[1952] EACA 60

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and BOURKE, J. (Kenva)

# (1) KUNGO s/o MARUMBA, (2) NJOROGE s/o MACHARIA, Appellants (Original Defendants)

## JAMES JOHN CHAPEL CLARK, Respondent (Original Plaintiff) Civil Appeal No. 9 of 1952

(Appeal from decision of H. M. Supreme Court of Kenva, Harley, A. J.)

### Damages—Personal injuries—Re-assessment by Appeal Court.

On an appeal from an assessment of £10,000 general damages awarded for personal injuries in Appeal Court enunciated the principles in which an Appeal Court can re-assess the damages.

Held (18-4-52).—In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that the Appellate Court should be convinced either that the Judge acted upon some wrong principle of law or that the amount awarded was so extremely high or so very small as to make it in the judgment of the Court an entirely<br>erroneous estimate of the damages to which the plaintiff is entitled.

Damages re-assessed as £5,500.

Cases cited: Flint v. Lovell, (1935) 1 K. B. 360, Owen v. Sykes, (1936) I K. B. 192, Smith v. Kenya Bus Co. Ltd., E. A. C. A. C. A. 45/51.

Appeal allowed.

Chanan Singh for appellant.

Twelftree for respondent.

JUDGMENT (delivered by SIR BARCLAY NIHILL (President)).—This is an appeal against the *quantum* of damages awarded by Harley, Acting J., in the Supreme Court of Kenya to the respondent, who was the victim of a motor accident. There is no appeal against the learned Judge's finding that the appellants were guilty of negligence. The special damage was agreed at Sh. 105. In his judgment Harley, Acting J., dealt very briefly with the issue of general damages. He noted that the respondent's injuries were very severe and after a reference to a recent local case (*Smith v. Kenya Bus Co. Ltd.*, Civil Appeal 45/51) he stated that "having carefully" considered the principles governing the award of damages in such a case" he would assess the general damages at £10,000. Now £10,000, even in these days of the shrinking pound is still a lot of money. Nevertheless as an Appeal Court we are not entitled to review this finding merely because it is probable that had we been sitting in first instance we should have awarded a smaller sum. If we are to review, we must first be satisfied that the trial Judge acted upon a wrong principle of law or that the amount awarded as damages is so high as to make it an entirely erroneous estimate of the damages to which the respondent is entitled. I have taken the above principle from the dictum of Greer, L. J. in *Flint v. Lovell*, (1935) 1 K. B. at page 360 where he says: $-$

"In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this Court be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it in the judgment of this Court, an entirely erroneous estimate of the damages to which the plaintiff is entitled."

This dictum was cited with approval by Slessor, L. J. in another case where the Court of Appeal refused to review an award of £10,000 damages although it thought it was an over-generous estimate (Owen v. Sykes, (1936) 1 K. B. 192).

It may perhaps be as well to observe that in England a running-down action is sometimes tried by a Judge with a jury and sometimes by a Judge sitting alone. Where damages are awarded by a jury, the Court of Appeal has no power to vary the award without the consent of the parties, but it can, if it is of the opinion that the damages in law are indefensible, order a new trial in which those damages may be reconsidered. In these Territories all civil actions are tried by a Judge without a jury so that this Court on an issue such as the one now before us will observe the same principles as govern the conduct of the Court of Appeal in England when dealing with an award of damages assessed by a trial Judge sitting alone. In Owen v. Sykes supra at page 199 Slessor, L. J. stated the position to be this: $-$

"In the case of trials by a Judge alone this Court has power, as the hearing is by way of re-hearing, to consider the matter and decide what damages ought to be awarded."

This power, however, will not be exercised unless the parties wishing to disturb the damages awarded can satisfy us that the Judge has acted upon an erroneous estimate, meaning thereby something in which the error has so tinged the proceedings that it is a proper case for this Court to re-assess the damages.

With the above considerations in mind, I address myself to the facts of this case. First of all there can be no question, as the learned Judge has pointed out, that the respondent was very severely injured. At the time of the accident, which occurred on 19th August, 1949, the respondent was a healthy strong man of 32 years of age. After 17 years in the Army he had risen to the rank of Captain on a short service Regular Commission. He was a keen sportsman; was proficient at outdoor sports, and fond of dancing. He was a trained carpenter and joiner. His salary plus allowances was £1,080 per annum. His short service Commission was due to expire in 1955 but he said in evidence that it would have been possible for him to be re-engaged after that date.

I will not go over in detail the exact nature of the respondent's injuries. It is sufficient to say, that they affected the whole of the left side of his body. At the date when the respondent gave his evidence in the Court below, which was 15 months before the suit came on for hearing before Harley, Ag. J., he still could not maintain his left arm without support. His jaw, which was broken in the accident with the loss of six teeth had set, but he was still unable to open his mouth fully. He could only bend his left leg slightly. He told the Court that in spite of daily treatment his improvement had been negligible. He conceded that his left eye was all right for sight. The above then is a summary of the respondent's condition according to himself when he gave evidence de bene esse on 11th August, 1950. It was unfortunate that this case took so long to come to trial and that the respondent had to leave the Colony, for no one can suppose that his condition was precisely the same over a year later. These two factors must have made it more difficult for the learned Judge to assess the extent of the damage. For example, the medical report on which the respondent relied (exhibit 3) is dated 18th April, 1950, that is 17 months before trial. This report, signed by Col. Thornton, R. A. M. C., contains the following passage: -

"The final extent of recovery cannot be accurately assessed at present, but in my opinion little more can be expected."

