[1955] EACA 125

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR ENOCH JENKINS, Justice of Appeal, and BRIGGS. Justice of Appeal.

## (1) CHANNAN SINGH and (2) GAJJAN SINGH, Appellants (Original Plaintiffs) $\nu$ .

## CHANAN SINGH and HANDA, Respondents (Original Defendants) Civil Appeal No. 17 of 1953

(Appeal from the decision of H. M. Supreme Court of Kenya—Windham, J.)

Negligence—Suit filed by advocates out of time—Indian Contract Act, Section 194—Appeal by joint plaintiffs—Damages—Re-assessment by Court of Appeal.

The respondents took the preliminary point that the appeal by the appellants was bad for misjoinder of appellants. The appellants had, properly, sued jointly in the Supreme Court in a single suit and there was a single judgment.

Held (22-12-54).—The appellants having been properly joined as co-plaintiffs and their cases being the same although their causes of action were distinct, and their grounds of appeal being the same, it was correct for them to appeal as joint appellants.

Preliminary objection dismissed.

Case referred to: Re Marquis of Ailesbury (1892) 1 Ch. 605.

The appellants had travelled in a motor-car in Tanganyika and were injured in a collision caused by the negligence of the driver of the other vehicle concerned therein. They instructed the respondents, advocates practising in Kenya, but not in Tanganyika, to sue the driver for damages for personal injuries and it was understood that the proceedings would be instituted in Tanganyika.

The respondents retained the general responsibility of the conduct of the action but appointed Mr. M., an advocate practising in Tanganyika, to appear for them at the hearing and to lend his name as "solicitor on the record".

By section 5 of the Kenya Limitation Ordinance a suit for personal injury can be brought within two years after the cause of action arises, but in Tanganyika, under Article 22 of the Indian Limitation Act, an applied Act, the period is one year from the time when the injury is committed.

The injuries were caused on 16th June, 1948, and, on 11th June, 1949, the respondents wrote to Mr. M.'s firm enclosing the engrossed plaint in triplicate, and asking them to file the same in court "if the same is in order". The letter was opened in Mr. M.'s office on 13th June, 1949, but Mr. M. did not himself see it until after the period of limitation had run out, when he returned it to the respondents for some minor amendments and pointing out that the plaint had not regularly been signed.

The proceedings against the driver having been filed out of time, the defence of limitation was raised, was unanswerable, and the suit was marked "settled" on terms that the claim was dropped and a nominal sum paid as costs.

The appellants then successfully sued the respondents in the Supreme Court for negligence but appealed on the ground of inadequacy of the damages awarded. The respondents counter appealed on the ground that no damages should have been awarded since no negligence had been proved. They contended that if anyone

was to blame it was Mr. M. and they sought to shelter behind section 194 of the Indian Contract Act, which provides: "Where an agent, holding an express or implied authority to name another person to act for the principal in the business of the agency, has named another person accordingly, such other person is not a sub-agent but an agent of the principal for such part of the business of the agency as is entrusted to him."

The trial judge was under a misapprehension as to part of the medical evidence tendered and had overlooked certain admissions by the respondents' medical experts.

Held $(22-12-54)$ .—(1) The effective cause of the appellants' loss was the negligence on the part of respondents in overlooking the question of limitation under Tanganyika law, it having been their duty, either to make a Tanganyika advocate responsible on this point<br>by handing over the general conduct of the proceedings to him, or, alternatively, to<br>ascertain for themselves the relevant Tanganyika l

(2) Not having entrusted a Tanganyika advocate to act generally in the case, and<br>so incidentally to require him to ensure that the proceedings were filed within the duc<br>period of limitation, the respondents could not rely Act because of words "for such part of the business of the agency as is entrusted to him".

(3) The trial Judge having misdirected himself on the medical evidence, and thus having acted on a wrong principle, the Court of Appeal was justified in re-assessing the damages in the light of its own opinion of the evidence tendered before the trial court.

