Kenneth Ighosewe V. Delta Steel Company Limited (2007)

LawGlobal-Hub Lead Judgment Report

S. A. IBIYEYE, J.C.A.

In the High Court of Justice of Delta State holden in Warri Judicial Division in suit No.W/82/91, the plaintiff who is now the appellant in paragraph l3(a) of his 2nd Amended Statement of Claim sought the following claims emanating from:-

“(i) excruciating recurring pain and suffering from the finger next to the index finger; the permanent disfigurement

of the said finger and its further and better treatment as a result of the negligence breach of statutory duty aforesaid ….. N1,000,000.00

(ii) the partial disfigurement of the thumb which was cut or sliced as a result of the negligence/breach

of statutory duty afore said …. N100,000.

(iii) costs of treatment of the index finger that was chopped off and which often grows down into the palm

instead of growing upward and the excruciating pains from the finger arising

out of the negligence/breach of statutory duty N2,000,000.00

(iv) permanent loss of the index finger N1,000,000.00

= = = = = = = = = =

N4, 100,000.00

General Damages………… N1,000,000.00

= = = = = = = = = =

N5,100,000.00”

= = = = = = = = = =

The defendant as the respondent on its part in its paragraphs 13(a) 14 and 15 of the equally 2nd Amended Statement of Defence averred as follows:-

“13(a) Paragraph 13(a) of the 2nd Amended Statement of Claim is vehemently denied. The claims are speculative and not based on any medical examination.

14. The defendant shall contend that the plaintiffs benefits as worked out by NICON and Fidelity Bond of Nigeria were refused by the Plaintiff. His demands were unreasonable and far beyond what he is entitled to under the agreed condition of service and under the Group Personal Accident Scheme applicable to all staff of the defendant.
15. The defendant shall urge on the Honourable Court to dismiss the plaintiffs claim in that it is misconceived, speculative and very unreasonable. The defendant shall in the alternative contend that the plaintiff was more negligent than the defendant. Thus, the defendant pleads contributory negligence. Particulars of contributory negligence of the plaintiff: –

(i) The revolving machines ought to have been switched off when the plaintiff discovered that the hidden scales were close to it.

(ii) The plaintiff took an unreasonable risk.

(iii) The plaintiff had a duty to notify the operators of the revolving machines at the central room to stop it to enable him remove nearby scales. He did not do so.”

The case proceeded to trial at which evidence was adduced by the plaintiff in person while an engineer in the employ of the defendant testified in behalf of the defendant.

At the close of the cases for the plaintiff and the defendant their learned counsel strenuously addressed the trial Court. In a considered judgment, the learned trial Judge held, inter alia;

“After a careful evaluation of the evidence before me, the Court is of the view that the defendant is in breach of its duty to the plaintiff by its failure to provide him with the appropriate working tools or implements for his job and its failure to prescribe and enforce a safe system of work. In view of this, the Court holds that the breach of these duties is responsible for the injuries sustained by the plaintiff to the course of his duty (sic).

The plaintiff claims damages for pain and suffering which is a recognized head of claim in personal injury cases. See STRABAG CONSTRUCTION VS. OGHAREKPE (supra); ESEIGBE VS AGHOLOR (supra); U.B.A. VS. ACHORU; OMOREGIE VS. OMIGIE (supra)

Having accepted by both parties (sic) that the plaintiff sustained injuries, the nature of which is known and accepted by both sides, he is entitled to damages for pains and suffering. Apart from the claim or under this head, the plaintiff also claims for permanent disfigurement of a finger, partial disfigurement of the thumb which he said was sliced off, cost of treatment for the index finger and cost of further treatment for the injuries. In this regards (sic), I agree with the defendant’s counsel that medical evidence is necessary

…………………………….

…………………………….

On the issue of damages, the Court is of the view that the plaintiff is entitled only to the claim for pains and suffering and disfigurement. The nature of the injury which was accepted by both parties is as follows: –

Loss of little finger, partial loss of the thumb and crushed 4th finger.

