Godwin Chukwu & Ors V. Gabriel Makinde & Anor (2007)
LawGlobal-Hub Lead Judgment Report
ALI ABUBAKAR BABANDI GUMEL, J.C.A.
This is an appeal against the judgment of Ondo State High Court, Akure Division in Suit NO.AK/173/88. The respondents, as plaintiffs before the lower court, claim for general and special damages against the appellants for negligence and recklessness. The case of the plaintiffs at the lower court was that the 1st appellant, as a driver of a Trailer vehicle belonging to the 2nd appellant parked the vehicle negligently and recklessly at a bend and on the main highway between Ilesha and Akure. As a result of this wrong or improper parking of vehicle, a Mercedes Benz car collided with the rear of the Trailer. The Mercedes Benz car was on its way to Igbara-Oke in Ondo State and it was driven by the 1st respondent in company of the 2nd respondent who was his wife. The respondents suffered some injuries as a result of the collision. They were treated at various hospitals. The 2nd respondent suffered more injuries as she lost some teeth and has since remained with a scarred and disfigured face.
In a well considered judgment, the learned trial judge found the appellants jointly liable and awarded special and general damages under various headings. To the 1st respondent, he was awarded the sum of N15,000 (Fifteen Thousand Naira) both for damage to his Mercedes Benz car and for trauma, pain and suffering. For the 2nd respondent, she was awarded a total sum of N154,0.84.64 (One Hundred and Fifty four Thousand, Eighty four Naira, Sixty four kobo) for cost of medical treatment, pain, suffering, permanent disability, loss of expectancy of life and earnings etc. So judgment was given for the respondents for a total sum of N169,084.64. It was also the judgment of the lower court that the judgment sum was to have an 8% interest per annum from the date of judgment (8th June, 1995) till the final liquidation of the entire judgment sum.
The appellants were dissatisfied with the decision of the lower court on the quantum of damages. Consequent upon this, the appellants filed a notice of appeal dated 4th September, 1995, incorporating 3 grounds of appeal. The appellants brief is dated and filed on 3rd November, 1997, while the respondents’ brief is dated 13th December, 1999 and was deemed filed on 18th January, 2000.
From the grounds of appeal, the appellants formulated 3 issues for determination in this appeal. They are:
“ISSUES FOR DETERMINATION:
- Whether or not the trial court was right in awarding damages for pain and suffering and of the answer is yes, whether he was right in awarding different heads of damage for pain and suffering to the 2nd Plaintiff?
- Whether or not the evidence proferred by the 2nd plaintiff in proof of permanent disability and loss of expectation in life was sufficient to ground an award? And if the answer to question NO. 2 is positive;
(a) whether the evidence was sufficient to justify the award of such a huge sum of money?
- Whether or not the award of N10,000.00 damages for loss of earnings to the 2nd plaintiff by the trial court was proved by legal evidence?
The respondents adopted the 3 issues for determination as formulated by the, appellants.
On the 1st issue for determination, learned counsel to the appellants, Chief Nwadike referred to the amended statement of claim and pointed out that the respondents did not plead any general damages under the heading of ‘pain and suffering. He added that because parties are bound by their pleadings, the award of general damages by the lower court under the heading -pain and suffering has remained unsustainable. He submitted that the failure of the 1st plaintiff/respondent to specifically plead for an award for pain and suffering did not entitle him to lead evidence on that head of damages. Learned counsel referred, to REGISTERED TRUSTEES APOSTOLIC CHURCH V. OLOWALENI (1990) 6 NWLR (PT. 158) 534, and GEORGE V. DOMINION FLOUR NULLS (1963) 1 ALL NLR 71. He highlighted the decision of Agu, JSC in OLOWALENI (supra) that where a plaintiff s pleading is defective, it could constitute a definite guarantee for his failure as he cannot lead evidence on any fact which is not pleaded and any evidence on a fact which was not ‘pleaded goes to no issue. Turning to the case of the 2nd respondent, Chief Nwaclike, pointed out that what was pleaded on her behalf was shock but instead of the trial Court awarding her damages for shock, she was awarded damages for pain and suffering which was not pleaded. Further to this, learned counsel submitted that pain and suffering from the same head of damage, but the lower court made pain and suffering as separate individual heads of damage.