Substantive appeal allowed and award of general damages increased. Cross appeal dismissed.

Cases referred to: Fletcher & Son v. Jubb, Booth & Helliwell (1920) 1 K. B. 275;<br>Traill v. Bowker (1947) 14 E. A. C. A. 20; Saint v. Hogan 20 E. A. C. A. 85; Davies v.<br>Powell Duffryn (1942) 1 A. E. 657; Purves v. Landell 8 E. R. 13

Salter, Q. C. (Oulton with him) for appellants.

## Nazareth for respondents.

BRIGGS, J. A.—This is an appeal from a judgment of the Supreme Court of Kenya awarding damages for negligence to the appellants. The appeal is brought on the ground of inadequacy of the damages awarded. The respondents crossappealed on the ground that no damages should have been awarded since no negligence was proved. The respondents also took a preliminary point that the appeal was bad for misjoinder of appellants. As they sued jointly in the Supreme Court in a single suit, there was a single judgment, and there would have been, if anyone had troubled to extract it, a single decree, it was a somewhat astonishing suggestion that they could not appeal as joint appellants. We were told that there had been some confusion in the Supreme Court on this question, and we were referred to Mulla's Code of Civil Procedure, 12th Ed. 358, where it is stated: "It is irregular for defendants with different defences to a suit and with different grounds for appeal to join in a single appeal; *aliter* where the defence is the same." Whatever authority this statement may have as regards appeals to the Supreme Court of Kenya, it has no relevance to this appeal. These appellants were properly joined as co-plaintiffs and their cases not only were, but were bound to be, the same, though the causes of action were distinct. Their grounds of appeal are also the same. There is nothing in section 66 or section 72 of the Civil Procedure Ordinance or in the Rules of this Court, old or new, which precludes joint appeals. The English rule appears to be that any persons who were parties to the judgment may appeal jointly from it and, without discussing cases where persons not parties to the judgment may appeal, the rule in its simple form certainly applies in this Court. The inconvenience of multiplying appeals is obvious, and it is undesirable that a person supporting an appeal should be made a respondent, instead of an appellant, since he is not in that case ordinarily allowed to address the court in support of the appeal, though this can be done. See Re Marquis of Ailesbury (1892) 1 Ch. 605. We dismissed the preliminary objection.

Since the substantive appeal would have fallen to the ground if the crossappeal succeeded, we heard the cross-appeal first. We dismissed it with costs and I give shortly the reasons which satisfied me that it must fail. The appellants are saw-millers and the respondents are a firm of advocates practising in Nairobi. They do not, and are not in law entitled to, practice in Tanganyika. On 16th June, 1948, the appellants were travelling in a motor-car in Tanganyika and were injured in a collision caused by the negligence of the other vehicle's driver, a man named Shariff. They instructed the respondents to sue Shariff for damages for personal injuries and it was understood that the proceedings were to be filed in Arusha in Tanganyika. Shariff was insured and the judgment would have been satisfied by his insurers if judgment had been obtained. For reasons which will appear the respondents neglected their plain duty to ensure that the proceedings were filed before the period of limitation ran out. A defence of limitation was raised and was unanswerable, so the suit was marked as "settled" on terms that the claim was dropped and a nominal sum was paid for costs. The appellants sued the respondents in negligence. The Supreme Court gave judgment in favour of the first plaintiff, now the first appellant, for Sh. 1,060 special damages and Sh. 8,000 general damages, and in favour of the second plaintiff, now the second appellant, for Sh. 740 special damages and Sh. 5,000 general damages, and awarded the plaintiffs the costs of the suit.

