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

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.

He now has to wear a permanent shoe raise on the affected leg. I wrote a Medical Report and sent it to the Manager, Dumez Nigeria Ltd. on the 26th October 1976.

Cross-examined by Eyiangho: Nil.

Plaintiff Witness 2 -Idowu Malomo sworn on Bible and states in English.

I live at No.3, Irugbe Street, Off Technical School Road, Benin City. An a Consultant Psychiatrist attached to Psychiatric Hospital Uselu. I know the plaintiff. I knew him as a patient. He was brought to me for treatment in 1976. He was complaining of severe head-ache, severe heat in the brain, sleep disturbance and dizziness. He suffered a severe head injury while at work in May 1976. There was scalp laceration on the head and was unconscious at the Specialist Hospital for about three weeks at the Specialist Hospital, Benin City.

After giving me his medical history I started him on treatment. At the time of his report my observations were the complaints. He was of stable “character and well adjusted before the accident. He had been under continued care since 1976 and he still needs to be under care as he still suffers from the complaints. His head injury was responsible for the complaints. On the 10th of August 1981 I wrote a letter to the Manager, Dumez (Nigeria) Limited. This was the letter admitted and marked Exhibit ‘A’. Since the accident the plaintiff has not been able to revert to his previous level of functioning as he is always full of complaints about his head. This is preventing him from being gainfully employed. He is still under treatment and this may continue for months and years”.

After finding both defendants liable for the negligent act of the 2nd defendant which caused the injuries suffered by the Plaintiff, the learned trial Judge went on to do what may be regarded as his assessment of the damages.

He proceeded as follows:-

“The medical evidence in this case is quite full. The age of the plaintiff was put at 26 years and he was earning up to N280 per month. He was a young man with stable character but he now suffers mental and physical handicap. He is unable to obtain any job and has become unemployed.

It is not easy to assess any damage for such wrongful act which has caused permanent injury to another person but in Lord Dunedin’s Speech in Admiralty Commissioners vs. Susquearpa (Owners) (1926) A.C. 655 the Court should award such damages which …. “so far as money can compensate will give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act.” The judgment of the Supreme Court in Appah vs. Costain (Nigeria) Ltd. and Anor. (supra) also gives a guide to the method of affixing compensation for a claim of this nature. If this accident had not occurred, it was quite likely for the plaintiff to live up to the age of 60 years, earning an average salary as a professional driver of at least N280.00 per month and for 34 years he would have earned a total of about N142,240.00. This evidence was not challenged at all by the defendants. With a disability of about 60% he would have earned not less than N68,544 for the 34 years before attaining the age of 60 years without considering other benefits after that age.

The medical evidence which I accept says that the injuries are continuous and that the plaintiff can never be himself physically and mentally again. This evidence was also not contested by defendants.

Having considered all the facts of this case I hereby award the sum of N50,540.00 damages against the defendants to the plaintiff for the injuries suffered by the plaintiff as a result of the negligent manner in which the 2nd defendant drove and managed the vehicle that was involved in the said accident on 26th day of May 1976 along Benin-Ore Road.” It seems obvious that the learned trial Judge without itemising the elements of the injury, relied on the age of the plaintiff, his earning per month, his physical and mental condition resulting from the injuries he received, and his prospects of obtaining further employment in assessing the damages which Plaintiff/Appellant ought to recover. The Court of Appeal in considering the damages awarded by the learned trial Judge would appear to have accepted the evidence of the medical witnesses as to the injuries to the Plaintiff, but complained that the doctor who gave evidence of the physical injuries to the Plaintiff was not cross-examined and accordingly his expert opinion as to whether Plaintiff could still use his fractured leg in his profession as a motor driver was not available to the Court. The Court of Appeal referred to the other medical evidence and commented that there were serious injuries. The Court of Appeal then cited the case of Lagos City Council v. S.A. T. Ogunbiyi (1969) 1 All N.L.R. 237 at p.300 where it was stated that:

