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JUDGMENT:
On 1st
August 2011, plaintiff filed an
amended writ of summons and
statement of claim, pursuant to
leave granted by this court.
The facts showed that plaintiff
who is a trader aged 61, got
injured when the vehicle in
which she was travelling from
Sekondi to Tema, crashed into
the rear of another vehicle.
That vehicle has GN 3557Y, as
its registration number, and AS
9105D, is the other vehicle.
The pleadings showed that the
offending vehicle has been
insured by the
defendant/company.
Furthermore, the
averments are that, plaintiff
suffered injury, which have been
particularized as follows:
PARTICULARS OF INJURIES
(a)
Fracture acetabulum with central
dislocation of hip.
(b)
Fracture left distal third tibia
(c)
Laceration of the lower left hip
and back of the left leg.
PARTICULARS OF DEFORMITY –
disability and Incapacitation.
(a)
Stiff left hip joint with
restricted movement.
(b)
Left leg about 4cm short as a
result of central dislocation
of the hip joint.
(c)
Review of X-rays showed
persistent central dislocation
of left hip with post
traumatic osteoarthritis
changes.
(d)
Extensive scars at the back of
left leg and lower left hip.
(e)
She could only walk with the
help of clutches.
In addition, plaintiff averred
that, she lost fish worth
GH¢3,390.40, in the incident.
And has lost GH¢200.00 as
monthly average income from her
business to date.
She also claimed GH¢874.20, as
medical expenses, and
particularized them with the
dates and amounts that totaled
GH¢874.20 as aforementioned.
The under listed are
the reliefs endorsed on the
writ:
(a)
GH¢30,000.00 as damages for the
injuries, pain and suffering.
(b)
GH¢35,000.00 as damages for
permanent disability and
incapacitation.
(c)
GH¢35,000.00 as damages for loss
of amenity.
(d)
GH¢3,900.40 being the value of
fish which plaintiff was
conveying and was destroyed.
(e)
GH¢24,000.00 being loss of
business profit, at the rate of
GH¢200.00 per month on the
average for ten (10) months.
(f)
GH¢874.20 being medical expenses
incurred by the plaintiff.
(g)
Interest at the prevailing bank
rate of 24% per annum from date
of the incident to the date of
final payment, on those sums
liable to attract interest.
The defendant filed a Notice of
Appearance on 22nd
March 2011, but failed to file a
defence, as a result an
interlocutory judgment was
entered in favour of plaintiff,
and a date fixed for assessment
of damages.
Hearing Notice was duly served
on the defence, but they chose
to ignore it. Evidence was
heard from plaintiff only, who
testified at the hearing, she
also tendered several
documents. On 16th
of June 2011, defendant/company,
was duly served with a Hearing
Notice, through one TRACY, in
Accra, about the hearing which
was to commence on 24th
June 2011.
Thus on 24th
June 2011, the hearing
commenced. It could be gleaned
from the record that, plaintiff
who lived in Sekondi/Takoradi,
was travelling to Tema to
purchase fish for sale, when the
vehicle in which she was
travelling crashed into another
one ahead of it, near Elimina.
The testimony on
injuries suffered showed that,
she fractured the leg, and the
hip and as a result she cannot
walk. She alleged she has since
been in pain and discomfort, as
she is unable to perform the
least of household chores nor
attend church as she formerly
did.
She tendered in support,
EXHIBITS “A” to “K”. And
EXHIBIT “K” with GH¢3,904.00,
being receipt on fish purchased
and being transported by
plaintiff on the day of the
crash.
The other exhibits, for instance
“B” and “B1” are in respect of
Hospital-bills. And EXHIBIT “C”,
“D”, “E”, “G”, “H” and “J” for
purchase of drugs and cost of
treatment received following the
injuries. EXHIBIT “A” is the
medical report on plaintiff, but
plaintiff did not tender a
police accident report.
There was no
cross-examination as the defence
cynically ignored every court
process served on it.
If defendant/company is the
insurer of the vehicle in which
plaintiff was travelling then,
its liability is established
following the notice of
appearance it filed and yet
failing to defend the action.