After a lengthy quotation from the judgment of the lower court at lines 33-46 on page 117 and lines 1-3 at page 118 of the record of appeal, learned counsel faulted the evaluation of the evidence before the court to support the separation of an award for damages for pain on the one hand and suffering on the other hand. He contended that the analysis and consideration used by the learned trial judge in arriving at the award of damages for pain is the same as the one used, in arriving at the award for suffering. Learned counsel referred to the case of STRABAG CONSTRUCTION CO. LTD. V. OGAREKPO (1991) 1 NWLR (PT.179) 733 where it was held that in an action for personal injury, the damages are always divided into two main parts, namely, special damages and general damages. According to this decision, special damages has to be specifically pleaded and proved and includes out of pocket expenses, loss of earnings etc. This is generally capable of exact substantial calculation. With respect, to general damages they are such which the law implies and need not be specifically pleaded. This includes compensation for pain and suffering and the like, and if the injuries suffered were such as to lead to continuing of permanent disability; compensation for loss of future earnings. Upon this decision, Chief Nwadike maintained that awards are confined to pain and suffering as a single entity and not otherwise. He submitted that the award of separate heads of damage for pain and for suffering amounts to double compensation. Calling in support, the case of UBA V. ACHORU (1990) 6 NWLR (PT.156) 254, learned counsel maintained that “pain and suffering” is a single wholesome entity for the purpose of award of damages in personal injury actions. He submitted that separate heads of awards for pain and suffering were made on wrong principles.
On the effect of an award of damages on wrong principles, Chief Nwadike pointed out that an appellate court can interfere with an awards made under general damages if it was made on wrong principles of law or the amount awarded was so high or so low as to make it entirely an erroneous estimate. In support of this observation he referred to EDIAGBONYA v. DUMEZ (1986) 3NWLR (PT.31) 753 and SOLEH BONER V. AYODELE (1989) 1 NWLR (Pt.99) 549.
On the 2nd issue for determination, Chief Nwadike extensively referred to the oral evidence of PW2 and PW6 while undergoing cross-examination and the review and evaluation of same by the learned trial judge and submitted that the award of the sum of N50,000 to the 2nd respondent for permanent disability, loss of life expectancy etc was excessive. He submitted further that a loss of 10% efficiency in the performance of the 2nd respondent’s jaw should not attract the huge award for damages made by the lower court. He contended that the learned trial judge ought not to have placed any reliance on the evidence of PW6 who was a dentist and not an expert on facial surgery. He also added that since PW2 did not give any evidence on the effect of the injury on the 2nd respondent, no damages ought to have been awarded on the head of damage. He concluded this leg of his submissions by referring to the cases of AGABA V. OTUBOSIN (1961) 1 NLR (PT. 11) 299 and UBA V. ACHORD (supra) where it was held that damages in personal injury cases are awarded by courts by reference to awards made in similar cases.
Learned counsel continued to criticize and attack the evidence of PW2 and PW6. He quoted extensively from their respective evidence in-chief and isolated some areas which he considered contradictory. He maintained that the learned trial judge ought not to have placed undue reliance on the evidence of PW6 on the psychological effect of the accident on the 2nd respondent as he was not a psychologist. He submitted that the failure of the learned trial judge to put reliance only on what he chose to call legal evidence led to an award on a head of damages which was too high and also based on an erroneous estimate of the injury suffered by the respondents.
He submitted further that if the lower court had adverted its mind to the fact, that the 2nd respondent lost 2 teeth only and not three and also the fact that she underwent one surgical operation and not two, the award would have been much lower than it was. Learned counsel concluded arguments on the 2nd issue by referring to UBA V. ACHORD (supra) as per Karibi- Whyte, JSC at page 281 and submitted that on the evidenced before the court, the award of damages was too high and based on erroneous estimate of the injury suffered by the 2nd respondent so same ought not to be allowed to stand.