“All awards however should include compensation for loss of earnings, pain and suffering, and the loss of amenities of life.” The Court also referred to Shuaibu v. Maiduguri (1967) NMLR. 302 and Mungo Appah & Anor. v. Costain (W.A.) Ltd. (1974) 11 S.C. 23 and came to the conclusion that plaintiff suffered serious injuries and is 50% permanently disabled and unable to pursue his calling as a professional motor driver. On these considerations the Court of Appeal proceeded to say “having regard to the trend of awards in similar cases, the sum of N50,540 general damages awarded in the court below is in my view, excessive. I consider N15,000 quite adequate in the circumstances, and I hereby reduce the award accordingly”.

Again without specifying the criteria employed in determining the damages awarded and reducing that awarded by the Court of first instance, it seems to me that factors such as;

(a) injuries to the plaintiff resulting in his permanent 50% – 60% disability precluding him from pursuing his calling of a professional motor driver;

(b) pain and suffering resulting from injury; and

(c) comparison with similar cases, were the considerations. I have already set out the questions for determination. The first of them is for this Court to determine whether the Court of Appeal in arriving at the lower figure took into account all the factors surrounding the case. It necessarily follows that if the first question is answered in the affirmative, a fortiori the second. Counsel to the appellant has submitted both in his brief and in his oral argument before us that the Court of Appeal failed to do just that, and that the Court of Appeal was wrong to disturb the damages awarded by the trial Judge. In support of the judgment of the trial Judge’s award of damages Counsel’s submission amounted to the admission that the factors taken into account in the assessment of damages were:

(a) The age of the appellant;

(b) pain and suffering;

(c) disability resulting from the injury; and

(d) loss of amenities of life.

(e) salary per month of the appellant.

He submitted that before the Court of Appeal can reduce the damages awarded, it must be satisfied that the trial Judge had taken into account matters which it should not or have neglected or disregarded relevant matters. He cited and relied on Smith v. Schilling (1928) 1 K.B. 429, 433, and Ogunkoya v. Peters (1954) 14 WACA 505.

Counsel submitted that the Court of Appeal did not take all the relevant factors into consideration before reducing the damages awarded by the trial Court. Counsel observed that only pain and suffering and presumably loss of earnings were considered by the learned Justices of the Court of Appeal. Learned counsel submitted that the Court of Appeal ought to have taken into consideration,

(a) appellant’s loss of earnings down to the date of trial;

(b) future loss of earnings;

(c) loss of amenities;

(d) loss of expectation of life;

(e) general damages;

(f) injuries to the nervous system.

It is necessary to point out at once that the factors for consideration itemised by counsel for the appellant shows a certain degree of unfamiliarity with the principles for the assessment of general damages in personal injury cases. I will deal with that aspect later.

Counsel to the respondent in his reply submitted that the Court of Appeal in assessing the general damages in this case took into account “all the factors surrounding the case”. He referred to the medical evidence which was considered by the Court as the main factors. He submitted that neither the age nor the periodic monthly earnings were pleaded in the statement of claim, and are therefore not factors relevant to the issue of the quantum of damages to be considered by the Court of Appeal. On the second question whether the Court of Appeal was right in reducing the damages Counsel for the respondent submitted that having regard to the fact that the trial court founded his award of damages on facts and matters not pleaded, and which are inadmissible the damages arrived at was wrong and should be corrected. Counsel referred to the judgment of the Court of Appeal where it was held.