Having considered what should be an adequate quantum of damages for the plaintiff in the circumstances of this case, the Court is of the view that an award of N15,000.00 (fifteen thousand Naira) would meet the justice of this case. Judgment is thereby entered for the plaintiff in the sum of N15,000.00 (fifteen thousand Naira).”

(Underlining for emphasis).

The plaintiff was utterly aggrieved by the quantum of damages assessed by the trial Court in his favour at N15,000.00 and appealed to this Court on four grounds.

This Court having been seised of the appeal, the appellant sought and got its leave on 3rd May, 2005 to amend typographical errors on page 21 lines 19 and 20 of the record of appeal to read N1,000,000.00 and N5,100,000.00 respectively instead of N100,000.00 and N1,500,000.00.

In strict compliance with the rules of this court, the learned counsel for the appellant and the respondent filed and exchanged their respective briefs of argument.

In the appellant’s brief of argument settled by I. Ovwighorienta, Esq., the following issues were raised for the determination of this appeal: –

“1. Whether the learned trial Judge was right in assessing damages by allowing his mind to be influenced by his finding that the appellant’s earning capacity and ability to effectively carry out his duties have not affected by the injury suffered by the appellant. (sic ).

2. Whether having regard to the evidence and the nature of injuries the trial court was right in holding that there is need for medical evidence to prove the effects of the injuries on the appellant and that medical evidence is necessary to prove the need for and cost of further treatment.
3. Whether the award of damages to the appellant in the sum of N15,000.00 was not manifestly inadequate and unreasonable having regard to his permanent disability, disfigurement and all the circumstances and evidence in this case.”

The respondent, on its part, relied on the following three issues raised by Miss Edna Eghove, its learned counsel, for the determination of this appeal: –

“1. Whether the learned trial Judge erred in law when he held that the appellant’s earning capacity and ability to effectively carry out his duties has not been affected by the injuries.

2. Whether the learned trial Judge erred in law when he held that medical evidence is necessary in proving the effects of injuries and further cost of treatment and the permanence of the injury.
3. Whether the learned trial Judge erred in law in awarding N15,000.00 as general damages for pains and suffering and disfigurement.”

It is apparent from the wording of the parties’ two sets of issues that they are not dissimilar. It is therefore regular to determine the instant appeal on any of the two sets of issues raised by the parties. I shall in particular make use of the issues adumbrated by the appellant for the determination of this appeal.

At the hearing of the appeal, the learned counsel for the appellant and the respondent separately adopted and relied on their respective briefs of argument and each of them urged the Court to decide in favour of the appellant and the respondent.

It is appropriate at this stage to state that the gravamen of the appellant relates to the quantum of damages awarded to him by the trial Court.

On Issue No. One, the learned counsel for the appellant submitted that the learned trial Judge was wrong in assessing damages by allowing his mind to be influenced by his finding that the appellant’s earning capacity and ability to effectively carry out his duties have not been affected by the injury suffered by the appellant. The learned counsel for the appellant expatiated that the appellant pleaded and adduced oral evidence in line with the pleadings that he lost his index finger, his fourth finger and his thumb partially. Apart from the oral testimony which was not challenged, Exhibit B (that is Industrial Safety Department Accident Investigation report) prepared by the respondent also confirmed the nature of the injury/harm suffered by the appellant to the effect that he (the appellant) suffered sever physical harm – a lost little finger, a partial loss of the thumb and a crushed 4th finger. Learned counsel contended that with the severe physical harm suffered by appellant, the trial court ought to have known or taken judicial notice of the fact that appellant’s lost 2-1/2 fingers on the left hand could not be as functional/effective as when the whole five fingers were intact when on the job of the respondent or any other social and human activities, a normal and complete human being engages in. The learned counsel therefore submitted that the learned trial judge was wrong in his finding that the injury did not affect the appellant’s earning capacity and his ability to effectively carry out his duties. This finding, the learned counsel contended, is quite presumptuous and does not enjoy the support of available evidence that is to say loss of 2-1/2 fingers. The learned counsel although conceded the obvious that the appellant is still in the employ of the respondent and still performs his duties, there is clearly no evidence that the appellant is effectively carrying out his duties. He argued that there can be no such inference from available evidence in view of the severe physical harm suffered by the appellant.