In opening submissions on the 3rd issue for determination, learned counsel to the appellants took up the award of the lower court on loss of earnings. While referring to the claim of the respondents in paragraphs 1(a) and 2 of the amended statement of claim and the relief for loss of earnings, learned counsel contended that the 2nd respondent might to have pleaded the nature of her business and particulars of her earnings. He then submitted that the pleadings, as it affects the 2nd respondent was insufficient to warrant her tendering oral evidence in court on the issue. Learned counsel challenged the award of N10,000.00 for loss of earnings because, according to him, evidence on record, particularly page 75 of the record of proceedings, did not support that award. He pointed out that the learned trial judge rightly disregarded the evidence of the 2nd respondent on loss of earnings. Chief Nwadike, pointed out further that having discountenanced the evidence of the 2nd respondent on loss of earnings, there was no basis for the award of damages under that head. He submitted that the award was entirely based on wrong principles of law. Without any reference to any particular case, learned counsel submitted that the authority relied upon by the learned trial judge did not apply to cases where particulars of damage were not pleaded and supported, with oral evidence thereby being distinguishable from the instant action.
“In conclusion, learned counsel maintained that the learned trial judge was in error in the award of damages. He urged us to allow this appeal and reduce the awards substantially- because the damages awarded were in excess of what was pleaded and proved.
In his response on the 1st issue for determination, learned counsel to the respondents, Chief Ademuyiwa, after formally adopting his brief and the issues formulated by the appellants, explained that the essence of pleadings is to give the adverse party notice of the claim against him and no more. He referred to Order 25 Rule 4 of the Ondo State High Court Rules 1987 which provided that pleadings shall contain only material facts on which the party relies for his claim as opposed to details which are purely matters of evidence given to establish pleaded facts. He submitted that, sufficient notice of the respondents’ claim for general damages had been brought to the notice of the appellants and maintained that sufficient facts had been pleaded by the respondents. Without any attempt to distinguish the case of STRABAG CONSTRUCTION CO. LTD. V. OGAREKPO (supra), and the instant case, learned counsel, Chief Ademuyiw’a submitted that items of general damages need not be specifically pleaded as the heads of items that could be claimed under general damages include pain and suffering. He therefore submitted further that the case of STRABAG CONSTRUCTION CO. LTD. V. OGAREKPO (supra) does not support the case of the appellants.
According to learned counsel, there is nothing magical about the words pains and sufferings being construed conjunctively and he maintained that damages awarded on these heads can be separated as in the judgment of the lower court in the instant case, or lumped together. He referred to the case of ALLENS V. HORN ELECTRICAL INDUSTRIES LTD. (1997) 2 ALL ER 1137 at 1141 where Lord Denning held that:
“We are no slaves to words but their master. We sit to give them their natural and ordinary meaning in the con in which we find them.”
Upon this view of Lord Denning, learned counsel maintained that the failure of the respondents to specifically mention pains and suffering does not render wrong any award for damages made on them.
While anchoring his position on the 1st issue, learned counsel observed that the excessiveness of the award of damages canvassed by the appellants had not been in the grounds of appeal and pointed out that any argument, which does not relate to any ground of appeal goes to no issue. He relied on AUDU V. OKEKE (1998) 3 NWLR (PT.542) 373. He urged us to dismiss ground one of the grounds of appeal for being unmeritorious.
In addressing the 2nd issue, learned counsel introduced it as having been distilled from the 2nd ground of appeal and that it pertained to a complaint by the appellants that the award of N50,000 damages was on an item of general damages which was not sufficiently pleaded and specifically proved. Having underscored the scope of this issue, learned counsel submitted that specific proof is only required in claims for special damages and not on general damages upon which this award of N50,000 was made. He adopted the definition of general damages that was applied by this court in the case of FEDERAL COLLEGE OF EDUCATION OKENE V. ANYANWU (1997) 4NWLR (PT.501) 533 AT 561 E to F, where it was pointed out that general damages means such damages as the law implies or presumes to have accrued from the wrong complained of, for the reason that they are the immediate, direct, promiximate result of such wrong as it did in fact result from such wrong directly and proximately and without reference to special character, condition or circumstances of the plaintiff.
Learned counsel pointed out that a trial judge is clothed with a judicial, discretion to award general damages provided there was enough evidence led to support the award. He referred to the evidence of the 2nd respondent at page 71 of the record of appeal as well as that PW2 and PW3 respectively at pages 29 and 31 and submitted that there was credible evidence before the lower court to show that the 2nd respondent suffered severe head injuries as a result of the accident and had remained unconscious for some time after the accident. Learned counsel highlighted the expert medical evidence tending to show that unconsciousness causes permanent damage to the brain as a result of which a person who once suffered unconsciousness can relapse into unconsciousness at any time in the future. He urged us to disregard the arguments of the appellants that there were contradictions in the evidence of PW2 and PW3. He also urged us to discountenance the submissions of the appellants that the evidence of PW5 and PW6 be thrown out. He prayed that, this issue be resolved in favour of dismissing the appeal.
