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Negligence -
Accident. - Personal injuries -
Vicarious liability - Injuries
suffered - Assessment of
incapacity - Special and
General damages – Pecuniary and
non-pecuniary loss - Insurance -
Road worthy certificate –
Unlicensed driver effect of –
Whether
or not defendant was
negligently liable because his
truck, at the time of the
accident had no valid document -
Whether or not the driver in
charge of the vehicle on the day
of the accident had no license -
Whether or not the quantum of
damages awarded by the Court of
Appeal was excessive - Whether
or not the awards are not
supported by the totality of the
evidence placed before the trial
court - Whether or not
Respondent had a contract with
the Appellant for him to be held
liable vicariously - Whether or
not the judgment was against the
weight of evidence -
Sections
94 and 112 - Road Traffic Act,
2004 (Act 683) - Section 3 -
The Motor Vehicles (Third Party
Insurance) Act, 1958 (NO 42) -
Order
16 Rule 7(1) - High Court Civil
Procedure Rules, 2004, C.I. 47
HEADNOTES
The events,
giving rise to this case,
started on 28th
April, 2009. The plaintiff, a
timber merchant of 39 years at
the time of the incident acting
through his friend and business
partner hired the defendant’s
truck to cart his timber logs
from Diaso near Dunkwa to Mim in
the then Brong Ahafo Region. On
reaching a place called Kwabena
Kumah, the vehicle was involved
in an accident. The plaintiff
and the driver of the vehicle
sustained serious injuries and
were sent to Goaso Government
Hospital. Because of the
seriousness of the injuries
suffered, the plaintiff was
later transferred to the Komfo
Anokye Teaching Hospital in
Kumasi for further treatment
where he received intensive care
for four months before being
discharged to continue his
treatment as an outpatient. The
plaintiff on 20th
June, 2012, after seeking
extension of time within which
to file a writ sued the
defendant, owner of the vehicle
for the sum of Gh¢400,000.00,
special and general damages for
the negligence of defendant’s
driver, servant and employee
resulting in the injuries
suffered in the accident.
According to the plaintiff, the
vehicle was not insured, did not
have a road worthiness
certificate and the driver was
also not licensed by law to
drive the vehicle at the
material time. The defendant did
not deny the fact that he owned
the vehicle and that the road
worthiness certificate and
insurance had both expired. The
defendant, however, denied the
fact that the driver in control
of the vehicle at the material
time was his driver or servant.
According to the defendant, one
Kudjar Sumiala rented the timber
truck for two days and gave him
his driver to assist him with
the carting of the logs.
However, the said Kudjar Sumiala
ended up using the truck for
four days without his knowledge,
consent or approval The
trial court found that the
accident was not caused by the
negligent driving of the servant
of the defendant because the
evidence of the police was that
the vehicle developed a fault
and fell down. The judge,
however, held that by permitting
a vehicle to ply the road
without valid documentation
i.e., road worthiness
certificate and insurance as
well as authorising an
unlicensed driver to drive the
truck, the defendant should be
held vicariously liable for the
plaintiff’s claim Dissatisfied
with the award of damages by the
trial court, the plaintiff
appealed to the Court of Appeal
who reversed the award on the
assessment of damages made by
the trial judge, The defendant
dissatisfied with the award by
the Court of Appeal and has
appealed to this court
HELD
We, therefore, exercise our
powers by invoking Order 16, r.
7 of C.I. 47 and amend the claim
in the indorsement to the Writ
of Summons filed on 20th
June, 2012 from GH¢
400,000.00 to GH¢
622,600.00. Since ground
7 on costs was not argued, the
conclusion is that it has been
abandoned. In the result, the
appeal lacks merit and is
dismissed in its entirety.
We vary the award of
pecuniary and non-pecuniary
damages awarded by the Court of
Appeal from GH¢150,000.00 to GH¢
622,600.00. The plaintiff shall
recover the sum of GH¢
622,600.00 from the defendant.
STATUTES
REFERRED TO IN JUDGMENT
Road Traffic
Act, 2004 (Act 683)
Road Traffic
Regulations, 2012, L.I. 2180
The Motor
Vehicles (Third Party Insurance)
Act, 1958 (NO 42).
High Court Civil Procedure
Rules, 2004, C.I. 47
High Court Civil Procedure
Rules, LN 120 A.
CASES
REFERRED TO IN JUDGMENT
Bradford v
Pickels [1895] AC 587
Standard Chartered Bank (Ghana)
Ltd v Nelson [1998-99] SCGLR 810
Zik’s Press
Ltd v Ikoku (1951) 13 WACA 188
at 189
Frabina Ltd v Shell Ghana Ltd,
[2011] SCGLR 429
H. West & Son, Ltd. v Shephard
[1963] 2 All E.R 625
Delmas Agency
Ltd v Food Distributors
International Limited
[2007-2008] SCGLR 748
Phillips v. South Western
Railway Co. (1879) 4 Q.B.D. 406
Roach v. Yates [1938] 1 K.B. 256
Amakom Sawmill & Co. v Mansah
[1963] 1 GLR 368,
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
AMEGATCHER,
JSC:-
COUNSEL
CHARLES
AGBANU WITH NANA BOSOMPEMAA
ANTWI FOR THE PLAINTIFF/
APPELLANT/RESPONDENT.
