Martin Usong V. Hanseatic International Ltd (2009)
LAWGLOBAL HUB Lead Judgment Report
O. OGEBE, J.S.C.
The appellant sued the respondent/cross appellant in the High Court of Cross River State, Ugep Division claiming general damages for negligence in the work place which resulted in the loss of one of his eyes.
The trial court gave judgment in favour of the appellant and awarded One Million Naira (N1,000,000) damages against the respondent The respondent appealed to the Court of Appeal, Calabar Division which allowed the appeal in part and reduced the quantum of damages to N500,000. Dissatisfied with the reduction in the quantum of damages awarded the appellant has appealed to this Court. The respondent/cross appellant was also aggrieved by the decision of the Court of Appeal affirming the judgment of the High Court and cross appealed to this Court.
The learned counsel for the appellant formulated one issue for determination as follows:
“WHETHER it was proper for the Court of Appeal to reduce the quantum of general damages awarded the plaintiff/appellant from N1 Million to N500,000”
The learned counsel for the respondent/cross appellant also filed a brief and adopted the issue raised by the appellant. The facts of the case are relatively simple. The appellant was employed as a forklift operator in the respondent company. On the 27th of April, 1996, the appellant was involved in an industrial accident which led to the complete perforation of his right eye. The respondent bore all the expenses for the treatment of the appellant but refused to pay him any compensation for the loss of his eye. The appellant’s appointment was terminated by the respondent and the appellant then sued the respondent claiming damages for negligence. The appellant testified on his own behalf and called a medical doctor to testify on the extent of the damage to his eye. The respondent called its accountant who knew next to nothing about how the injury to the respondent arose to testify on its behalf. The trial court gave judgment in favour of the appellant.
The learned counsel for the appellant submitted that the Court of Appeal reduced the quantum of damages from One Million Naira to N500,000.00 because in its view the trial court took into consideration in the award of damages irrelevant actors and unproved matters, that is; the alleged bad treatment of the multinational companies of their employees. He submitted that the learned trial judge did not base its judgment on irrelevant factors. On the contrary, the learned trial judge based his award on strong, weighty and compelling evidence adduced by the appellant. He referred to the case of U.B.A. Limited v. Achoru (1990) 6 NWLR (Pt. 156) 254 to show the principles to guide the court in the award of damages.The learned counsel for the respondent submitted that the trial judge was wrong in considering extraneous matter to award damages in favour of the appellant and the Court of Appeal was justified in reducing the quantum of damages.At page 81 of the record of appeal the learned trial judge in awarding damages remarked as follows.”In awarding damages I must also not fail to take into consideration the high incidents of death of employees of the defendant company as has been admitted by them. The company like other multinationals operating in the state treat their employees as slaves subjecting them to all sorts of inhumanities. They are hired and fired at will and when death or permanent deformity results they are either paid nothing or given peanuts. This unwholesome attitude must stop and it behoves on counsel of such company’s retainerships to advise them to comply with laid down rules and regulations in master servant relationship and modern Industrial Relations Law.”In reducing the damages the Court of Appeal at page 179 of the record commented as follows:
“It is plain from the passage of the judgment quoted that the court below took into consideration in the award of damages, irrelevant factors and unproved matters, that is, the alleged bad treatment of multinational companies to their employees. In so doing, it based its award on wrong principle and extraneous matters thereby rendering the award liable to interference by the appellate court.”
The correct approach in the award of damages in the case of personal injury of this nature can be found in the case of U.B.A. LTD. V. Achoru (1990) 6 NWLR (Pt. 152) 254 in which Karibi-Whyte, J.S.C. stated at page 281 as follows:
“The expression ‘loss of amenities of life’ which is exemplified in the physical disability of the plaintiff is hardly quantifiable in terms of money. This is generally because apart from the fact that every person is entitled to enjoy the amenities of life, the natural and ordinary activity and age of the plaintiff, may determine the nature of the deprivation suffered by the physical injury. The value depends on the assessment of the trial judge based on the evidence, guided by awards made in respect of earlier similar disabilities.”