The real grounds of the cross-appeal were that, if anyone was negligent it was not the respondents, but a Mr. Mustapha, who is an advocate practising in Tanganyika and has offices at Arusha and Moshi. The first appellant, who acted as the second appellant's agent in all dealings with the respondents, had been concerned in other litigation in Arusha, and probably knew Mr. Mustapha by sight as a local advocate, though Mr. Mustapha did not remember having met him. Mr. Mustapha had acted as the respondent's Arusha agents in this earlier litigation and the first appellant either knew, or might have known, of this, since Mr. Mustapha was mentioned in bills which the respondents had submitted to him. The respondents employed Mr. Mustapha to act for the appellants in this matter also in Arusha, and his name was to appear as solicitor on the record for them. The respondents contend that the first appellant knew all about this. He said he did not. The evidence shows that on one occasion in March, 1949, Mr. Chanan Singh, the senior partner of the respondents, and the first appellant met Mr. Mustapha by chance "on the steps of the court-house" at Arusha and Mr. Chanan Singh (when using this name I mean the respondent, not the first appellant) spoke to Mr. Mustapha in English. The first appellant was not introduced to Mr. Mustapha. and did not take part in the discussion, but stood some feet away. It is uncertain whether he could hear was was said, and equally uncertain whether, if he could have heard, he would have understood, for his knowledge of English is not shown to have been more than slight. When cross-examined he said he did not know that Mr. Mustapha had been engaged for this case, and that he had never gone to Mr. Mustapha's office to engage him. He said he had never had a "meeting or conversation" with Mustapha. We were asked to say that this evidence was clearly untrue. I think it was not shown to be untrue. The crossexamination did not at all directly suggest a casual encounter on the steps of the court-house or that the first appellant heard what was said then. Neither the word "meeting" nor the word "conversation" would necessarily bring any such occurrence to his mind. The learned trial Judge found that the first appellant was not aware that Mr. Mustapha had been employed and I think that finding is not shown to be erroneous.

Even if the appellants had been fully aware of the part Mr. Mustapha was to play, I think it would make no difference to the case. If it were shown that Mr. Mustapha had been employed to take general charge and conduct of the case, and that the respondents' duties were confined to collection of evidence and transmission of the appellants' instructions to Mr. Mustapha, the position might well be different. It is, however, perfectly obvious that the arrangement between the respondents and Mr. Mustapha was that he would appear on the trial and would lend his name as "solicitor on the record". He was not to do anything else whatever, except on instructions from the respondents. Even at the trial it was possible that a member of the respondent firm would be present to instruct him, or might even obtain a special licence to appear with him as counsel.

I cannot refrain from saying that, although such an arrangement may not 'be actually unprofessional, it is extremely undesirable and very bad practice. The respondents were assuming the duty of advising generally on foreign law and of directing the conduct of litigation in a foreign country in such a way as to remove from Mr. Mustapha's shoulders the general professional responsibility for the early stages of the litigation. As an officer of the Tanganyika Court and as a solicitor on the record he of course remained responsible to the court. He is not before us and I wish to say as little as possible about his share in the matter: but it seems clear that he was content to be used at all stages before the trial as a mere conduit-pipe by means of which persons unadmitted in Tanganyika could perform services which should only be performed by the Tanganyika bar. The respondents seek in this case to shelter behind section 194 of the Indian Contract Act, and if they had acted in the usual and proper manner in connexion with foreign litigation they could undoubtedly have done so, though in that case the fatal mistake would almost certainly never have occurred. They cannot now rely on section 194, because of the words "for such part of the business of the agency as is entrusted to him". The respondent should have entrusted to a Tanganyika advocate the duty to act generally in the case, and so incidentally the duty to ensure, so far as he could, that the suit was filed within the limitation period. They clearly did not entrust that duty to Mr. Mustapha, but accepted the performance of it themselves.

The only reason why the suit was filed too late was that Mr. Chanan Singh quite wrongly assumed that a suit for damages for personal injuries was subject to a two-year limitation period in Tanganyika, as in Kenya. As a Kenya practitioner it is not ordinarily part of his duty to know the law of Tanganyika. It is, however, his duty to know that in most civilized countries there is a law of limitation and that it is different in different countries. When instructed in comnexion with intended proceedings in Tanganyika, it was his duty either to make a suitable Tanganyika advocate responsible on this point, as well as all others of Tanganyika law, by handing the general conduct of the action to him, or alternatively to ascertain himself the relevant Tanganyika law. That it is negligence to overlook a question of limitation under local law is shown by *Fletcher and Son* $v$ . Jubb, Booth and Helliwell (1920) 1 K. B. 275. Here the duty was slightly different. but equally clear, and its breach was clearly actionable negligence.