“….In the statement of claim, Plaintiffs earnings were indeed not pleaded nor was his age pleaded. Evidence he gave of these matters were therefore inadmissible and should not have been used by the Judge, as they were, for the purpose of computing damages due him,”

and submitted that the award of the trial Judge was improperly computed and that the Court of Appeal was right in reducing the damages awarded, and that the sum awarded by the Court of Appeal was not too low. Counsel pointed out that the award of the Court of Appeal had regard to the awards in similar cases in our courts. Counsel cited and relied on Lagos City Council v. Ogunbiyi (1969) 1 All NLR. 297, 301, Mungo Appah & Anor. v. Costain (W.A.) Ltd. & Anor. (1974) 11 S.C. 23 at p.33 and Howard v. N.C. Joseph Ltd. (1967) CA. No. 295, Nov. 3, 1967 (reported in Kemp & Kemp on the Quantum of Damages Vol.2, at page 10211.) Rose v. Coventry (1965) CA. No. 75A March 15 1965 (reported at page 10318, Kemp & Kemp (supra). Harris v. Bowaters U.K. Pulp & Paper Mills Ltd. (1968) C.A. No. 427 February 13, 1968 (reported at page 10513 Kemp & Kemp (supra) Gall v. Manchester State Co. Ltd. (1974) Lloyds Report 525.

Finally Counsel to the respondents submitted that appellant has not shown that the Court of Appeal failed to take into consideration any factors which it should have considered before unanimously agreeing that the award of the trial Judge be reduced.

It is a well settled principle that a Court of Appeal will not interfere with the finding of the trial Judge as to the amount of damages unless it is satisfied that the trial Judge acted on a wrong principle of law or that the amount awarded is so high or so low as to make it an entirely erroneous estimate of the damages to which the claimants are entitled. – see Ogunkoya & 3 Ors. v. Peters (1954) 14 W.A.CA. 504; Agaba v. Otubusin (1961) All NLR 299.

It seems to have been established by judicial authority that in personal injury cases, two main factors have to be taken into consideration in assessing damages in cases of liability. These are (a) the financial loss resulting from the injury (b) the personal injury, involving not only pain and suffering, but also the loss of the pleasures of life. See Salihu v. Tin Associated Minerals Ltd. (1958) N.R.N.L.R. 99; Shaibu v. Maiduguri (1967) NMLR 56; Mauchev. Durie & Anor. (1970) N.N.L.R. 62. The broad distinction between personal loss and financial loss runs through all the cases.

Perhaps one of the most difficult exercises in assessing damages is the quantification of the loss whether financial or personal. The Court proceeds with the underlying assumption that damages are compensation for injury sustained and are not meant to be punitive – see British Transport Commission v. Gourley (1956) A.C. 185 at p.208, Parry v. Cleaver (1970) A.C.I. at p.33. Again damages are meant to be full and adequate – see Fair v. London & North Western Rail Co. (1869) 21 L.T. 326. In Rushton v. National Coal Board (1963) 1 ALL ER. 314 at p.316 Singleton L.J. said

“Every member of this Court is anxious to do all he can to ensure that the damages are adequate for the injury suffered, so far as they can be compensation for an injury, and to help the parties and others to arrive at a fair and just figure.”

It must be recognised and conceded that the fullness and the adequacy of damages awarded as compensation will in each case depend on proved solid facts of the case and a just and fair assessment of the effect of the injury complained of. Damages are assessed as a lump sum and once for all, not only in respect of loss accrued before the trial but also in respect of prospective loss – see British Transport Commission v. Gourley (supra). It is the duty of the Court to award as perfect a sum as was within its power based on the established facts, accuracy and certainty are often unattainable. Hence in the Ceramic (Owners) v. The Testbank (Owners) (1942) 1 ALL ER. 281 Goddard L.J. said,

“…In an ordinary accident case, there is no yardstick by which the court can measure the amount to be awarded for pain and suffering or ensuring disability.”

Although it has been regarded unsafe to quantify each head of injury separately, it would seem to have been accepted that each head of injury in respect of which damages has been assessed ought to be indicated. This will enable the Court to form an opinion from the evidence and probabilities in the case, of the nature and extent of the loss. When loss of earnings is claimed, the Court would decide what the plaintiff would have been earning but for the injury sustained; and to decide for how long the loss will continue. It will also be necessary to make an estimate of plaintiffs future earnings, despite his disability. The findings of fact are the essential preliminaries to the assessment of damages.