On the 3rd issue, learned counsel merely referred to the oral evidence of the 2nd respondent as set on page 75 lines 4 to 5 and 11 to 13 and maintained that this evidence has remained uncontroverted and its credibility had remained intact even after cross examination as such the award of N10,000 as damages for loss of earnings is perfectly Justifiable. It was based on these submissions that learned counsel urged: us to dismiss this appeal in its entirety and to affirm the decision of the lower court.
I have read through the respective briefs of the parties together with all the decided cases and the relevant statutory provisions called in support of some submissions and arguments. Let me at this stage point out one basic, fact underlaying this appeal. It is not an appeal against liability. None of the grounds of appeal and the issues formulated thereon seek to challenge, the finding of liability for negligence against the appellants. All the 3 issues for determination concern the basis of award of damages in personal injury cases and the quantum of award as they relate to the instant case. In actions of this nature once a plaintiff has successfully shown by credible evidence that he suffered personal injury as a result of a breach bf a duty of care owed him by the defendant, the court will proceed to assess the damages claimed based upon the available facts. Damages in this case are 2 main types, i.e. special damages which cover pecuniary loss and general damages which are often times claimed and assessed under separate heads in relation to the physical injury sustained personally by the plaintiff.
The award of general damages made in favour of the 1st plaintiff/respondent is not within the purview of this appeal. Likewise the award of special damages in terms of medical expenses and cost of transportation to hospitals and clinics made in favour of the 2nd plaintiff/respondent. The complain of the appellants against the judgment of the lower court is about the awards made by the learned trial judge under different heads as to their propriety and quantum. In awarding damages under “heads of damage”, the starting point is that the award should be moderate and reasonable. It should not be extravagant or too mean.
Under the 1st issue, the complain is that the award made to the 2nd respondent for pain in the sum of N20,000 and another separate award in the sum of N25,000 for suffering ought not to have been made. Learned counsel to the appellants maintained that “pain and suffering” is a single head for purposes of award of damages in personal injury claims while learned counsel to the respondents maintained that so long as the award can be justified upon the pleadings, and the evidence led there is nothing magical in lumping “pain” and “suffering” together for the purpose of a lump sum award.
In making his award for pain, the learned trial judge said:-
“I now go back to the issue of her personal injuries and disability. Without any doubt, she suffered a great deal of pain as a result of the accident, consequent surgical operations and the wounds from those operations. For these pains, I make an award of N20,000 (Twenty Thousand Naira).”
After having taken view of the evidence on pain and making it an entity for the purpose of assessing damages, the learned trial judge went further to hold;
“I take her suffering as a separate head for the purposes of assessing damages. Pain and suffering and the loss of life expectancy are areas of assessment which cannot be precise. Yet the court must make an estimate as best as it can. Under suffering, I include the trauma and the emotional distress she experienced, her depression and her difficulty in coping with family…. For this suffering, I assess damages and I hereby allow N25, 000 (Twenty five Thousand Naira).”
In making these findings upon which damages were assessed, the – learned trial judge put reliance on the expert evidence of PW2 and PW6.
His reliance on this evidence was attacked by learned counsel to the appellants. This attack is utterly preposterous, as the learned judge had no option than to rely on this evidence. It was mandatory for him to rely on it being credible expert evidence on pleaded facts in issue. It was also unchallenged and uncontradicted evidence. To discountenance this evidence in the circumstance of this case would have been unreasonable and perverse. Whether the 2nd respondent had one or two surgical operations or lost 2 or 3 teeth, in my view, would appear to be profoundly irrelevant for purposes of assessing pain and suffering. It is significantly sufficient that the victim of an accident had to undergo a surgical operation. It is no less painful to loose a tooth than 2 or more teeth. The fact that the 2nd respondent, has been shown by credible evidence to have lost some teeth permanently is enough pain and suffering.