The learned counsel further submitted that it is trite that the fullness and adequacy of damages awarded as compensation will in each case depend on proved solid facts of the case and a just and fair assessment of the effect of the injury complained of. Damages are assessed as a lump sum and a once and for all exercise not only in respect of the loss accrued before the trial but also in respect of prospective loss. He equally went on to expatiate that if a person lost a leg, the court approaches the matter on the basis that he has suffered a serious physical deprivation, no matter what his condition or temperament or state of mind may be; that deprivation may also create further economic loss, which should be added to the assessment. These considerations are hardly dealt with as separate items but are taken into account by the Court in fixing one inclusive sum for general damages and he cited in support the case of EDIAGBONYA VS. DUMEZ (NIG.) LTD. (1986) 3 NWLR (PART 31) 753 at pages 753. The learned counsel equally referred and relied on the case of EBE VS. NNAMANI (1997) 7 NWLR (PART 513) 419 at 511 and 512 where the learned trial Judge gave no consideration whatsoever to prospective loss most especially in the face of the unchallenged evidence that the appellant in that case would require psychiatry monitoring whereby this Court in another division increased the damages from a paltry N70,000.00 (seventy thousand Naira) to N10,000,000.00 (ten million Naira). The learned counsel submitted that the failure of the learned trial Judge to give any consideration to prospective loss led to the wrong assessment made in the instant case as there is unchallenged oral evidence and Exhibit C (Appellant’s letter of appeal to the Respondent) that he is still having excruciating recurring pains and that he needed further treatment as a result. Learned counsel urged the court to resolve Issue One in favour of the appellant.

In reply the learned counsel for the respondent submitted that the earning capacity and ability of the appellant to effectively carry out his duties has not been affected by the injuries he sustained because the Appellant in his evidence-in-chief-testified, “I am still in the employment of the Defendant. I am still in the same department and I am still doing the same duties”. The learned counsel submitted that since the Appellant in his own evidence agreed that his earning capacity and ability have not been affected in any way by the injuries he sustained, it would be wrong for the Court to go on its voyage to make an award in respect of the appellant’s earning capacity when there is no such evidence before it. He also submitted that it is trite that in civil matters the fate of every case depends on the pleadings and the evidence in support and he relied on the case of ESEIGBE VS. AGHOLOR (1993) 12 SCNJ 82 at 101. He further submitted that from the totality of the appellant’s evidence, the trial court was right in holding that the appellant’s earning capacity has not been in any way affected by the injuries he sustained from the accident.

The learned counsel for the respondent contended that although the appellant testified that he lost 2 fingers of his left hand in the accident in issue, there is no evidence that he can no longer carry out his duties effectively. The learned counsel therefore urged the Court to hold that the trial Court was right in its decision when it held that the appellant’s earning capacity and ability have not been affected by the injuries he sustained from the accident.

I shall reiterate that this appeal is based solely on the quantum of damages awarded by the trial Court. It is equally crystal clear from the record of proceedings that the substratum of the claim is based on personal injuries sustained by the appellant in the course of the respondent’s employment. It is equally patently clear as at page 69 of the record of proceedings where the trial Court opined that the respondent was in breach of its duty of care to the appellant by its failure to provide him with the appropriate working tools or implements for his job. Consequently, the breach of the attendant duties was responsible for the injuries sustained by the appellant in the course of his duties.

It is not in doubt that the nature of injury in the instant case is personal. Personal injury is defined in a narrow sense as: –

“A hurt or damage done to a man’s person such as a cut or a bruise, a broken limb or the like as distinguished from an injury to his property or his reputation. The phrase is chiefly used in this connection with actions of tort for negligence and under the workers compensation statutes”. See page 707 of Black’s Law Dictionary, 4th Edition.