IBRAHIM ADAMS
WITH CHARLES LESBAN FOR THE
DEFENDANT/ RESPONDENT/APPELLANT.
AMEGATCHER,
JSC:-
We have been
called upon as judges of the
apex court of the land to have a
second look on appeal at this
personal injury case. It started
from the High Court, Kumasi; was
reviewed and ruled upon on
appeal by the first intermediate
appellate court sitting at
Kumasi; and has again on appeal
been assigned to us for a final
and conclusive resolution. The
defendant in the High Court suit
who is now the appellant shall
hereafter be referred to in this
opinion as defendant. The
respondent, Kwadwo Appiah, who
was plaintiff in the High Court,
will hereafter maintain his
designation as the plaintiff.
The facts of
this appeal have the temptation
of arousing the sympathy of any
trier of fact. It is not
surprising that one of the
hard-hitting areas of attack by
counsel for the defendant
against the learned and
respected judges of the Court of
Appeal is that they were swayed
by sentiments in reaching a
decision in this matter.
However, those who ply their
trade as Barristers and
Advocates as well as those of us
who act as referees in the
competing claims presented to
the court know or are deemed to
know that a court of law does
not make decisions based on
emotions, sympathy or
sentiments. The time-tested rule
for sifting evidence and testing
the credibility of the
respective cases presented by
parties before the court and
making a decision one way or the
other is evidence. It is against
this background that this case
was fought in the High Court and
Court of Appeal; and it is by
the same yardstick that the
case, now on appeal before the
apex court will be considered.
The events,
giving rise to this case,
started on 28th
April, 2009. The plaintiff, a
timber merchant of 39 years at
the time of the incident acting
through his friend and business
partner called Sammy hired the
defendant’s truck numbered AS
5471-X to cart his timber logs
from Diaso near Dunkwa to Mim in
the then Brong Ahafo Region. On
reaching a place called Kwabena
Kumah, the vehicle was involved
in an accident. The plaintiff,
Sammy and the driver of the
vehicle sustained serious
injuries and were sent to Goaso
Government Hospital. Because of
the seriousness of the injuries
suffered, the plaintiff was
later transferred to the Komfo
Anokye Teaching Hospital in
Kumasi for further treatment
where he received intensive care
from 30th April, 2009
to 4th September,
2009 before being discharged to
continue his treatment as an
outpatient.
The plaintiff
on 20th June, 2012,
after seeking extension of time
within which to file a writ sued
the defendant, owner of the
vehicle for the sum of
Gh¢400,000.00,
special and
general damages
for the
negligence of defendant’s
driver, servant and employee
resulting in the
injuries
suffered in the
accident.
According to the plaintiff,
the vehicle was not
insured,
did not have a
road
worthiness certificate and
the driver was also not
licensed
by law to drive the vehicle
at the material time.
The defendant
did not deny the fact that he
owned the vehicle and that the
road worthiness certificate and
insurance had both expired. The
defendant, however, denied the
fact that the driver in control
of the vehicle at the material
time was his driver or servant.
According to the defendant, one
Kudjar Sumiala rented the timber
truck for two days and gave him
his driver to assist him with
the carting of the logs.
However, the said Kudjar Sumiala
ended up using the truck for
four days without his knowledge,
consent or approval.
During the four-day period,
defendant’s driver left the
truck in the care of the hirer
after the two days to attend to
an emergency call concerning his
mother’s illness at the Sunyani
hospital. According to the
respondent, it was Kudjar
Sumiala who failed to return the
vehicle to him and rather asked
a driver called Kwame Paul to
drive the vehicle and continue
with the cutting of the logs.
The defendant, therefore,
contended that the said Kwabena
Paul was on a frolic of his own
when the accident occurred and,
therefore, he cannot be
vicariously held liable for the
tort of Kwabena Paul. The
defendant also contended that he
had no contract with the
plaintiff and that the plaintiff
neither rented the truck nor was
he a paid passenger at the time
of the accident and at best
could be described as someone on
a frolic of his own.
After trial
at the commercial division of
the High Court, Kumasi, the
learned trial judge delivered
his judgment on 30th
October, 2015.
