

The particulars of injuries and the nature of the damages suffered and the general reaction to his predicament were pleaded in paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 25, 26, 27 of the statement of claim. These were elaborated by the oral testimonies of plaintiffs/appellants witnesses. The defendants in their statements of defence joined issues with the plaintiffs in respect of the averments referred to but did not give any evidence at the trial.

It is relevant to set down in full the relevant portion of Christopher Ogiehor, Plaintiffs first witness and Idowu Malomo, a Consultant Psychiatrist – the doctors who treated him of his injuries.

“Plaintiff witness 1 – Christopher Ogiehor sworn on Bible and states in English. I live at No. 24, Ewa Road, Benin City. I am a Medical Doctor in general practice. I retired as a Senior Consultant in Orthopaedic Surgery Specialist Hospital, Benin in 1979. I know the plaintiff very well. He was brought into our surgical ward as a stretcher patient on 27th May 1976. He had a road traffic accident.

I examined him and found multiple injuries. My salient findings were as follows (1) Scalp laceration and on the left side of the face was a bruise (2) He had multiple contusions on the left shoulder area and the left side of his chest, (3) He also had a multiple fracture of his right femur (4) A swelling on the right side of his neck. He was admitted and treated for these injuries. His fracture was mainly managed by me; and he was put on skeleton traction in order to reduce the fracture. He decided to discharge himself against medical advice after staying for a few days in the ward. About three months later he came back to the Hospital complaining that he had been to native doctors and that his fracture showed no improvement. He was then re-admitted. At this time his general condition was good, except for the fractured leg. We ex-rayed it and found it to be uniting but not united. It was quite tender to touch. Clinical assessment showed that he had a lump on the leg and was tender at the fracture site. A radiological assessment showed that his leg was two inches shorter. We tried all we could for him.

From my total assessment of him at the age of 26 years he was two inches of shortening disability and that such shortening was a severe one. His permanent disability could be about 50 to 60 per cent.