There was, however, a further point on which the respondents sought to escape liability. The accident occurred, as I have said, on 16th June, 1948, and the last day for filing the suit was 15th June, 1949, under Article 22 of the Indian Limitation Act, 1908, which applies to Tanganyika by virtue of section 2 of the Indian Acts (Application) Ordinance (Cap. 2). On 11th June the respondents wrote to Mr. Mustapha's firm at Arusha enclosing an engrossed plaint in triplicate and<br>asking them to file it in court "if the same is in order". This letter was opened<br>in Mr. Mustapha's office on 13th June, which was a Monday, office stamp of that date, but there is no evidence that he himself saw the letter

before time had run out and I accept his evidence that he did not. There was nothing in the letter to suggest urgency to the mind of a clerk, or indeed to Mr. Mustapha himself. On 22nd June he wrote back suggesting one or two minor amendments and pointing out that the plaint was not regularly signed by the plaintiffs. This seems to have been directly within his instructions as conveyed by the words "if the same is in order". But it is now contended that if Mr. Mustapha had seen the letter and read the plaint on the 13th, 14th or 15th, and if he had regarded it as his duty to check on the point of limitation and had done so, he could have applied to the court for leave to file in irregular form, and if the court had given leave, he could have filed within the limitation period. It was contended that he was under a duty to all these things, that his failure to do them was negligence, and that that negligence was the effective cause of the appellant's loss. This seems to me merely fantastic. I know of no duty of an advocate to deal with all his incoming mail within so short a period as three days in the absence of any warning of urgency. If Mr. Mustapha had done so and appreciated the situation correctly, it is quite uncertain whether he would have obtained leave to file the irregular plaint. But the real answer is that Mr. Mustapha would never have considered the question of limitation, because that was part of the general responsibility for the conduct of the action which the respondents had deliberately kept in their own hands. He assumed, as one would expect him to do in the absence of a warning from them, that everything had been done in good time and that there was no reason why he should not return the documents for amendment, if required, as the respondents had by implication suggested.

The effective cause of the appellant's loss was that the respondents assumed responsibility for services which they ought not to have undertaken and which they were incapable of performing properly. Mr. Mustapha in this respect is blameless.

I turn now to the substantive appeal. Mr. Salter's task in attempting to persuade this Court to increase the award of damages is clearly a difficult one. He recognized that it is not enough to persuade us that the amount given is less than we should ourselves have given if sitting in first instance, but it must be shown either that the learned trial Judge has acted on some erroneous principle, or that the award is so low as to amount to an entirely erroneous estimate. See Traill v. Bowker (1947) 14 E. A. C. A. 20, and Saint v. Hogan, 20 E. A. C. A. 85. I should not myself be prepared to act in this case on the second of these bases if it stood alone, but I think the appellants succeed on the first. No question arises as to the special damages. As regards general damages the learned trial Judge says: -

"With regard to general damages, three doctors have given evidence and produced reports regarding the injuries suffered by each plaintiff and the pain still felt by each and the degree to which the health or earning capacity of each has been permanently impaired. The plaintiffs themselves have also testified on these points. The evidence of the doctors has conflicted to some extend regarding the present suffering and incapacity of the plaintiffs, and I think the truth probably lies somewhere between the extremes of Dr. Nevill's and the plaintiff's own evidence on the one hand and that of Doctors Thornton and Williamson on the other. Upon careful consideration I assess the general damage suffered by the first plaintiff at Sh. 8,000 and that suffered by the second plaintiff as Sh. 5,000."