Judgment has been entered in
that regard already.
Furthermore, plaintiff has
asserted, she was travelling on
vehicle No. GN3557Y, when the
driver drove and crashed into
the rear of the other vehicle.
Ordinarily a vehicle which is
well maintained and driven
properly by a driver with the
requisite skill, should not
crash into another vehicle.
Following the facts as asserted,
a prudent and efficient driver
is reasonably expected to either
brake, swerve or stop if the
vehicle ahead had stopped
suddenly thereby constituting an
obstruction.
This hearing has been
about assessment of damages. And
plaintiff is required to provide
evidence in support of the claim
and to give facts upon which the
damages could be assessed.
Plaintiff even in the absence of
the defence must adduce evidence
which will merit the award of
damages, and facts which will
form the basis of the assessment
of damages.
The evidence
outlined above, is about harm or
injury which has made plaintiff,
an able bodied trader who was
travelling to Tema to remain in
a wheel –chair since the crash.
She is therefore claiming
damages, in the form of money as
compensation for the injury
suffered as a result of the
negligent conduct of the driver
of the offending vehicle,
insured by the defendant.
Elizabeth A. Martin’s edition of
the Oxford Dictionary of Law, 5th
Edition, published by Oxford
University Press, defines,
“damages as, a sum of money
awarded by a court as
compensation for a tort or
breach of contract”
In McGregor on Damages: the word
Damages is defined as, “the
pecuniary compensation
obtainable by success in an
action, for a wrong which is
either a tort or a breach of
contract, the compensation being
in the form of a lump sum which
is awarded unconditionally”.
The assessment of
damages is how to measure the
quantum of compensation to
award. And the general
principle underlying the award
of Damages either in tort or in
contract is that plaintiff or
claimant is entitled to full
compensation for his losses,
based on the principle of
“restitution in integrum”.
Besides the
principles that are applicable,
this court will look at a few
decided cases, on how the
principles have been applied.
In the case:
OPOKU
DARKWA
VRS.
AYEA [1974] 1 GLR
272 – 276
the High Court, Cape Coast
presided over by Edward Wiredu
J. (of blesses memory)
considered, damages and quantum
of an award to a victim, who
sustained personal injuries,
which rendered him impotent and
permanently incapable of looking
after himself. The claim for
damages was under the headings
such as claims for damages for
personal injury consequential
loss and expenses and how it
must be measured and the mode of
assessment of damages were the
focus of the judgment.
The facts were that
plaintiff was injured when a
vehicle in which he was
travelling as a fee, or fare
paying passenger, left the road
and landed in a ditch.
As a result of a fractured
vertebra he was paralysed from
the waist down leaving him with
incontinence of urine and stool
and sexual impotence.
His personal physical incapacity
was assessed at 90% (percent).
The court held, after
having entered interlocutory
judgment in favour of plaintiff
as follows:
“Damages assessed under the
following heads:
(i) pecuniary losses and
expenses to date of
action
(ii) prospective loss of
wages
(iii) nursing attention
during the projected
shortened period of life and
(iv) past and future
physical mental pain and
suffering and shortening of
life, amounted to
¢870.00, ¢5,760,
¢14,400.00 and ¢27,000.00
respectively, and the
court took into account
diminished purchasing
power of the
cedi:
ROACH VRS. YATES [1938] 1 KB 256
C.A
followed.
In the case cited above
negligence has been established
as in this case too. But of
interest, is evidence led on the
nature of injuries plaintiff
suffered. He suffered
compression fracture with
dislocation of the first lumbar
vertebra. Total paralysis of
the lower limbs with
incontinence of urine and faeces
and facial lacerations and
abrasions. Plaintiff became a
total wreck as a result of the
injuries and had been on
admission for several months.
Medical Report which
put permanent
disability/incapacity at 90%
(percent) in this case, is also
to the effect that, the
plaintiff suffered the following
deformities:
(i) unable to walk or
stand
(ii) incontinence of
urine
(iii) incontinence of
stool
(iv) lower limbs have
withered
(v) no
sensitivity in either leg up to
the lower
abdomen
(waist region)
A total of ¢48,030.00 was
awarded as compensation in
favour of plaintiff in that
case.