In respect of assessment of damages for personal loss, which involves pain and suffering, and the loss or dimunition of the enjoyment of life, the term “personal loss” denotes every kind of harm and disadvantage which flows from a physical injury, other than the loss of money or property. It therefore necessarily includes the loss or impairment of the integrity of the body; pain and suffering both physical and mental loss of the pleasures of life, actual shortening of life, and mere discomfort or inconvenience.

In assessing damages both the, financial and personal loss factors should be taken into account and compensation given for both types of loss. However damages should only be given for every admissible factor. Although the Judge directs his mind to the factors which are established on the facts the award of damages is made in a single global sum. This was the approach adopted in Agaba v. Otubusin (supra) and Lagos City Council v. Ogunbiyi (1969) 1 All NLR. 297. This has been the approach in the English Courts as far back as in 1879 in Phillips v. South Western Rail Co. (1879), 4 Q.B.D. 406 at p.407 and more recently in H. West & Son Ltd. v. Shephard (1964) A.C. 326. The Courts of this country have adopted the same approach. In this last mentioned case Lord Pearce said,

“if a plaintiff has lost a leg, the court approaches the matters on the basis that he has suffered a serious physical deprivation, no matter what his condition or temperament or state of mind may be. That deprivation may also create future economic loss which is added to the assessment. Past and prospective pain and discomfort increases the assessment….. These considerations are not dealt with as separate items but are taken into account by the Court in fixing one inclusive sum for general damages.”It seems to me obvious from the approach adopted that the items taken into account are no more than factors or aspects of the consequences of the injury complained of.

Accordingly in arriving at a single composite sum for the damages one element and sometimes another may preponderate. It may be on occasions more convenient to separate the elements. It has been found however more convenient to consider all the elements together to arrive at a single global sum. This is done to avoid the possibility of over compensation by making more awards for the same factor and to consider the effect of the injury sustained as a whole – see Agaba v. Otubusin (1961) All NLR. 299 at p.302 where Bairamian F.J. said:

“With respect to the learned Judge, it is clear that he has, unwillingly, granted compensation more than once for what are substantially the same matters, besides being overgenerous and over looking what should be the dominant point, namely – that the plaintiff has not suffered any disability to his earning capacity; … ”

In the appeal before us the criticism of the court below of the trial Judge’s assessment were on the two elements of the age of the appellant and salary claimed to have been earned by him which were not established by evidence. There is no doubt that they were right in their criticism. It therefore follows that the other elements established by evidence before the trial Judge which could be taken into account by the court in assessing damages were accepted by the Court of Appeal. These were namely that appellant was in the employment of the 1st respondent, and had suffered pain and suffering, loss of enjoyment of life, dimunition in his prospect of employment and obviously reduced remuneration actual and potential as a result of the 50% – 60% disability resulting from his one leg being two inches shorter than the other. He is a driver by profession.

The Court below without showing that the learned Judge proceeded on wrong principles so as to make the damages awarded an entirely erroneous estimate merely on the figures considered that the damages awarded to him was too high and proceeded to reduce it. This has never been the law, and the court below was wrong to have acted on that basis.

It is true that the trial Judge did not spell out the heads on which he assessed and awarded the damages but it could be seen from his conclusion that in addition to consideration of the imponderable factors such as pain and suffering, loss of amenities of life and prospect of future earnings, he took into account the age of the appellant at 26 and his actual earnings N280 per month which were not pleaded and which evidence were inadmissible.

In the circumstances, the court below ought to have remitted the case to the trial Judge to assess damages by applying only the elements established before him.

The only facts of injury and pain and suffering and 50%-60% disability taken into consideration do not seem to have taken into account other factors such as loss of amenities of life which is an important factor in assessment of damages in personal injury cases.