It is necessary to consider fully the evidence relating to each appellant which led to these findings. The first appellant said: -

"Five of my ribs were broken. I was injured in the chest and in the back. I got out of my car and then became unconscious for about four hours. I was taken to hospital. I have been under medical treatment since then till last month.

I saw Mr. Nevill five or six times, and he gave me treatment and prescribed for me. I followed the treatment. It helped me, but I was not completely cured of the pain. The pain was in my chest, ribs and back. I felt the pain most in cold weather and if I worked very hard. My work is saw-mill work. Mostly I go about on safaris between Nairobi and Tanga, travelling in a new car. I can only drive myself for<br>thirty or forty miles. Then, when the road is rough, I can't drive any more as my arm shakes and it causes me pain. So I have to have a driver. I travel for 20 days in a month. To-day, I have continuous pain in my chest, ribs and back. I have it at this moment. It is worse in cold weather.'

Mr. Nevill, who is a Master of Surgery and a Fellow of the Royal College of Surgeons, said:-

"I examined the plaintiff Channan Singh on 16th July, 1948, and found he had fractures of his 2nd, 3rd, 4th, 5th and 6th right ribs and a resolving hæmothorax, i.e. blood in his chest which was absorbing. I made several written reports, the first being in September, 1948. On 18th October, 1952, I have written a final report on the injuries.

I produce this report made on 18th October, 1952." The report is as follows: $-$

"I first saw this man on 16th July, 1948, when he gave a history of having had a car accident one month previously at Moshi.

He had an extremely severe crush injury of his chest which had resulted in fractures of the right ribs, Nos. 2, 3, 4, 5 and 6, together with a hæmothorax. These injuries had been treated at Moshi and, by the time he arrived in Nairobi, he was a great deal more comfortable, although still a very ill man.

His progress under treatment was satisfactory, and in due course the ribs have united in reasonably good position, and the damage to his lung and the pleura has resolved fairly satisfactorily. He remains, however, very<br>uncomfortable from time to time, especially after any great strain, and he is in considerable pain during the cold weather, although more comfortable during warm weather.

These pains are fairly constant in the muscles about the right scapula and into the right axilla, that part of his bony thorax which was damaged at the original injury.

An X-ray on 29th September, 1952, shows that the fractures are united in a good position, and that there are no residual defects in the lung.

In summing up, therefore, this man has had an extremely serious chest injury; he has been in great pain for the last four years, very considerably at the beginning of that time, less so latterly. It is evident that he is going to go on having pain and disability owing to the injury. If he attempts to use the muscles on the right side of his chest at all seriously, the pain gets worse. This is a considerable disability to a man in his position and trade. I would estimate his present disability as about 15 per cent, with a likelihood of a permanent disability in the future."

Mr. Nevill added: -

"The 'permanent disability' that I anticipate in last paragraph of it is to his chest and right arm. He has full range of movement in his right arm but not full strength. And if he uses it a lot he soon gets pain in his chest. I don't think any treatment could remedy this. He has had treatment.

Cross-examined.—The pain in the chest would not be aggravated by drink. Excessive drinking could not reduce chance of recovery. There is no chance of further recovery. Drink would not at any time after the injury have affected chance of recovery. I had his X-ray before me when I examined him on 16th July, 1948. The hæmothorax was a direct result of the accident. By middle of September, 1948, his ribs had healed perfectly. The continued pain—the chest was due to slight loss of muscular strength. He did not complain to me of pain when flexing his spine to the left. There was some pain towards the limit of flexing the spine to the right. His flexibility is relatively normal. I can't agree that it is not normal to flex to extreme limit. I do not agree that there has been no loss of expectation of life. I last examined him on 29th September, 1952. There was then pain in the region of his fractures, and round about his right scapula. I can generally tell when a man is pretending to feel pain. This man in my view was not pretending. Some patients exaggerate their suffering and not uncommonly when they are intending to claim damages. The rest of his organic system is normal. Thereis nothing further that I can do for him. I think it very unlikely that anyone else can do anything more for him, though I suppose this is possible. If he was entirely a desk worker, his disability would be only about $7\frac{1}{2}$ per cent. In the penultimate paragraph of (2) I say "less so latterly". His pain diminished gradually. In the Spring of 1949 he could have driven his car.