The trial
court found that the accident
was not caused by the negligent
driving of the servant of the
defendant because the evidence
of the police was that the
vehicle developed a fault and
fell down. The judge, however,
held that by permitting a
vehicle to ply the road without
valid documentation i.e., road
worthiness certificate and
insurance as well as authorising
an unlicensed driver to drive
the truck, the defendant should
be held vicariously liable for
the plaintiff’s claim. The
trial judge at the end of the
day awarded the plaintiff
general and special damages in
the sum of Gh¢20,000.00 because
there was no evidence before him
that the plaintiff incurred
expenses on medication; and also
the plaintiff failed to call the
medical doctor who examined him
and gave him the medical report
as a witness.
Dissatisfied
with the award of damages by the
trial court, the plaintiff
appealed to the Court of Appeal.
The defendant, however, did not
cross-appeal against the
findings of fact made by the
trial court. On 22nd
May, 2018, the Court of Appeal
reversed
the award on the assessment of
damages made by the trial judge.
The Court of Appeal awarded the
plaintiff non-pecuniary losses
in the sum of Gh¢140,000.00,
pecuniary loss to the tune of
Gh¢10,000.00 and costs of
Gh¢10,000.00.
The
defendant was dissatisfied with
the award by the Court of Appeal
and has appealed to this court
on a number of grounds. The
defendant is requesting us to
reverse the decision of the
Court of Appeal and restore the
award made by the trial court.
The grounds
of appeal canvassed in the
defendant’s notice of appeal
were:
1.
The judgment of the Court of
Appeal is against the weight of
evidence on record.
2.
The Honourable Court of Appeal
erred in upholding the learned
trial judge’s holding that the
Defendant/Respondent/Appellant
was negligently liable because
his truck, at the time of the
accident had no valid document
and/or the driver in charge of
the vehicle on the day of the
accident had no license.
3.
The quantum of damages awarded
by the Honourable Court of
Appeal was not only excessive
but also the awards are not
supported by the totality of the
evidence placed before the trial
court.
4.
The Honourable Court of Appeal
erred when it attributed the
Plaintiff/Appellant/Respondent’s
alleged 100 percent loss of
genital functions to the
accident dated 28th
day of April 2009.
5.
The Honourable Court of Appeal
erred when it held by
implication that the
Plaintiff/Appellant/Respondent
had a contract with the
Defendant/Respondent/Appellant
for him to be held liable
vicariously.
6.
The Honourable Court of Appeal
erred when it held by
implication that the accident
dated 28th day of
April 2009 was negligently
caused by the driver in charge
of the
Defendant/Respondent/Appellant’s
vehicle.
7.
The cost awarded against the
Defendant/Respondent/Appellant
was harsh and excessive.
8.
Additional Grounds of Appeal to
be filed upon the receipt of the
record of proceedings.
In his
submissions before this court,
counsel for the defendant first
argued grounds 1, 3 and 4
together and then grounds 2, 5
and 6. We intend to take all the
six grounds together since they
are all subsumed under the
omnibus ground 1, i.e.,
the
judgment was against the weight
of evidence.
In summary,
counsel for the defendant
submitted that the evidence on
record did not support the
conclusion reached by the Court
of Appeal because the
plaintiff’s case was so
sweeping, unsubstantiated,
doubtful and unreliable that it
cannot be said to be reasonably
probable. In particular counsel
submitted that the accident was
not negligently caused by the
driver who drove the truck as
held by the trial judge and that
the plaintiff did not lead
concrete evidence to support
matters he was challenged on
such as the expenses of
Gh¢60,500.00 allegedly being
medical expenses when the total
receipts tendered was below
Gh¢2,000.00; and no evidence was
led to show that the plaintiff
incurred more than what is
contained in the receipts he
tendered. According to the
defendant, the 100% loss of the
function of plaintiff’s genital
organ or penis was not a direct
causation from the accident
because the medical report
exhibit ‘A’ did not say so or
make that connection. Counsel
for the defendant also faulted
the plaintiff for failing to
call the neurosurgeon Dr Kofi
Vowotor who authored the medical
report exhibit ‘A’ to explain
how he came by his findings.
Finally, counsel attacked the
award of the lump sum of
Gh¢140,000.00 for non-pecuniary
loss as purely sentimental.
The Court of
Appeal rejected the findings of
the trial court that the
accident was not negligently
caused by the driver of the
defendant. This is what the
trial judge concluded in his
judgment:
“No where did
the Police indicate that the
Driver of the vehicle drove
negligently on that day. In
fact, they stated “the truck
developed a fault and fell
down”. This was what the Police
told the Court caused the
accident. In the circumstances I
hold that the accident was not
negligently caused by the one
who drove the car on that day.”
It appears to
us that the learned trial judge
got confused and contradicted
himself in the course of
reviewing the evidence placed
before him. After making that
finding, further down the
judgment, the trial judge came
to a firm conclusion that the
plaintiff had a contract with
the defendant for the hire of
the truck and that the driver
who drove the truck that fateful
day was the agent of the
defendant. The trial judge then
castigated the defendant for
permitting an unlicensed driver
to drive the truck which in
itself did not have an insurance
and a road use certificate. The
trial judge concluded that:
“In sum, I
hold that since the defendant
knew at the time he gave out the
truck that there were no valid
documents covering the same, and
also authorized an unlicensed
Driver to drive the truck, he
cannot turn round to say he is
not liable to Plaintiff’s claim,
since he should not have put the
car on the road in the first
place. I therefore find him
vicariously liable in the
circumstances.”