Three photographs of the respondent were put in (exhibit 4) by consent. Any layman can see at a glance from exhibit 4 (3) that when this photo was taken there was still considerable wastage of the left arm and biceps muscles. The date of this photograph is given on the back as 20th April, 1951, that is seven months before trial. I have called attention to this difficulty, because taking all the medical evidence into account, both oral and documentary, I think it is correct to say that the doctors did not rule out the possibility of recovery, although there may have been differences of opinion as to the degree of recovery probable. Thus, Mr. Michael Wood, an eminent Nairobi specialist, who was called for the appellant, thought the respondent's left arm would improve under expert treatment in the United Kingdom. He also stated, which is not unimportant, that the injuries were unlikely to affect length of life. He agreed that arthritis might develop and that the respondent must have suffered considerable pain.

I now come to what is in my opinion the most important documentary exhibit of all, namely exhibit A. I say this because it is the last record of any medical examination of the respondent prior to the trial. It is dated 1st May, 1951, that is a little more than six months before trial. This exhibit is an Army Form No. B256A and purports to be a report by the medical officer in charge of the case. It bears no indication of the hospital or treatment centre from which it emanated, but it is a safe assumption to say that the place must have been somewhere in the United Kingdom.

#### I will quote the report in full.

"There has been definite improvement in this officer's lt. arm—grip of the lt. hand has improved and there is definite evidence of recovery of biceps and brachials muscles and the deltoid. In my opinion this lesion is recovering and should continue to recover for some time to come."

There is no indication in the very short judgment how much, if at all, did the learned Judge take this report into account. He notes that the injuries "are very severe". They were very severe but did the learned Judge address his mind to the factor of recovery coupled with the fact that he had no evidence of the respondent's physical condition later than six months before trial? If he did, it is a thousand pities that he did not say so. He does say that he has carefully considered the principles governing the award of damages in such a case but is it safe for this Court to assume, in the absence of any detailed review by the learned Judge, that he has applied those principles to all the material facts disclosed by the evidence? That is an assumption which for my part I am not prepared to make. If he overlooked this favourable report which I feel he must have done then undoubtedly his estimate of damage must have been tinged by error, because this report indicates, not perhaps that the respondent's left hand and arm will ever be quite the same as they were before the accident, but that there is a fair chance that some use of these limbs will be restored. This being the position six months before trial the learned Judge could not reasonably assess damage on the basis that the respondent had been in effect left by the accident a one-armed man, which again I think must have been the basis of his calculation, taking into account the very heavy damages awarded. This oversight on the part of the learned Judge in my view alone fully entitles this Court to make a re-assessment of the damages.

I have already referred to the difficulty this Court has been placed in by the non-disclosure of the Judge's reasons. I have also mentioned his reference to the Smith case, from which I infer that the learned Judge, having read the exhaustive review by the trial Judge in that case of the factors to be taken into account when assessing damage, made up his mind to apply, and did apply the same tests. I was a member of this Court which heard the appeal in the Smith case, but to

refresh my memory, I have again studied its circumstances. No two running-down cases will ever produce quite the same set of facts, but there are some points of resemblance as well as points of distinction between these two cases. Smith was a non-commissioned officer in the Army and a man in the prime of life who was also a keen sportsman. He received very severe injuries to his right side and a fracture at the base of the skull as well. He was a metal beater by trade and it was proved that he would never be able to resume this occupation in civil life. As a result of the accident his right leg was shortened by 2 inches. He could not walk without a limp or walk far at all without resting. A medical witness said that this condition could not be alleviated. There was a more serious factor still; owing to his injuries and to the necessity of staying in bed, he had developed a heart condition known as coronary thrombosis or blood clot. The doctor said that this condition had definitely shortened his expectation of life. Compare this with Mr. Wood's evidence in the instant case, which was to the effect that expectation of life had not been shortened. Again, has the learned Judge noted this distinction between Smith and Clarke? If he did, with respect, he should have said so, for in the absence of any record in his judgment, it is impossible for us to assume that he did. On the medical evidence in the Smith case the learned Judge found the percentage of disability at 50 per cent, but assumed that this might increase. In the instant case, unfortunately, there is no such clear finding, but I think on the evidence and with every desire to be fair to the respondent, it would be safe to say that his disability may also have been 50 per cent at the date of trial but with a fairly safe assumption that this would decrease. The damages in the Smith case were fixed at £6,000 and were not made an issue in the appeal to this Court. It would be dangerous to stress comparison between the two cases too far but I think I have said enough to indicate that if £6,000 was a fair figure for Smith, this £10,000 for Clark is undoubtedly excessive. Admittedly, any Court whose duty it is to assess damage in a case such as this, has cast on it a most heavy burden, because there will always be a host of uncertain factors, which must necessarily be a matter of mere speculation. For example, what is Capt. Clark's value in the labour market if he has to return to civil life? The evidence suggests that as a carpenter and joiner his value may be nil. He concedes that he can do clerical work. It would be surprising if he could not, in view of his successful army career. He is a right-handed man, so that his left-arm disability, even if it does not improve greatly, should not reduce his earning value very much,

I have discussed the case with my learned brothers who are of the same opinion that this is a case where a re-assessment of the damage awarded by the trial Judge must be made, because it is very evident that through an apparent failure to take into account all the circumstances, he did arrive at an entirely erroneous estimate.

Giving the best consideration to this case that we can, we think it reasonable that the figure of general damages should be reduced to £5,500.

This appeal is accordingly allowed with costs.

SIR NEWNHAM WORLEY (Vice-President).— I concur and have nothing to add.

BOURKE J. (Kenya).—I concur.