$Re$ -examined.—If he drove a lot, it would tend to aggravate his pain. Working in a saw-mill, even occasionally, would considerably aggravate it. His present pain is partly muscular, partly neurological and partly in the lung itself. I have examined him more than six times. I think he had tried to help himself get better, and has co-operated with the treatment."

The first appellant was also examined by the respondents' experts, Dr. Thornton and Mr. Williamson. They made a joint report on 8th November, 1952, a few days before the trial, which is as follows: —

"We, the undersigned, examined the $a/n$ plaintiff on Thursday, 6th: November. We have also seen the various X-ray photographs and the medical. report of Mr. G. Nevill, F. R. C. S.

We find as follows: —

- (1) The injury occurred on 16th June, 1948. He had a head-on collission: with another car in which the steering wheel of the car he was driving hit him in the chest. - (2) The injuries sustained at the time of the accident were according to the X-ray photographs: $-$

(a) Fractures of ribs Nos. 2 to 6 inclusive on the right side. (b) Fracture of the spinous process of the 7th dorsal vertebra. $(b)$

$N. B.$ —The spine itself was not fractured.

It is noted that in Mr. Nevill's report it is stated that Mr. Singh had a hæmothorax (blood in the chest cavity). The X-rays taken three weeks after the accident revealed no trace of this, and we can thus offer no opinion on whether or not there was an effusion of blood into the chest.

It is quite likely, however, that after a crush injury of this magnitude there was a hæmothorax-which had been absorbed before the X-rays were taken.

He complains of pain in his back and right chest even when he is not moving.

There is also some tenderness to pressure over the 7th dorsal vertebra and the 2nd-6th ribs in front.

Whilst agreeing that the vertebra is probably somewhat tender, we do not think that the remainder of his statements are strictly accurate. The ribs have healed perfectly in good alignment. When he flexed his spine to the left there was no pain until an extreme angle was reached, there was none on flexing to the right.

He appeared to move in general with ease.

Undoubtedly there was severe pain after the accident—probably lasting for some three months, but once healing took place it is difficult to understand why this pain should persist for nearly $3\frac{1}{2}$ years, and frankly we do not believe it.

There is no loss of expectation of life, nor is there at present, in our opinion, any physical disability.

There is a possibility of some arthritis developing in after-years in the 7th dorsal vertebra but this is not apparent at the moment.

The rest of his organic nervous system is normal.

No pathological changes were noted."

Dr. Thornton, in giving evidence in chief, at first adhered to his report, but when questioned as to permanent disability said: $-$

"Channan Singh does suffer from some permanent disability now. I would say it was a 10 to 15 per cent disability. This figure is, as these figures always are, in relation to the manual labour market. His disability as a desk worker would be less."

In cross-examination he said: $-$

"Channan Singh had clearly had a severe crush injury to the chest; such an injury more often than not has some permanent result. It is mainly this crush injury and its effect on the spine, that causes the 10 to 15 per cent disability. As I say in my report, arthritic complications in the future are a possibility."

These important admissions by one of the respondents' experts appear to have been entirely overlooked by the learned trial Judge. Mr. Williamson, in giving evidence, adhered to the view expressed in the joint report that there was no permanent disability, and was sceptical about pain suffered at the time of the trial, though he agreed that this was difficult to judge. The judgment suggests strongly that the learned trial Judge did not appreciate that on the most important point in issue, namely permanent disability, Dr. Thornton and Mr. Williamson took entirely different views. He seems to have relied on the joint report as