I should observe that, though the appellants, as defendants, filed a statement of defence and even a counter-claim, they did not lead any oral evidence in proof of the averments in the statement of defence and counter-claim. The learned trial judge rightfully considered the defence of the appellants as duly having been abandoned. Though learned counsel to the defendants at various times cross-examined the witnesses of the respondents, the cross-examination did not achieve much of its purpose as it was neither significant nor profound. So much of the respondents’ evidence remained unchallenged and credible.
After reviewing the decisions in UBA V. ACHORA (supra) and a number of English cases, this court in the case of STRABAG CONSTRUCTION NIGERIA LTD. V. OGAREKPE (as per Uwaifo, JCA) as he then was at. 754, observed that:-
“…no principle can be laid down upon which damages for pain and suffering can be awarded by sheer calculation in terms of money but that having been recognized as a topic for the award of damages … the court must consider what the compensation should be. But it does appear that awards for pain and suffering are usually generous depending on the extent of the injury and suffering that accompanied it.”
It is very clear to me that there is some misconception by learned counsel to the appellants that “pain and suffering” is a single head for purposes of an assessment of damages in personal injury claims. The case of UBA V. ACHORA (supra) cannot by any stretch of imagination be put forward as authority for the preposition that “pain and suffering” must remain in a pigeon-hole as a single head for award of damages.
In the lead judgment, Karibi-Whyte, JSC defined pain and suffering and also quoted extensively from the judgment of Lord Morris of Borthy – Gest in H. WEST and SONS LTD. V. SHEPHERD (1963) 2 AU ER 625 at page 633 viz:-
“damages are designed to compensate for such results as have actually been caused. If someone has been caused pain then damages to compensate for the enduring of it may be awarded … Apart from actual physical pain it may often be that some physical injury causes distress or fear or anxiety. If, for example, personal injuries include the loss of a leg, there may be much physical suffering … an inevitable and constant awareness of the deprivations which the loss of the leg entails.”
In the instant case, undergoing a surgical operation or a number of them or loss of a tooth or teeth can be painful enough, that is physical injury wise. In the con of an affliction, a surgery almost always may involve the inflicting of real pain on a person afortiori loss of teeth. A pain may be transient such as with respect to a wound that was bound to heal after intensive, or mild medication or by mere effiuxion of time. Afterall, time heals wounds. However, apart from physical pain having to manage a painful physical injury until it heals is an enough suffering.
Based on the foregoing, I do not think that it should be taken as an ex cathedra fact that an award must always be made for pain and suffering only as a single head for damages in personal injury cases. What should be considered at all times must relate to the claim before the court, the pleadings and the evidence led in proof of them. In the instant case, there is ample evidence that the 2nd respondent underwent 2 surgical operations and also lost 3 teeth as a result of the accident and was fitted with dentures, a permanent reminder to her of the accident. Upon this evidence, the appellants have not shown why the awards of N20,000 for pain and N25,000 for suffering are wrong. This court can only interfere with an award under general damages if it is made on wrong principles of law or the amount awarded is so high or so low as to make it an entirely erroneous estimate. See EDIAGBONYA V. DUMEZ (supra). In my view the learned trial judge was right to award damages to the 2nd respondent for pain and suffering and to do so, as he did, under different headings. I do not see any reason to disturb or interfere with these awards.
On the 2nd issue, the learned trial judge found and held that:-
“There is also medical evidence on her permanent disability and loss of life expectancy. She lost three permanent teeth which were replaced with artificial dentures. The maximum level of efficiency her jaws could ever achieve following the accident was stated by PW6 as 90% instead of 100%, and there is no way her injuries would help to prolong her life. In the con of the Doctor’s evidence by this he meant that her loss of life expectancy could not be determined precisely but that it must be there. For permanent disability and loss of life expectancy, I award N50,000 (Fifty Thousand Naira).”
General damages for personal injuries are to compensate for results that have actually been caused which may consist both of physicial loss (e.g. loss of teeth) which is an objective element of damages and of pain and suffering or loss of expectation of life or permanent disability, which form a subjective element. There was evidence before the lower court that the 2nd respondent lost. 3 permanent teeth, There was also evidence of permanent disability as to attract an award of damages because of a permanent damage to her brain as a result of unconsciousness which could re-occur at any time in the future. Any person who is not sure of his, future mental stability must be in a state of deprivation as to affect his enjoyment of amenities. For example, a person who is not so sure that he would not suffer unconsciousness, as a result of a relapse, cannot drive a car or motorcycle.