In the circumstances of this case where the trial Judge has ceased to be a Judge and it is no longer practicable to remit the case to him to assess the damages in the light of the observations in this case, I think in the exercise of the general powers vested in this Court by Section 22 of the Supreme Court Act 1960, we can exercise full jurisdiction over the whole proceedings and deal with this case in the same manner in which the trial Judge ought to have dealt with it.

In so doing we accept the finding of the court below that appellant did not establish by evidence that he earned N280 per month. It was also not established that he was 26 years old. It was however not denied that he was in the employment of the 1st respondent and was entitled to the statutory minimum wage of N150 per month. It was also not disputed that he was a young man in his prime of life whose future would be affected by the injury. I therefore would in this case assume that appellant would be entitled to not less than N150 per month till such a time when he is likely to retire from the employment.

It is admittedly the practice that awards in similar cases within the jurisdiction is taken as a guide in the assessment of the damages – See Rushton v. National Coal Board (1953) 1 Q.B. 495, Ward v. James (1966) 1 Q.B. 273. Although the award of damages is basically a conventional figure derived from experience and from awards in comparable cases, allowance ought to be made for increases in the rate of earning and for inflation in the value of money earned, and the possibility of early retirement. Again the tendency of wages to rise are also matters to be taken into account. However since some of those are factors which are merely speculative, it is safer in the assessment of future earnings to base damages on the rate in force at the time.

Hence in this case a more acceptable assessment of damages should be one based on an estimate of a fair and adequate compensation for the injuries sustained by the appellant by consideration of the above factors. Of course it is necessary to ignore in such assessment the inadmissible evidence of age and earning included by the learned Judge. If so assessed, the appellant ought to be entitled to N32,400 as damages resulting from his injuries. Accordingly the sum of N15,000 awarded by the court below is hereby set aside. Similarly set aside is the sum of N54,040 awarded by the trial Judge.

The sum of N32,400 is hereby awarded as damages to the appellant as compensation in respect of pecuniary and personal loss resulting from injury arising from the negligence of the respondents.

Counsel to the respondents has invited us to make a pronouncement whether in the circumstances of this case appellant is a third party to which a master – the 1st appellant is saddled with a responsibility under the doctrine of vicarious responsibility.

It was not in the circumstances of this case necessary to consider the issue raised by Counsel to respondent. This is because although respondent had in ground 2 of the grounds of appeal in the Court of Appeal appealed against liability, on the ground that the first defendant ought not to be vicariously liable as the second defendant (even if held liable) was not acting within the scope of his employment, the Court of Appeal accepted the finding of the learned trial Judge that from the evidence when the accident occurred 2nd defendant was on his employer’s business and not on a frolic of his own. The Court of Appeal also accepted the finding that the manner of 2nd defendant’s driving on the road described at 140 kilometres per hour is evidence of negligence and recklessness.

Obviously this was a clear finding that 1st respondent is vicariously liable for the acts of the 2nd respondent.

Respondent who was appellant in the court below, has not appealed against these findings of fact, although respondent gave notice under Order 3 R. 3 Rules of the Supreme Court 1985 seeking to vary the judgment on the above ground. The effect of respondent’s contention in this case will not be merely to vary the judgment, but to reverse the judgment of the learned trial Judge and the court below. The effect of Order 3 Rule 3(1) is to vary the decision of the judgment appealed against on other grounds found in his favour in the judgment.

The rule can only be invoked in support of a ground found but not relied upon in the judgment appealed against. A respondent invoking the rule cannot rely on a ground rejected in such a judgment. In this appeal counsel for the respondent is seeking to rely on a reason rejected by the Court below and which cannot form the basis on which the judgment appealed against can be supported. This is clearly not the intention of the rule. I therefore hold that the invitation is inappropriate.

The appeal is therefore allowed. Respondents shall pay N300 as costs to the Appellants.

SC.125/85