From the
passage above, the contradiction
in the trial judge’s judgment
was that if the accident was not
caused by the negligence of the
driver of the defendant, then no
tort would have been committed
for the defendant to be
vicariously held liable and be
mulcted in damages. It is this
obvious contradiction which
weighed on the Court of Appeal
in reversing the finding of fact
absolving the defendant’s driver
of negligence.
We have
reviewed the evidence and the
law on the tort of negligence.
Our opinion is that the
conclusion arrived at by the
Court of Appeal holding the
driver of the defendant liable
in negligence cannot be faulted.
We wish at this juncture to
restate that vehicle owners and
their servants or agents have a
duty to comply with the laws
governing the operation and use
of their vehicles on the road.
On the peculiar facts of this
case, the applicable law for use
of vehicles on the road is the
Road Traffic Act, 2004 (Act 683)
and its regulations, the
Road
Traffic Regulations, 2012, L.I.
2180. The laws forbid an
owner and a person who has
control or custody of a vehicle
from permitting an unlicensed
driver to drive a vehicle on the
road. The law also bans the use
of vehicles which do not have a
road use certificate from plying
a road. The relevant provisions
are
sections 94 and 112 of Act
683. Section 94 provides as
follows:
“(1) A person shall not
(a) drive or use; or
(b) permit any other person to
drive or use
any motor vehicle on a road
unless there is in force in
respect of the motor vehicle a
road use certificate provided
for under this Act.”
Section 112 provides:
“(1) A person shall not drive a
commercial vehicle unless that
person obtains in respect of
that vehicle the relevant
licence issued by the Licensing
Authority.
(2) A licence issued under this
section shall be valid for the
period specified in the licence
and may be renewed upon
application.”
In the case
of insurance, the applicable law
is The
Motor Vehicles (Third Party
Insurance) Act, 1958 (NO 42).
Section 3 provides that no
person shall use, or cause or
permit any other person to use,
a motor vehicle unless there is
in force in relation to the user
of that motor vehicle such a
policy of insurance or such
security in respect of third
party risks as complies with the
provisions of the Act.
Laws passed
by Parliament are there to be
obeyed by all citizens and
residents. Otherwise they become
useless, lose their significance
and defeat the mischief the
passage of the law sought to
cure. Our society is regrettably
plagued by indiscipline,
impunity and recklessness by
drivers on the roads. This
accounts for the reasons why
this jurisdiction is classified
as high risk in vehicular
accident. It appears the
defendant and his driver joined
the bandwagon and flouted the
mandatory laws regulating the
use of vehicles on the road in
the hope, possibly to escape the
monitoring eye of the
authorities. Unfortunately for
the defendant, luck escaped him
and he fell into the long arms
of the law. He was fortunate to
have escaped being banned from
holding a driver’s licence as
provided for in the law and
sentenced to pay only a small
fine after his prosecution.
Despite the criminal
prosecution, his liability under
civil law was unaffected.
The fact that
the vehicle which caused the
accident had no road use
certificate implies its tyres,
brakes, engine, lamps, mirrors,
wheels, axles, steering,
suspension, wings, fenders, mud
guards, wheel, mud flaps and
trailer among others have not
been tested and certified to be
worthy for use on the road. An
owner or the person in control
of such a vehicle who places it
on the road endangers the
motoring public and when an
accident occurs cannot escape
blame albeit caused by
mechanical failure. In the
absence of any explanation why
the defendant’s unlicensed
driver drove a vehicle which was
not road worthy, we will agree
with the Court of Appeal and
hold the defendant vicariously
liable for the tort of his
driver.
Counsel for
the defendant further attacked
the Court of Appeal for its
acceptance of the evidence
adduced at the trial that the
plaintiff lost 100% of the
function of his genital organ or
penis as a result of the
accident. The defendant argued
that the loss was not a direct
causation of the accident
because the medical report
exhibit ‘A’ did not say so or
make that connection. Further,
the neurosurgeon Dr Kofi Vowotor
who authored the report was not
called to explain how he came by
his findings.
It is a basic
legal proposition in
admissibility of evidence,
though, subject to some
exceptions which do not apply in
this case that where evidence is
tendered and not objected to the
party who should have objected
would be deemed to have admitted
it. Again, if evidence is
tendered and a party fails to
cross examine so as to challenge
its veracity, the party, subject
to some exception which are
inapplicable here would be
deemed to have admitted the
contents of the evidence. In
this appeal, evidence on record
from the testimony of the
plaintiff reveals that he was
admitted at the hospital for 4
months and after his discharge
he was issued with a medical
report by the doctor. The record
further shows that plaintiff
tendered the medical report
which was admitted without any
objection to its admissibility
and was marked exhibit “A”.
