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On 25-11-2009, the plaintiff
herein issued a writ in this
court claiming from the
defendant the following reliefs:
1.
Special Damages:-
a.
Expenses in Ghana
(i)
Korle-Bu Teaching
Hospital
- GH¢248.00
(ii)
37 Military
Hospital
- GH ¢011.00
------------------
GH ¢259.00
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b.
Expenses in South Africa
(i)
Cape Town Kaapstad Medi-Clinic
- R
987.05
c.
Expenses in United Kingdom
(i)
The Wellington
Hospital
- £ 12,205.00
(ii)
Cost of stay for sixteen (16)
weeks - £ 03,200.00
(iii)
Transportation within United
Kingdom - £ 00.416.00
to and from the Hospital
(iv)
Plane
fare
- £ 03,000.00
------------------
£ 18,821.00
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2.
General Damages
a.
Pain and suffering
- GH ¢050,000.00
b.
Loss of earnings resulting from
the injury - GH
¢100.000.00
c.
Permanent functional
impairment/incapacitation - GH
¢100,000.00
-----------------------
GH ¢250,000.00
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d.
Costs
The case of the plaintiff is
that he went to the Cinderella
Night Club at Cantonments,
Accra, on 08-12-2006, for casual
entertainment. While there, he
received a call on his mobile
phone but because of the noisy
atmosphere he decided to walk
outside to take the call. At the
entrance of the night club, he
was suddenly and unexpectedly
met with bottles and drinking
glasses flying in his direction.
One of the drinking glasses came
straight towards him so he
impulsively stretched up his
right hand to protect himself
and got hit in his right hand
palm and his hand immediately
felt numb and started bleeding
profusely. He then got to know
that it was the defendant who
recklessly threw the said
drinking glass.
The plaintiff says he was rushed
to the 37 Military Hospital for
treatment. After an initial
intensive care and treatment, he
was referred to the Plastic
Surgery Unit of the Korle-Bu
Teaching Hospital for further
treatment and surgery. The
assessment of the doctor at
Korle-Bu showed that he had
sustained a complete division of
the median nerve and a complete
division of the tendons to the
index and middle fingers. As a
result, he could not flex his
thumb and index finger and
sensation to touch on radial
three and half digits was
negative. The plastic surgeon,
based on this assessment,
performed surgery under
anesthesia on his injured hand.
On 02-01-2007, the surgeon
permitted the plaintiff to
travel to South Africa. Soon
after his arrival in South
Africa, the plaintiff says he
experienced severe pain and,
after consulting a medical
officer, it was disclosed that
the plaintiff’s hand had become
seriously infected. The wound
was thus cleaned and dressed and
it was recommended that he
should consult a hand specialist
in the United Kingdom as soon as
possible.
As a result of the above
recommendation, the plaintiff
soon thereafter consulted a hand
specialist in London and he was
made to undergo another surgery
to treat the infection to reduce
the impairment and thereby
improve the functionality of the
hand after which the doctor
issued a report.
It is further the case of the
plaintiff that despite all the
therapies he had gone through,
the doctors have determined that
he would have to live with a
permanently incapacitated hand
with limited functionality for
the rest of his life. Basic
daily tasks such as shirt
buttoning, shoe lacing, hand
shaking, writing and typing, and
even eating by hand are now very
painful and cumbersome.
It is, therefore, the
plaintiff’s case that he has
suffered his injury and
permanent incapacity as a result
of the defendant’s gross
negligence and reckless
disregard for the safety of the
public at the material time for
the defendant was fighting with
other persons during which he
threw glasses and bottles. The
plaintiff thus holds the
defendant responsible for the
pain and suffering he has had to
go through during the surgeries
and other forms of therapy
administered to him; loss of
earnings as a result of
hospitalization and out patient
treatment for a period of nine
months; permanent functional
impairment of his right hand as
well as permanent pain and
suffering; financial expenses
for the various treatments and
surgeries in Ghana, South Africa
and the United Kingdom; and
maintenance expenses. He thus
claims the reliefs stated
hereinbefore.
The defence of the defendant is
that he was compelled to throw a
glass and later a bottle to
protect himself and ward off an
attacker who was menacingly
advancing towards him. He,
therefore, denies that he was
reckless, grossly negligent and
disregarded the safety of the
public at the material time.
The defendant also denies that
the plaintiff suffered so much,
spent so much for his treatment
and loss so much financially, as
described by him. He states that
the plaintiff chose to incur his
own expenses at places and times
of his choice and at costs he
voluntarily submitted to,
without the knowledge and
consent of the defendant, and
took risks for which he cannot
hold the defendant blameable.
The defendant contends,
therefore, that the plaintiff
woefully failed to observe and
follow known and acceptable
conventions and norms in
situations of this nature, and
must bear the consequences of
the risk he took. The
plaintiff’s claims are thus
exploitative and unreasonable so
he vehemently challenges same.
On 13-10-2010, the following
issues were set down as the
issues for trial:
a.