I agree with the Court of Appeal that the trial court took extraneous matters into consideration in the award of the general damages. It should have confined itself purely to the facts of this case and the circumstances which led to the damage to the appellant’s eye. The issue of whether or not the respondent treated its employees harshly or badly was irrelevant. However, I am of the view that the amount of one Million Naira awarded by the trial court for the loss of one eye was modest considering the fact that the appellant was claiming five Million Naira for general damages. Can that amount be regarded as too high in the circumstances of this case for the Court of Appeal to reduce it I think not. The Court of Appeal should have considered whether or not the amount of damages awarded was so extremely high as to make an entirely erroneous estimate of the damages to which the appellant was entitled. See Major Shehu Ibrahim v. Dr. Junaid S. Mohammed (2003) 6 NWLR (P.817) 615 at p.647. In not doing so the Court of Appeal was not justified in slashing the quantum of damages by fifty percent for a serious injury like the loss of an eye. Accordingly, I see merit in this appeal and I allow it. I set aside the judgment of the Court of Appeal as it relates to the quantum of general damages and restore the One Million Naira general damages awarded by the trial court. On the cross appeal the learned counsel for the respondent/ cross appellant formulated one issue for determination as follows:”Whether the Court of Appeal was not in error when it affirmed the judgment in favour of the plaintiff whose evidence was wholly inconsistent with his pleadings on material facts”
The learned counsel for the cross-appellant was at pains to show that the appellant/cross respondent did not prove negligence against his client especially as his pleadings were inconsistent with his evidence before the trial court.In paragraphs 8 and 16 of the appellant’s amended statement of claim in pages 5 and 6 of the record he averred as follows:
“8. On the 27th April, 1996, the plaintiff while in the course of his employment as a forklift operator with the defendant company’s work site at Iko-Ekperem, Biase Local Government Area, was involved in an accident when a stick fell into his right eye.
- The cause of the injury to the right eye of the plaintiff was a stick which fell straight on the right eye of the plaintiff while operating a forklift of (sic) the defendant. The defendant has negligently refused to provide a protective gear to the plaintiff to protect his head or face while operating the defendant’s forklift.”
At page 19 of the record of appeal the appellant testified as follows:
“On the 27th day of April, 1996, I was on night duty having reported to work at 2.00 p.m. As an operator all duties are divided into various parts. I took my forklift plant with my mate within the premises of the Hanseatic International Company. My duty was to fill the mill with wood logs and evacuate some particles and refuse out of the mill. While dropping the two trips for my mates to off load, I went for the third trip which I dropped at the second gate of the premises. Having dropped same I came down from the forklift to straighten the bucket I used in carrying the particles. In the process of lifting the bucket some wood particles sprang from the ground and hit me inside my right eye which was damaged. I can no longer see with the said eye. Before the incident I did not have any problem. Up till now I cannot see with the said eye.”
The evidence tallies with the pleadings and I do not agree with the learned counsel for the cross-appellant that the cross respondent’s evidence is inconsistent with his pleadings. It was in the course of his work as a forklift operator that he had this accident which resulted in the total loss of his right eye. If the respondent/cross appellant had provided him with goggles to protect his eyes, he might have been saved from this accident. In any event, apart from the cross appellant’s pleadings which denied the accident there was no proper evidence to counter the appellant’s version of how he came about the injury. I see no substance whatsoever in the cross appeal and hereby dismiss it and affirm the concurrent findings of facts by the two lower courts that the appellant proved negligence against the respondent/cross-appellant. I award costs of N50,000.00 in favour of the appellant. In the main appeal
I also award costs of N50,000.00 in favour of the appellant/cross respondent against the respondent/cross appellant in the cross appeal.
SC.261/2002
