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AKUFO v. ISSAKA AND ANOTHER


  • New
  • 1962-10-01
  • HIGH COURT
  • 2 GLR 88-90
  • Print

APALOO, J.


Summary

Personal injuries?-Damages?-Accident occasioning the amputation of both legs just above the knee?-Quantum of damages.

Headnotes

The plaintiff, aged 24, and a lorry driver on a salary of G10 16s. per month, was involved in a motor accident which resulted in the amputation of both legs, above the knee. He was in hospital for approximately five months. He is illiterate, and was, before the accident, a keen football player. He sued the first defendant as owner, and the second defendant as driver, of the offending vehicle for damages for personal injuries. Liability was not contested.

Judgement

ACTION for damages for personal injuries.

In this action the plaintiff claims damages against the defendants for injuries sustained by him in a motor accident which occurred at Kumasi on the 1st September, 1960. The plaintiff claims that the accident occurred as a result of the negligent driving of the second defendant who was the servant and agent of the first defendant. In view of the events which I will relate, the only matter left for determination is the quantum of damages to which the plaintiff is entitled.

The writ in this case issued on the 17th February, 1962. To it was attached a statement of claim. The record shows that these were served on the first defendant on the 19th February, 1962. He entered no appearance and filed no statement of defence. Accordingly, on the application of the plaintiff, I entered interlocutory judgment in his favour against the first defendant on the 30th April, subject to the assessment of damages on the 8th May. The second defendant has not been served with the writ, attempts to serve him having failed. Accordingly, the judgment which I will deliver in this case will affect the first defendant alone.

On the 4th May, 1962, Messrs. J. J. Peele entered appearance on behalf of the first defendant and on the 8th May moved to have the interlocutory judgment set aside on the ground that the plaintiff elected to and in fact received compensation under the Workmen's Compensation Ordinance1 and was therefore precluded by the provisions of section 24 (1) of that Ordinance from proceeding with the present claim. The plaintiff resisted this application and while admitting the payment to himself of the sum of G695 by the labour officer denied that he had [p.89] applied for compensation under the said Ordinance, or that he had elected to forego his right to damages at common law. In order to rule on this preliminary question, I took evidence on the 15th May, 1962. On the 24th May, 1962, I delivered a ruling in which I held that the defendant's preliminary point failed and that the plaintiff was entitled to pursue his claim for damages at common law. I put the plaintiff to his election to claim compensation under the Workmen's Compensation Ordinance or to pursue his claim for damages at common law. In the event of the plaintiff electing the latter, I ordered that he should refund the sum of G695 which was paid to him ostensibly under the Workmen's Compensation Ordinance. That sum has since been lodged into court.

In my said ruling of the 24th May, I, in the exercise of my discretion, gave leave to the defendants to file a defence if they were desirous of defending the suit on its merits notwithstanding the fact that their application for setting aside the interlocutory judgment had failed. My object was to discharge the interlocutory judgment if this was done and permit the action to be fought on its merits in view of the somewhat grave consequences that judgment may entail for the defendants. Presumably acting on the said order, a statement of defence was lodged on behalf of the first defendant on the 14th July, 1962. In that statement, the first defendant denied the allegation of negligence and in the alternative pleaded that the plaintiff was guilty of contributory negligence. When hearing eventually opened before me on the 25th September last, counsel for the first defendant told me he had instructions not to proceed with the defence filed. Accordingly, the interlocutory judgment stood and as I said, the only matter left for determination is the damages to which the plaintiff is entitled for his injuries.

No medical evidence was called on behalf of the plaintiff. I regard this as unfortunate. The only injury which the plaintiff suffered and which has been proved to my satisfaction is the loss of his two legs which were amputated just above the knee leaving in each case a short stump. I feel no doubt that this would, in the ordinary nature of things have occasioned great pain and suffering to him. I am also satisfied that the plaintiff was admitted in hospital on the 1st September, 1960, and remained there until January 1961, a period of approximately five months.

The plaintiff is a rather young man who gave his age as 24 years. He has never been to school. In June 1959, he obtained a driving licence and was employed by a Mr. Zakour in driving a bakery van and was so employed at the date of the accident. He was in receipt of a salary at the rate of G10 16s. per month. He is married and has two children. He is now quite obviously unemployable and may well remain so for the rest of his life. He knows no other trade or profession and is unlikely in view of his present condition to receive any vocational training. There is a probability that he may be fitted with artificial limbs and with time, may just manage to hobble along on crutches, but it seems plain that for some considerable time to come he would need to be assisted in doing a good many things. On all occasions that he came to court in connection with this case, he had to be carried and sat on the public desk with obvious discomfort.

The plaintiff testified that before his unfortunate accident, he played football and was the goalkeeper of a local football club at Adeiso known as Young Hearts. Although he earned no income from Football, It is an amenity which he was entitled to enjoy and which if I understand the [p.90] present state of authorities aright, ought to be taken into consideration in assessing damages in favour. It is possible that his expectation of life has been reduced by reason of his injuries but in view of the total lack of medical evidence, there is no material on which I can come to this conclusion. Accordingly, I do not propose to take this into consideration in quantifying the damages.

Mr . Aboagye for the plaintiff while leaving the question of damages to me has asked that they should be substantial . Mr. Davey for the defendant has with admirable fairness given me a useful review of the matters which I ought to take into consideration in assessing damages in favour of the plaintiff, namely, the possible loss of income for the remainder of his working life, his obvious pain and suffering, the loss of amenities of life, the inconvenience and discomfort that the plaintiff would suffer for the rest of his life by being bereft of his two legs. Quite frankly, I do not find it easy to put a pecuniary value on these matters and I echo the difficulty which judges before me have expressed when confronted with a similar task.

In this country, where claims of this nature are far less frequent than in England there is not a great body of case law giving a general guidance as to awards previously made by the courts for comparable damage. There is little doubt, however, that with the passage of the Motor Vehicles (Third Party Insurance) Act, 1958,2 claims of this nature will increase and there will not be in the future, as at present, a dearth of previous local judicial authority. Both counsel have referred me to Kemp and Kemp on Damages, a rather invaluable handbook on these matters. I have looked at it and have seen the damages awarded by the courts in England for injuries very similar to those suffered by the plaintiff. I have also myself referred to Munkman?'s Damages for Personal Injuries and Death. The damages awarded by different judges in fairly comparable cases vary widely and nothing like a pattern can be said to emerge. This merely underlies the fact that the assessment of damages in matters of this sort is essentially a matter of impression and common sense. In the end, the question which I have to answer is: What is a fair and reasonable compensation to award to this rather young man who is certainly grossly handicapped by the permanent disabilities of amputations? I take into account all those matters which Mr. Davey has fairly and properly asked me to take into consideration, and in addition thereto the present-day decline in the value of money. On the other side of the picture, I do not forget that the plaintiff could be fitted with artificial limbs and may then get along a great deal better than at present, and with luck might get some unskilled sedentary work. Doing the best I can, and taking all those factors into consideration, the lump sum figure at which I arrive is G4, 750. I give judgment for the plaintiff for that sum and assess costs at 100 guineas inclusive.

Decision

Judgment for the plaintiff.

Plaintiff / Appellant

I. R. Aboagye

Defendant / Respondent

G. Davey

Referals

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