In his evidence in-chief PW2 told the court that 2nd respondent suffered injuries which he described as follows:-
“The injuries for which I have been treating her were sustained to the bones and tissues of the face. The injuries were severe… On examination, I found that she had fractured three major bones on her face.”
In the case of STRABAG CONSTRUCTION COMAPANY NIGERIA LTD. V. OGAREKPE (supra) the judgment of Sellers; LJ in WISE V. KAYE (1962) 1 ALL ER 257 was referred to and applied. I find that portion of the judgment relevant for the determination in this appeal. Sellers, LJ observed:-
“It has always been accepted that physical injury and the personal experience of pain, and also of suffering, Including worry and anxiety for the future and apprehension … or deprivation of activity owing to disablement or embarrassment or limitation felt by reason of disfigurement, cannot in, any true sense be measured in money … but the law requires compensation to be assessed … These are, however, well known heads of claim which have throughout the years been translated into money and which the courts have sought to’ assess.”
Having the entire evidence in this matter in full focus and the state of the law, l am fully satisfied that the learned trial judge was very conservative and sufficiently moderate in his assessment of damages. There was impeccable and overwhelming evidence before the lower court to assess and award damages for permanent disability and loss of expectation of life. The award of N50,000 was quits reasonable and proper in the circumstance. The 2 questions in the 2nd issue must consequently be answered in the affirmative.
Upon the averments in paragraphs 1 (a) and 2 of the amended statement of claim and the relief for loss of earnings on one hand and the oral evidence led at the trial to support the award of damages for loss of earnings in favour of the 2nd respondent. In her evidence in-chief, the 2nd respondent told the court that:-
“Before the accident, I was realizing as profit from my Fashion design business about, N24,000 per annum. Since the accident, I have not been working at all as a Fashion designer so that I have not derived any income from that source.” See lines 11-16 of the record of appeal (page 75).
Just before that; paragraph lea) of the amended statement of claim goes as follows:-
“1(a) The 2nd plaintiff is the wife of the 1st plaintiff and a business woman.”
Further to this paragraph 2 is as follows:-
“2. The plaintiffs (sic) is happily married to Mrs. Funniilayo Makinde the 2nd plaintiff who is a business woman residing in her matrimonial home at 10 old Ilesha Road, Igbara-Oke.”
The 2nd respondent gave evidence as PW5. She ended her evidence in-chief on 3rd ‘February, 1994. After series of delays, largely occasioned by the unprofessional and unwholesome attitude of learned counsel to the appellants Mr. Emeka Ugwu, PW5 was eventually cross-examined on 31st January, 1995. This cross examination was of no moment as it did not in any way howsoever challenge or impeach the evidence in-chief of PW5.
While reviewing the evidence before him in the judgment the learned trial judge, at page 106 of the record of appeal alluded to the evidence of PW5 on the amount of profit she makes on her Fashion design undertaking.
Further in the judgment, the learned trial judge found as follows at page 117 of the record i.e.:-
“Although she claimed for loss of earnings as part of general damages … she did not give any particulars in her (sic) amended statement of claim indicating the basis of calculating such loss of earnings. During the trial, she led evidence on how much she was earning before the accident and that since then she has (sic) not been able to earn any income. The details given in that evidence must be disregarded as not being based on the pleadings.
I will, however, allow the sum of N10,000 (Ten Thousand Naira) taking into account the extent of injuries received, the periods she spent in the hospitals and the time she spent in attending hospital subsequently.”
The learned trial judge made findings and assessed and awarded damages for loss of earning based on his own interpretation of the evidence before him. He was right to do so as it was well within his discretionary jurisdiction to do so. I do not think his interpretation of the evidence and the award of the sum of N10,000 was unreasonable or perverse in the circumstance of the instant case. I therefore, do not see any reason to interfere with the award N10,000.00 for loss of earnings. The answer to the 3rd Issue must also be of the affirmative. This appeal lacks merit and It ought to he dismissed. Appeal is hereby dismissed for being unmeritorious. The judgment of the lower court dated 8th June, 1995 is hereby affirmed.
I order for N10,000 costs against the appeallant .
Other Citations: (2007)LCN/2218(CA)