It is trite that once a plaintiff has successfully shown that he suffered personal injury as a result of a breach of a duty of care owed him by the defendant, the Court will proceed to assess the damages claimed on available facts. Damages in this sense are of two main types namely, first special damages which cover pecuniary loss which has to be specially pleaded and proved and it consists of out of pocket expenses and loss of earnings incurred down to the date of trial and is generally capable of substantial exact calculation. Secondly, general damages which the law implies and which is not specially, pleaded but sometimes claimed under separate heads in relation to the physical injury which include compensation for pain, suffering and the like personally sustained by the plaintiff. The proper thing in awarding damages in personal injury cases is to make awards for pain and suffering and also for loss of amenities of life under separate heads of damages but both falling under general damages. See STRABAG CONSTRUCTION (NIG.) LTD VS. OGUAREKPE (1991) 1 NWLR (PART 170) 733 at 752 and 755; U.B.A. LTD VS. ACHORA (1990) 6 NWLR (PART 156) 254.The learned counsel for the respondent submitted that the earning capacity and ability of the appellant to effectively carry out his duty has not been affected by the injuries he sustained. I disagree with this submission. I instead uphold the submission of the learned counsel for the appellant on this score. This is so because from the state of the record of proceedings, there is no evidence that the injuries sustained by the appellant have not effectively affected the appellant in the performance of his duties in the employ of the respondent. There is instead abundant evidence albeit unchallenged that the appellant lost 2-1/2 fingers on his left hand which was visually noticed by the lower Court and that he is still going through excruciating recurring pains and that despite the appellant’s plea to the respondent as per Exhibit C, the respondent refused to take any action. It is true that the appellant is still in the employ of the respondent. This does not, in the prevailing circumstances of the nature of the injuries he sustained, mean his ability to effectively carry out his duties is beyond doubt. It is only reasonable to conclude that a person who has disfigurement of parts of his body coupled with recurring excruciating pains cannot effectively perform his duties with such state of health. The learned trial Judge appeared to have placed considerable premium on medical evidence even though he had the advantage of observing the physical circumstances of the appellant when he testified in Court. Want of medical evidence, in my considered view, appeared to have greatly influenced the mind of the learned trial Judge to the extend of holding that appellant’s earning capacity and ability to effectively carry out his duties has not impaired his performance at work despite the conspicuous disfigurement of parts of the appellant’s body. I find considerable merit in this issue and it is accordingly resolved in favour of the appellant.

On Issue No. Two, the learned counsel for the appellant reiterated that the appellant gave evidence that he lost his left index finger; his 4th finger was crushed while his thumb was partially lost. He also referred to Exhibit B prepared by the respondent to that effect and that the respondent’s only witness on the nature of the injury suffered by the appellant identified the said exhibit showing the extent that the appellant suffered severe physical harm by the loss of little finger, a partial loss of the thumb and a crushed 4th finger. The learned counsel for the appellant equally referred to the testimony of the appellant to the effect that after his discharge from hospital he was still having excruciating pain on the left hand and that he both orally and in writing (Exhibit C) made appeals to the respondent to send him for further treatment. He also referred to Exhibit C (tendered by the appellant) which is to the effect that after the respondent’s Medical Director who had refused to grant him further surgical treatment at any other hospital, on complaint made to him (the Medical Director) took him (the appellant) to the respondent’s ward and removed by operation what he called, “corn” which he said was responsible for the pain that the appellant felt. He contended that these items of evidence were not challenged by the respondent. He therefore submitted that those items of evidence were deemed proved and he urged the Court to act on them without further proof.

He cited in support the cases of BROAD LINE ENT. LTD. VS. MONTEREY PARTIME CORP. (1995) 9 NWLR (PART 417) 1 at 27 and 44; S.C. IRIRI VS. ERHUROBARA (1991) 2 NWLR (PART 173) 252 at 255; OKOEBOR VS. POLICE COUNCIL (2003) F.WL.R. (PART 164) 189; and OBERE VS. THE BOARD OF MANAGEMENT EKU BAPTIST HOSPITAL (1978) ANLR 155 (represent). He equally urged the Court to hold that Exhibit C is solid evidence that the earlier treatment given by the respondent was not satisfactory. He submitted that it only goes to show that the appellant is still suffering the excruciating recurring pains. The learned counsel referred to a Supreme Court case of C & C CONSTRUCTION CO. LTD VS. OKHAI (2004) 1 WLR (PART 190) 1433 at 1448 where it is clearly stated that expert evidence of a medical doctor is not necessary to prove pain and suffering and urged the court to resolve the instant issue in favour of the appellant.