Whether or not sequent to the
defendant’s admission that he
threw a glass at a public place
that injured the plaintiff, he
is liable to all the resulting
consequences on the plaintiff
for his stated claims.
b.
Whether or not a person who has
suffered injury as a result of
the reckless and negligent act
of a defendant requires the
defendant’s consent before
seeking treatment and care.
c.
Whether or not the plaintiff who
has sustained a serious injury
from a reckless and negligent
act of the defendant is to take
expert advice to seek treatment
and care.
d.
Whether or not the plaintiff is
entitled to his claims against
the defendant.
e.
Any further or other issues
raised by the pleadings.
The facts culminating into the
instant suit are not in dispute.
On 08-12-2006, both parties went
to the Cinderella Night Club at
Cantonments behind the Police
Headquarters. While there, a
misunderstanding arose between
the defendant and his brother,
Alim Banda, on the one hand, and
one Fezal, who claims to be a
half brother of the defendant,
on the other hand. In the
process, the defendant threw
bottles, drinking glasses and
anything at his reach on the
said Fezal. One of the drinking
glasses that the defendant threw
went straight towards the
plaintiff. The plaintiff blocked
the said glass impulsively with
his right hand and got injured
in his right hand palm. He was
rushed to the 37 Military
Hospital for treatment.
After an initial treatment at
the 37 Military Hospital, the
plaintiff was referred to the
Plastic Surgery Centre of the
Korle-Bu Teaching Hospital. He
underwent surgical operation and
was under treatment there for
about three weeks. Thereafter,
he sought permission from the
surgeon and travelled to South
Africa to visit his relatives as
he had already planned.
In South Africa, it was detected
that the plaintiff had an
infection of the wound and a
doctor there referred him to a
specialist in the United
Kingdom. The plaintiff thus
proceeded to the said specialist
in London for treatment. The
plaintiff was duly treated by
the specialist at the London
Hand and Wrist Unit.
Upon his return to Ghana, the
plaintiff instituted the instant
action claiming the reliefs set
out hereinbefore. From the
undisputed facts, two main
issues arise, namely:
a)
Whether the defendant was
negligent;
b)
Whether the reliefs sought arise
out of the defendant’s conduct.
The other issues would fall in
place as these two issues are
determined.
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WHETHER THE DEFENDANT WAS
NEGLIGENT.
The Black Law Dictionary by
Bryan A. Garner, 7th
Edition, defines the tort of
negligence at page 1056 thus:
“The failure to exercise the
standards of care that a
reasonable, prudent person would
have exercised in a similar
situation; any conduct that
falls below the legal standards
established to protect others
against reasonable risk of harm
except for conduct that is
intentionally, wantonly or
wilfully disregardful of others
rights. The term connotes
culpable carelessness.”
Baron Alderson, similarly,
defines the tort of negligence
in In Blyth vrs.
Birmingham Water Works Co.
[1856] 11 EX CH 781 at page 784
thus:
“Negligence is the omission to
do something which a reasonable
man guided upon these
considerations which ordinarily
regulate the conduct of human
affairs would do or doing
something which a prudent and
reasonable man would not do.”
From the facts of this case, the
scene of the incident is a
public place where people go for
entertainment. So, when the
defendant decided to throw
missiles at his opponent, Mr.
Fezal, he should have known that
the said missiles could hit
anybody other than Mr. Fezal.
And this was what exactly
happened. One of the drinking
glasses the defendant threw hit
the plaintiff who was
legitimately at the club. This
is a sure case of negligence on
the part of the defendant for he
did what “a prudent and
reasonable man would not do”.
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WHETHER THE RELIEFS SOUGHT
ARISE OUT OF THE DEFENDANT’S
CONDUCT
It was the negligent conduct of
the defendant which resulted in
the injuries to the plaintiff’s
right hand palm. In other words,
the cause of the plaintiff’s
injuries is a result of the
negligent conduct of the
defendant. The reliefs claimed
by the plaintiff are a
consequence of the defendant’s
negligence. The defendant admits
this but only disputes the
quantum and his ability to pay.
As for his ability to pay it has
no legal basis. It is only the
quantum claimed that can
legitimately be disputed and to
this I would now turn to.
The first claim of reliefs has
to do with special damages. It
is now trite learning that
special damages has to be
specifically set out and proved.
The plaintiff has set out the
special damages in his writ of
summons. He then sought to prove
same in his evidence which is,
basically, a documentary. The
special damages cover in the
main medical expenses,
transportation and maintenance.
(I) Medical Expenses in
Ghana.
Expenses at 37 Military Hospital
is stated to be GH ¢11.00.
In evidence, the plaintiff
tendered the receipts to cover
this expendure as Exhibits B and
B1. The two receipts reflect
that the plaintiff spent
GH¢11.00 for his treatment at 37
Military Hospital thus proving
the claim.
Expenses at Korle-Bu Teaching
Hospital is stated as
GH¢248.00. In evidence,
the plaintiff tendered receipts
as the Exhibits C series. These
receipts proved the said claim.
(II) Medical Expenses in
South Africa.