During the cross-examination of
the plaintiff on 10th
July, 2015 and his recall on 31st
August, 2015, not a single
question was put to the
plaintiff challenging or
discrediting the medical report.
The question which came close to
the medical report was that put
to the plaintiff that it was not
correct his genital organ was no
longer functioning correctly
which he denied. Caught in
between a terse question that
plaintiff’s organ was
functioning properly and a
medical report which described
in vivid form the injuries
suffered by the plaintiff as
assessed by medical
professionals from the Komfo
Anokye Teaching Hospital which
was tendered in evidence without
objection and was not
discredited in
cross-examination, we would opt
for, accept and rely on the
medical report exhibit “A”. The
report concluded that:
“We assess
his loss of genital functions as
one hundred percent (100%). Loss
of mobility as fifty (50%) and
psychological injury as sixty
percent (60%).”
Having
accepted the medical report in
evidence without objection and
having failed to discredit the
report, its authenticity and
credibility cannot be put in
doubt by the defendant at this
appellate stage. In this regard,
the failure to call the
neurosurgeon who authored the
report is not fatal to the
plaintiff’s case as the report
in evidence speaks for itself.
The Court of Appeal in its
appraisal of the evidence
accepted the assessment in the
medical report and stated as
follows:
“Clearly the
Appellant has no hope at all
about performing any sexual
activity to wit, having sexual
intercourse……One may take
judicial notice of the cultural
environment in which we live
where sexual performance or
ability to use one’s genital
organs is very crucial. Indeed,
some people believe that when
one is deprived of the genital
functions, as the Appellant has
in the instant case, then there
is no reason to live.”
In our
opinion, the Court of Appeal had
a basis from the evidence
adduced at the trial in coming
to that conclusion on exhibit
‘A’ and cannot be faulted in its
opinion on the total loss of
sexual capacity by the
plaintiff.
Another
dissatisfaction by counsel for
the defendant against the
judgment of the Court of Appeal
is the assessment and award of a
lump sum of Gh¢140,000.00 for
non-pecuniary loss and
Gh¢10,000.00 for special
damages. According to the
defendant, the award was purely
sentimental. In the opinion of
counsel for the defendant, no
concrete evidence was led to
support matters the plaintiff
was challenged on such as the
expenses of Gh¢60,500.00
allegedly made as medical
expenses when the total receipts
tendered was below Gh¢2,000.00.
This leg of
the submissions by the defendant
had to do with the assessment of
damages. The trial judge awarded
Gh¢20,000.00 general and special
damages against the defendant.
The reasons given by the trial
court for this award was because
the consultant neurosurgeon who
was not called was the best
person to tell the court why the
plaintiff is entitled to
Gh¢400,000.00. The Court of
Appeal relied first on the
evidence adduced at the trial
that after the accident, the
plaintiff was trapped in the
truck for several hours before
gaining his freedom by which
time he had sustained severe
injuries, could not walk and use
his left wrist again, unable to
achieve an erection and suffered
incontinence. Secondly the
Court of Appeal relied on the
medical report exhibit “A” which
stated clearly that the
plaintiff was involved in a road
traffic accident and was rushed
to the Goaso Government Hospital
and later transferred to the
Komfo Anokye Teaching Hospital.
The condition in which he was
brought was stated in the
report, the findings of the
health professionals and the
assessment of incapacity.
Thirdly, the court of Appeal
took into consideration the age
of the plaintiff at the time of
the incident, his expected
working life for another 21
years in the timber industry and
awarded him a non-pecuniary loss
of GH¢140,000.00. In our view,
there was nothing sentimental
about the factors which
influenced the Court of Appeal
in the award it made.
However, in
assessing the damages, the trial
court failed to consider heads
of damages which by law ought to
have been considered in such
personal injury claims.
The Court of Appeal citing the
case of
Bradford v Pickels [1895] AC
587 considered some of
the heads of damages which it
classified into
pecuniary
and non-pecuniary loss
before making its award. It is
our opinion that having regard
to the injuries, the award by
the Court of Appeal is
manifestly low. It is our
further opinion that if the
Court of Appeal had considered
all other heads in personal
injury claims, its award would
have been commensurate with the
injuries sustained by the
plaintiff. We are, therefore
enjoined to correct what the two
courts failed to do.