In another case:
DAMALIE VRS. KWADZI & ANO.
(1974) 1 GLR 161 – 165,
which is a High Court decision,
Abban J. (as he then was)
decided damages to be awarded to
plaintiff who suffered personal
injuries to the neck and chest
and fractured right humerus, and
permanent disability was
assessed at 26% (percent).
In assessment of
damages, particular importance
was attached to the medical
report and testimony of the
medical officer on it. The
severe and debilitating they are
the higher the award will
normally be. The nature of
treatment and period of
hospitalization and further
treatment required are other
factors the court considered.
Hospital bills, nutrition
special diet, transportation
cost, are all headings of
expenditure claimed and
considered by the court. And
very importantly the age of
plaintiff who was 34 years at
the time was considered too.
From the age, the period of life
expectancy is deduced, and
whether the claimant’s income
earning capacity has been
affected, also is a factor that
eventually determines the
quantum of award under the
appropriate heading.
In this suit, this
court has made the following
findings based on the credible
and uncontroverted evidence
before it.
Firstly, I find and hold that
plaintiff suffered injury as a
result of the negligent conduct
of the driver whose vehicle has
been insured by the defendant.
Secondly, I hold that plaintiff
suffered 45% (percent)
disability with no chance of
recovery.
Thirdly, that she lost fish
which was on board the vehicle.
Fourthly, she has lost amenities
of life, she cannot even attend
church, and she has remained in
a wheel chair since, and has
become totally depended on
others.
The evidence showed
that plaintiff is a fairly old
woman, whose age as shown on the
medical report is sixty one (61)
years as at 2009, when the
incident occurred. I take
judicial notice of the fact that
life expectancy in Ghana is 64
years.
Thus life expectancy for
calculation of whatever award
she is entitled to shall be
three (3) years. The testimony
that she earned GH¢200.00, on
the average every month is not
controverted therefore, it is
accepted.
The product of twelve months,
multiplied by two hundred is two
thousand four hundred. This
must be multiplied by (3) three
(years).
In further details this is the
calculation:
(a)
GH¢200.00 X 12 =
GH¢2,400.00
(b)
Multiplied by (i.e. X 3) =
GH¢7,200.00
The possibility of higher
earnings in future is difficult
to determine.
Furthermore,
plaintiff suffered forty-five
percent (45%), incapacitation.
And her chances of recovery from
this disability is virtually
impossible. And plaintiff
continues to be dependent on
people, she cannot walk, stand
nor perform any chores, and of
great significance is that
plaintiff continues to endure
pain and she is receiving
further treatment.
She has claimed
GH¢30,000.00 as damages. This
is not contested, it is
reasonable, given the fact that
plaintiff has suffered 45%
(percent) disability, in the
face of raising cost of
maintenance and treatment, and
further dependence.
In addition the
purchase price of fish, which
was lost is recoverable, the
price which was put at
GH¢3,390.40 is accepted. It has
been proved specifically.
Medical expenses
which has been corroborated with
receipts, is in the sum of
GH¢874.20, this is also
recoverable and I award same as
damages to plaintiff.
Finally, this
court also awards as general
damages to plaintiff the sum of
GH¢35,000.00, as compensation
for permanent loss of amenities
of life, having in mind rising
cost of maintenance, further
treatment and cost of attendants
who will have to care for
plaintiff.
These figures are as follows:
1.
GH¢ 7,200.00
2.
GH¢30,000.00
3.
GH¢ 3,390.00
4.
GH¢ 874.00
5.
GH¢35,000.00
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GH¢76,464.00
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I also award cost of Gh¢2,000.00
in favour of the plaintiff.
(SGD.) N. M. C.
ABODAKPI
JUSTICE OF THE HIGH COURT
B. W. TAMAKLOE FOR PLAINTIFF –
PRESENT
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