The amount stated is
R987.05. The evidence in
support of this claim is
receipts tendered as Exhibit E
and E1 which proves the said
claim.
(III) Medical Expenses in
the United Kingdom.
The amount stated is
£12,205.00. The evidence
in support is receipts tendered
as Exhibits F series. The total
amount contained in these
receipts is £10,732.00.
Thus, the plaintiff’s evidence
in support of the medical
expenses in the United Kingdom
proves that he spent
£10,732.00.
(IV) Transportation
Expenditure.
The plaintiff claims
£416.00 as
transportation within the United
Kingdom to and from the
hospital. The only evidence led
in support of this claim is
Exhibit G which is a document
concerning a taxi fare where it
is stated £12.00. He testified
that Exhibit G is a note for the
cost of taxi from where he was
staying to central London for
the doctor’s consultation. This
evidence does not assist the
court at all to determine the
amount the plaintiff spent on
transportation to and from the
hospital. There is no evidence
of the number of times he
visited the hospital. The
plaintiff, thus, fails to prove
that he spent £416.00 on
transportation to and from the
hospital in the United Kingdom.
So, on this head, I award him
the face value of Exhibit G
which is £12.00.
The plaintiff also claims
£3,000.00 as plane fare.
He has, however, not provided
the court any evidence to
support this claim. It is
obvious that he went by air from
South Africa to the United
Kingdom but there is no ticket
to show the amount he spent.
This court cannot conjecture the
amount for him. So, although it
is certain that he went by air,
he will get no award for this
out of his own making.
(V) Cost of Maintenance
for 16 weeks in the United
Kingdom.
The plaintiff claims he spent
£3,200.00 for 16
weeks in the United Kingdom
during the period of his
treatment. Again, he has not led
any evidence to show how he
arrived at this figure. As
indicated earlier, special
damages must be strictly proved.
The plaintiff has not made any
attempt to prove how long he
stayed in the United Kingdom and
how his pattern of upkeep was.
It is true he had to maintain
himself which is a notorious
fact. But he cannot just claim
any amount without proof. In any
case, he would have been
spending on his upkeep if he was
not in the United Kingdom for
the treatment. This claim,
therefore, has no basis at all.
So, by way of special damages,
the plaintiff is entitled to the
following:
(a)
(i) GH¢248.00
(ii) GH¢011.00
………………..
GH¢259.00
(b)
R987.05
(c)
(i) £10,732.00
(ii) NIL
(iii) £00,012.00
(iv) NIL
…………………
£10,744.00
I would now proceed to consider
the claim for general damages.
There are three heads under
which the plaintiff makes this
claim, namely:
(a)
Pain and Suffering
(b)
Loss of earnings.
(c)
Permanent functional
impairment/incapacitation.
General damages are at large.
The court considers all the
facts and circumstances of the
case to position itself in
awarding same. The facts of the
case have already been stated
and I would not repeat same
except for purposes of emphasis.
I would thus consider the awards
in the order in which I stated
them above.
(a) Pain and suffering.
The evidence shows that the
injury caused made the plaintiff
to attend various hospitals and
underwent surgery twice. He must
have suffered greatly. However,
the claim for GH¢50,000.00,
in my view, is on the high side.
I award him GH¢20,000.00.
(b) Loss of earnings.
The plaintiff’s evidence is that
he was earning about
US$85,000.00 per year prior to
the injury. He tendered his tax
returns in evidence (Exhibit J)
to prove same. As a result of
this injury, he was out of job
for 9 months. Apart from the
salary, he received bonuses and
commissions. He thus claims the
sum of GH¢100,000.00.
The plaintiff is certainly
entitled to damages for loss of
earnings. However, apart from
this incident, other unexpected
ones could have happened. Also,
he did not stay out of work for
one year. He did not pay tax. In
the circumstances, I would award
him GH¢50,000.00
on this head.
c. Permanent impairment.
The evidence in support of this
claim is Exhibit H which is a
letter from Mr. G. Bantick FRCS
(Plast), the Consultant Plastic
and Hand Surgeon of the London
Hand and Wrist Unit. In Exhibit
H, it is stated in the last
sentence thus:
“The injured hand will not
recover completely and there
will be some permanent
functional impairment.”
The plaintiff claims the sum of
GH¢100,000.00
under this head. This amount, I
find, is too astronomical.
Exhibit H does not say the
plaintiff is so injured that he
cannot work. Indeed, the
plaintiff, in his
evidence-in-chief, testified
that he is now in the business
that distributes safety medical
devices. So, his disfunction is
not too great to affect his way
of life and livelihood
drastically. On this head, I
award him the sum of
GH¢30,000.00.
In sum, by way of general
damages, I award the plaintiff a
total amount of GH¢100,000.00.
The plaintiff is awarded cost of
GH¢5,000.00.
COUNSEL:
1. Mrs. M. Y. N. Achiampong for
Plaintiff.
2. Mr. Bright Akwetey for the
Defendant.
(SGD.) UUTER PAUL DERY
JUSTICE OF THE HIGH COURT.
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