In the
decision of this court in
Standard Chartered Bank (Ghana)
Ltd v Nelson [1998-99] SCGLR 810
at 824
Hayfron-Benjamin JSC restated
the circumstances under which an
appellate court will interfere
with an award of damages by
lower courts as follows:
“In reference
to the authority immediately
cited above, it is clear that an
appellate court may reverse or
vary the award of damages on the
grounds (a) “that the Judge
acted on some wrong principles
of law” or, (b) “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 damage to which the
plaintiff is entitled.” See also
Zik’s
Press Ltd v Ikoku (1951) 13 WACA
188 at 189
and
Frabina Ltd v Shell Ghana
Ltd, [2011] SCGLR 429
We think the
grounds stated in the dictum
above form the basis for us to
take a second look at the
damages awarded by the trial and
intermediate appellate courts.
Admittedly,
awarding damages in the form of
monetary compensation for
personal
injury claims is not an easy
task. One cannot conjure any
figure at all or have a table
with some guidelines or
by any arithmetic exactitude
establish what is the amount of
money which would represent pain
and suffering which a person
like the plaintiff has been
occasioned in an accident.
No two claims in such injuries
can be compared and figures of
one cannot be imposed on the
other. This is where the dilemma
and challenge lie. It is a
similar challenge Lord Morris
was confronted with
in the English case of
H.
West & Son, Ltd. v Shephard
[1963] 2 All E.R 625
at p. 631, H.L. when he
opined that "so far as
possible comparable injuries
should be compensated by
comparable awards". Adding
to these words of Lord Morris
above, we believe the facts of
each case should determine which
compensation the court should
award in claims for personal
injuries.
In the past, the courts in this
jurisdiction have been frugal
in the award of general damages
for the loss of vital organs in
running down actions, serious
motor accident claims, other
negligence related actions such
as industrial injuries, medical
malpractice injuries, and
reckless as well as
indisciplined behaviour on the
roads in the country leading to
permanent disfigurement of
innocent persons. One
justification cited by counsel
for the defendant in his
statement of case is this
court’s case of
Delmas
Agency Ltd v Food Distributors
International Limited
[2007-2008] SCGLR 748
at 760 where Twum JSC
discussing the quantum of
general damages a plaintiff was
entitled to in a breach of
contract claim stated that
“the catch is that only nominal
damages are awarded.” While
Twum JSC did not lay down any
general rule that in all claims
for general damages only nominal
damages are awarded, it appears
to us that Twum JSC’s statement
has been misread and taken out
of context and therefore cannot
be applied to personal injury
claims.
In the
dynamism of the present world,
the time has come to be forward
looking and award realistic and
comparable compensation to
comparable injuries to
adequately compensate for the
long-term deformity, mental
torture and unimaginable losses
suffered. This, we believe, will
give affected persons hope that
the State for that matter and
the justice delivery system will
not abandon them in their times
of need. It will also serve as a
deterrent to vehicle owners,
drivers, professionals and
workers into whose care precious
lives of people are entrusted.
It is precisely because of this
that at common law, exemplary,
punitive or aggravated damages
are awarded in appropriate cases
to demonstrate the court’s
disapproval of such outrageous
conduct on the part of
defendants. In this jurisdiction
as well, damages sometimes must
bite as one of the measures to
fight the high rate of accidents
and indiscipline on the roads.
In assessing the sum to which
the plaintiff is entitled, we
have taken guidance from the
words of Cockburn C.J. in the
case of
Phillips v. South Western
Railway Co. (1879) 4 Q.B.D. 406,
where the learned Chief Justice
expressed the general approach
of the courts in the assessment
of damages for personal
injuries. At 407- 408 he stated:
"But we think that a jury
cannot be said to take a
reasonable view of the case
unless they consider and take
into account all the heads of
damage in respect of which a
plaintiff complaining of a
personal injury is entitled to
compensation. These are the
bodily injury sustained; the
pain undergone; the effect on
the health of the sufferer,
according to its degree and its
probable duration as likely to
be temporary or permanent; the
expenses incidental to attempts
to effect a cure, or to lessen
the amount of injury; the
pecuniary loss sustained through
inability to attend to a
profession or business as to
which, again, the injury may be
of a temporary character, or may
be such as to incapacitate the
party for the remainder of his
life".
In the English Court of Appeal
case of
Roach v. Yates [1938] 1 K.B.
256 the following
guidelines were laid down when
assessing damages for personal
injuries similar to those
suffered by the plaintiff in
this case as follows:
"(i) pecuniary losses and
expenses down to the date of the
action;
(ii) prospective loss of wages;
(iii) nursing attendance, a sum
sufficient to cover a reasonable
weekly payment for that purpose
during the period of his life as
shortened by the accident; and
(iv) past and future physical
and mental pain and suffering,
and the shortening of his life,
a sum, in estimating which the
following consideration should
be kept in view, namely, that no
amount of money, however large,
could fully compensate the
plaintiff for these injuries,
and that the most that could be
done was to award him such
compensation as was reasonable
in all the circumstances of the
case”
Again in H. West & Son Ltd. v
Shephard (supra) at page
636, Lord Devlin catalogued the
various heads of damages a court
may consider in a claim for
personal injuries in the
following words:
"The case raises a fundamental
question on the nature of
damages for personal injury.