representing the final opinion of both of them on this subject. So far from that being the case, Dr. Thornton agreed almost exactly with Mr. Nevill's conclusion. I think that if the learned trial Judge had appreciated this and given full weight to the admission by the respondents' own adviser, he must almost inevitably have accepted Mr. Nevill's estimate. Counsel for the respondents sought to persuade us that Dr. Thornton's admission was a mere slip or verbal error. I see no indication of that. His opinion may well have changed as a result of hearing. or reading a note of, Mr. Nevill's evidence. I cannot assume that the court deliberately treated this as a slip. If the matter had been in the learned trial Judge's mind, he must, I think, have referred to it. I think there was a misdirection in this respect. I think also that the learned trial Judge might well have noted that Mr. Nevill's opportunities to judge this case correctly were far better than those of Mr. Williamson, in that he had treated it from the outset, while Mr. Williamson had merely made a single examination four years later.

I turn to the second appellant's case. He lives at Eldoret and it appears that his doctor there was expected to give evidence at the trial but was unable to do so. In consequence he was examined by Mr. Nevill the day before the trial, and this was the only medical evidence called for him. He himself said:-

"As a result of the accident my left knee and forehead were injured. I was taken to hospital in Arusha and stayed there four or five days. I was treated there, with injections, and my wounds were stitched. Then Dr. Ribeiro treated me for four or five days in Nairobi. Then I returned to Eldoret, where Dr. Anant Ram looked after me and treated me for between two and two and a half months. To-day, I still can't walk properly through the injury to my left knee. I feel some friction inside it. And I cannot stand for a long time. I had no trouble with my knee before the accident. The wounds have been cured, but the pain inside remains, and I still feel the friction. As a result of the wound in my forehead I feel I have lost my memory; and in cold weather I feel pain in the head, a little pain.

I am illiterate, so I can't do office work. I attend my saw-mill and transact business in connexion with it. Occasionally I have to do sawing work personally, when no employee is there.

I did not have an African or any driver for my own car before the accident. Now I have. Before the accident I had three drivers for my lorries.

My loss of memory since the accident is in respect of old matters, and also recent things. I am about 56 or 58 years of age."

Mr. Nevill said: -

"Yesterday I examined plaintiff Gajjan Singh for the first time. He complained of much pain in the left knee, difficulty in walking and loss of power in left knee, and pain in forehead in wet or cold weather. I found him to have a healed irregularly curved scar across the forehead. I don't think there was any fracture of skull. His left knee shows a 4-in. firmly healed scar across lower border of kneecap, with little tenderness in the joint. No increase in fluid in the joint, but much crackling when it is moved. Movements in left knee are full in extension, but flexion is limited by 10 per cent. There is wasting of left thigh muscles. He has an osteo-arthritis of left knee joint. No evidence of osteo-arthritis in right knee joint or hips. He walks with a confirmed limp and has in fact considerable loss of power in left leg. I have not enough information to assess loss of ability. His prognosis is that he is much more likely to deteriorate than to improve. Condition of left knee is probably caused by an injury. What he complained of was consistent wth what I found."

Mr. Nevill was not cross-examined on this. Counsel asked permission to reserve his cross-examination but never again raised the question. Dr. Thornton examined the second appellant the day before he gave evidence. He put in the following report:-

"I have to-day examined Mr. Gajjan Singh who was injured on 16th June, 1948. He received an incised wound on the forehead 4 in. long and another 3 in. long on the inferior border of the left patella; both wounds. were stitched and have healed perfectly.

I do not think that the wound on the forehead has left any serious effects although he says that his memory is not what it was.

As he is no longer a young man (he is 58 years old) this is not to be wondered at.

The wound over his left knee must have been fairly deep, and it probably partially incised. The insertion of the patella ligament into the tibial bone.

Movement is rather limited at the knee joint and causes pain when flexion of the joint to angle less than $90^{\circ}$ is attempted. The joint also appears rather stiff—but this may have been due to conscious resistance to movement on the part of Mr. Singh.

This latter also applies to some apparent loss of power in the leg, which is not accounted for by any muscle wasting.

There would have been some pain of course at the time of the injury: there is no loss of expectation of life, and very little present physical disability. say under 5 per cent." $\frac{1}{2}$

He agreed in evidence that pain might occur in the knee in cold weather and a feeling of friction when walking. In cross-examination he said:

"Turning to plaintiff Gajjan Singh, I found no muscle wastage in the left thigh, but I admit I did not actually measure it. It certainly has some disability. There generally is wasting of a muscle which can't be used so much-until it can be used again. I would expect Gajjan Singh to have difficulty in walking up stairs. I found he had crackling in both knees. as usually happens in advancing age. There was a little more crackling in his left knee. There may well be osteo-arthritis there; it is very common at that age, though more to be expected after such an injury. I would assess Gajjan Singh's disability on labour market at 5 per cent or less. He must have suffered considerable pain, though not as much as first plaintiff."

In assessing the comparative value of Mr. Nevill's and Dr. Thornton's evidence, I should have expected the learned trial Judge to comment on Dr. Thornton's failure to measure for wastage, on the apparent coincidence that osteo-arthritis should be found only where the knee injury occurred, and on the fact that Mr. Nevill was not cross-examined. But the most important point is that the learned trial Judge was clearly under the misapprehension that Mr. Williamson had given evidence about this appellant as well as Dr. Thornton. In fact Mr. Williamson-never mentioned him or reported on him, and so far as is known may never have seen him. This was clearly a misdirection. The court might have relied on Dr. Thornton unsupported by Mr. Williamson, but it is not possible for us to say that it must have done so.

In the circumstances this Court must form its own opinion as to the evidence. of injury and in all the circumstances, without disparagement of Dr. Thornton or Mr. Williamson, I prefer the evidence of Mr. Nevill supplemented by that of the plaintiffs. Mr. Nazareth referred us to the case of *Davies v. Powell Duffryn* (1942) 1 A. E. R. 657, and I cite the following from the opinion of Lord Macmillan at p. $664$ :-

"No doubt an appellate court is always reluctant to interfere with a finding of the trial Judge on any question of fact, but it is particularly reluctant to interfere with a finding on damages. Such a finding differs from an ordinary finding of fact in that it is generally much more a matter of speculation and estimate. No doubt this statement is truer in respect of some cases than of others. The damages in some cases may be objective and depend on definite facts and established rules of law, as, for instance, in general damages for breach of contract for the sale of goods. In these cases the finding as to amount of damages differs little from any other finding of fact, and can equally be reviewed if there is error in law or in fact. At the other end of the scale would come damages for pain and suffering or wrongs such as slander. These latter cases are almost entirely matter of impression and of common sense, and are only subject to review in very special cases. There is an obvious difference between cases tried with a jury and cases tried by a Judge alone. Where the verdict is that of a jury, it will only be set aside if the appellate court is satisfied that the verdict on damages is such that it is out of all proportion to the circumstances of the case (Mechanical and General Inventions Co. v. Austin). Where, however, the award is that of the Judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial Judge on a question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer, L. J., in *Flint v. Lovell*, at p. 360. In effect, the court, before it interferes with an award of damages should be satisfied that the Judge has acted upon a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency."

I am satisfied that on a correct view of the nature of the appellants' injuries the awards of general damages were inadequate. Instead of the sums of £400 and $£250$ I would award £800 to the first appellant and £400 to the second appellant.

I would allow the substantive appeal with costs and order that the judgment of the Supreme Court be varied by substituting the larger sums for general damages which I have mentioned.

NIHILL (President).—I so fully concur with everything my learned brother has said in the judgment he has just delivered that there is nothing I can usefully add. On the question of damages the Court is agreed that the trial Judge did misdirect himself on the medical evidence and that for this reason we are justified in re-assessing them at the figures suggested by my brother. As we have already ordered the cross-appeal is dismissed with costs. We now allow the substantive appeal with costs and an order will be made in the terms proposed by the learned Justice of Appeal.

JENKINS, $J. A.-I$ agree.