There must be compensation for
medical expenses incurred and
for loss of earnings during
recovery; these are easily
quantified, whether as special
or as general damage. Then there
is compensation for pain and
suffering both physical and
mental. This is at large. It is
compensation for pain and
suffering actually experienced.
Loss of consciousness, however
caused, whether by the injury
itself or produced by drugs or
anaesthetics, means that
physical pain is not experienced
and so has not to be compensated
for; and this must be true also
of mental pain. Then there is or
may be a temporary or permanent
loss of limb, organ or faculty.
Whether it is the limb itself
that is lost or the use of it is
immaterial. What is to be
compensated for is the loss of
use and the deprivation thereby
occasioned. This deprivation may
bring with it three
consequences. First, it may
result in loss of earnings and
they can be calculated.
Secondly, it may put the victim
to expense in that he has to pay
others for doing what he
formerly did for himself; and
that also can be calculated.
Thirdly, it produces loss of
enjoyment, loss of amenities as
it is sometimes called, a
diminution in the full pleasure
of living. This is incalculable
and at large. This deprivation
with its three consequences is
something that is personal to
the victim. You do not, for
instance, put an arbitrary value
on the loss of a limb, as is
commonly done in an accident
insurance policy. You must
ascertain the use to which the
limb would have been put, so as
to ascertain what it is of which
the victim has actually been
deprived."
Armed with these heads of
damages, we ask ourselves what
the appropriate level of
compensation that this court
acting as the last hope of the
citizens should award to
adequately compensate the
plaintiff in this personal
injury claim will be?
Fortunately for us, a similar
question was posed by Lord
Devlin in H. West & Son, Ltd.
v Shephard (supra). At page
638 he asked: "What is meant by
compensation that is fair and
yet not full?" His answer was:
"I think it means this. What
would a fair-minded man, not a
millionaire, but one with a
sufficiency of means to
discharge all his moral
obligations, feel called on to
do for a plaintiff whom by his
careless act he had reduced to
so pitiable a condition? Let me
assume for this purpose that
there is normal consciousness
and all the mental suffering
that would go with it. It will
not be a sum to plumb the depths
of his contrition, but one that
will enable him to say that he
has done whatever money can do.
He has ex hypothesi already
provided for all the expenses to
which the plaintiff has been put
and he has replaced all the
income which she has lost. What
more should he do so that he can
hold up his head among his
neighbours and say with their
approval that he has done the
fair thing?"
There could not have been any
better answer than this and we
wholly adopt it.
On the basis of the authorities
cited above we now proceed with
our assessment under the various
heads of damages and the
justification for so awarding.
The plaintiff was a timber
merchant of 39 years in 2009
when the accident occurred. He
will be 50 years this year,
2020. He is unmarried but a
father of one child. He has no
prospects of fathering any child
again. Marrying a woman who will
permanently be with him as a
wife is out of the question as
he pleaded that no woman will
marry him. It is not in doubt
that as a result of the
accident, he became paralysed
and this condition is likely to
remain for the rest of his life.
He
went on the truck as a whole
human being and after the
accident came out on a stretcher
and has been so ever since.
The learned
trial judge described the
paralysis of the plaintiff in
his judgment that he saw him
“in court carried in and out of
the court room anytime the case
was called”.
In addition, plaintiff has gone
through considerable
pain and suffering, cannot work
as a timber merchant again and
has no prospects of getting any
paid job from any employer. It
is not out of place to describe
plaintiff as a total wreck and a
citizen of this country with
reduced capacity to enjoy the
pleasures of life again. He is
incapable of doing anything by
himself,
cannot get an erection again and
is totally incontinent for the
rest of his life.
The plaintiff 's condition is
the worst that can happen to any
human being. It could have been
avoided but for the recklessness
on our roads, coupled with
impunity, indiscipline and lack
of value for human life by
drivers who ply the roads in
this jurisdiction.
The medical
report put his “loss of
genital functions as one hundred
percent (100%). Loss of mobility
as fifty (50%) and psychological
injury as sixty percent (60%).”
All these factors must be taken
into account in the award. Added
to this is inflation, i.e., the
purchasing power of money and
the economic factors of the day.
In June, 2012 when the action
was instituted claiming
GH¢400,000.00, the exchange rate
of the United States Dollars to
the Ghana Cedis was US$1=GH¢
1.89. In January 2020, the value
is US$1=GH¢5.60. The value of
the initial claim made by the
plaintiff has diminished over
the eight years that the case
had lingered on in the courts.
This will be a factor in our
final award.
On the award
of GH¢10,000.00 special damages,
the law is clear. Special
damages must be specifically
proved and aimed at compensating
the affected person for actual
loss suffered. The plaintiff
tendered quite a number of
receipts in evidence during the
trial. However, examining the
record reveals that most of the
receipts were ineligible and the
actual amount could not be
ascertained. It is however not
in doubt that the plaintiff
incurred expenses on hospital
bills, drugs, transportation and
caregivers who carried him up
and down. The trial court
awarded GH¢20,000.00 to the
plaintiff for general and
special damages to cover some of
the expenses incurred on his
medication. The defendant did
not appeal against this award by
the trial judge.
The Court of
Appeal after reversing the trial
judge’s findings and award on
the non-pecuniary damages
awarded the sum of GH¢10,000.00
for pecuniary losses such as his
medical expenses and travelling
cost in and out of the hospital.
Since the trial court had the
benefit of reviewing the
evidence tendered and having
regard to our present
predicament in putting the
actual receipts and invoices
together, the justice of the
case warrants that we do not
disturb the award of
GH¢10,000.00 made by the Court
of Appeal out of the original
figure of GH¢20,000.00 awarded
by the trial Court.
After
considering all the factors
discussed above, we will award
plaintiff the following damages
under the following heads:
Pre-trial loss of
earnings-------------------------------------GH¢
5,000.00
Special damages for Medical
expenses, etc---------------GH¢
10,000.00
Future loss of earnings for
twenty-one years
at GH¢ 800.00 per
month----------------------------------GH¢
201,600.00
Nursing attendants for two
nurses at GH¢ 500.00
per month for 21
years---------------------------------------GH¢
126,000.00
General damages for pain,
suffering, mental agony,
loss of amenities, loss of
expectation of life, physical
disabilities & loss of sexual
pleasures--------------------GH¢
280,000.00
Total---------------------------------------------------------------GH¢
622,600.00
We note that
the total figure being awarded
to the plaintiff far exceeds
what the plaintiff has claimed
on his writ of summons. The
question is do we have
jurisdiction to award a higher
amount than what was claimed by
the plaintiff. While we believe
that as the final court of the
land we have jurisdiction to
make any award and grant any
relief as the justice of the
case warrant, there is authority
to justify that we have power to
make the award beyond the claim
on the writ of summons. In the
case of
Amakom Sawmill & Co. v Mansah
[1963] 1 GLR 368, at 375-376,
Akufo-Addo JSC
faced
with a similar dilemma when
re-assessing on appeal damages
for personal injuries resolved
it as follows:
“There
is a point of procedure to which
I would like to avert. It will
be observed that the learned
trial judge assessed the damages
at £G3,100, but felt obliged to
enter judgment for £G3,000
because the respondents claimed
£G3,000 on their writ. The
practice in this country is that
in all money claims, whether
they be for liquidated or
unliquidated amounts. a specific
figure must, for revenue
purposes, be claimed. It seems
such a pity that a plaintiff in
the circumstances of this case
should be awarded less damages
than a court has found to be
due, merely because of the
technicality of having claimed a
lesser figure on the writ. In
such circumstances the ends of
justice will be much better
served if the court exercises
its powers under Order 28, r. 12
of the Supreme [High] Court
(Civil Procedure) Rules to amend
the figure claimed to coincide
with the figure to which in its
view the plaintiff is entitled.”
Order 16 Rule 7(1) of
High Court Civil Procedure
Rules, 2004, C.I. 47
is the equivalent of Order 28,
r. 12 of
LN 120 A. It provides as
follows:
“For the purpose of
determining the real question in
controversy between the parties
or of correcting any defect or
error in the proceedings, the
Court may, at any stage of the
proceedings either of its own
motion or on the application of
any party, order any document in
the proceedings to be amended on
such terms as to costs or
otherwise as may be just and in
such manner as it may direct.”
We, therefore, exercise our
powers by invoking Order 16, r.
7 of C.I. 47 and amend the claim
in the indorsement to the Writ
of Summons filed on 20th
June, 2012 from GH¢
400,000.00 to GH¢
622,600.00.
Since ground
7 on costs was not argued, the
conclusion is that it has been
abandoned. In the result, the
appeal lacks merit and is
dismissed in its entirety.
We vary the
award of pecuniary and
non-pecuniary damages awarded by
the Court of Appeal from GH¢150,000.00
to GH¢ 622,600.00. The plaintiff
shall recover the sum of GH¢
622,600.00 from the defendant.
N. A.
AMEGATCHER
(JUSTICE OF
THE SUPREME COURT)
ANIN YEBOAH
(CHIEF
JUSTICE)
P. BAFFOE-BONNIE
(JUSTICE OF
THE SUPREME COURT)
Y. APPAU
(JUSTICE OF
THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
CHARLES
AGBANU WITH NANA BOSOMPEMAA
ANTWI FOR THE
PLAINTIFF/APPELLANT/RESPONDENT.
IBRAHIM ADAMS
WITH CHARLES LESBAN FOR THE
DEFENDANT/RESPONDENT/APPELLANT.
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