The learned counsel for the respondent, in his reply to Issue No. Two, submitted that the learned trial Judge did not err in law when he held that medical evidence is necessary in proving the effects of the injuries and further costs of treatment and the permanence of the injuries. The learned counsel instead posed the following three issues for consideration by the Court: –

(i) What is/are the effect(s) of the injuries on appellant?

(ii) In the absence of medical evidence, can the appellant prove the costs of further treatment of the injuries? And

(iii) Can the appellant on his own without a medical doctor’s evidence or evidence from an expert, say that the injuries are permanent or not?”

The learned counsel made copious submissions on the issues he raised. I shall without expending much time say that it is only the appellant and no other person that can say the effect of the injuries he sustained through the negligence of the respondent. I am of strong opinion that there is sufficient evidence before the trial Court to sustain the damages sought by the appellant and for which that Court particularly held that they were established. This is not unconnected with several unchallenged salient items of evidence adduced by the appellant. I shall re-iterate that this is personal injury case in which there is glaring physical evidence that 2-1/2 fingers on the appellant’s left hand were either severed or crushed. It is a trite principle that once the extent of disability has been established as in the instant case, the loss of ordinary facilities or enjoyment of life can be presumed so as to enable a fair compensation to be made. Such compensation or damages for pain and suffering could be generous depending on the extent of injury and the pain and suffering that accompanied it. Damages for personal injuries being general, it is the prerogative of the trial Court to award them even though they are not quantified in money by a litigant, such a litigant is entitled to reasonable general damages. See STRABAG CONSTRUCTION (NIG.) LTD VS. OGARAKPE (supra) at 752, 754 and 756 and ESIEGBE VS. AGHOLOR (1993) 9 NWLR (PART 46) 128 at pages 142 and 143.As regards the third issue, I have strong doubt if a victim of injury needs expert opinion before he could conclude its permanence or otherwise. The law has been lucidly stated by the Supreme Court that expert evidence of a medical doctor is not necessary to prove the effect of pain and suffering in a person. Thus Pats-Acholonu, J.S.C. of blessed memory held at page 1448 in the case of C & C CONSTRUCTION CO. LTD. VS. OKHAI (supra) as follows:-

“I must confess that I am at a loss to understand what sort of medical evidence would demonstrably prove pain and suffering. Beyond seeing a sufferer wince by the contorted nature of his face in agony, I do not know the type of evidence being sought for. Anyone who has his leg crushed by machine and stayed many months in the hospital in great pain and suffering and had his crushed leg amputated has definitely suffered pain and suffering. Pain is an intangible agonizing as loss of amenities of life was therefore not considered. He relied on the case of ESIEGBE VS. AGHOLOR (1993) 9 NWLR (PART 316) 128 at 142 and 143 where Belgore J.S.C. (as he then was) stated “Once there is evidence of injury, pain, discomfort and permanent scarring and pain even though those items are not quantified in money, the plaintiff is entitled to reasonable general damages….The justice of the award of damages must be on certain circumstances which include among others a consideration whether the injury is merely transient or permanent will it be permanent so that the injured will live with it for life?”

Learned counsel referred to the unchallenged evidence of the appellant that he is still having excruciating recurring pains on the injured left hand and that there is need for further treatment. He contended that since the injury/disability suffered in the instant case is of a permanent nature and the evidence of the appellant is that it is still having excruciating recurring pains on his left hand, the damages awarded ought to be generous. He emphatically said that the awards for pain and suffering are usually generous depending on the extend of the injury and the pain and suffering that accompanied it and he cited in support the case of STRABAG CONSTRUCTION (NIG.) LTD. VS. OGAREKPE (supra) at 754. In assessing damages in the instant case, the learned counsel for the appellant submitted that the learned trial Judge erroneously believed that the appellant was only entitled to damages for pain and suffering and even at that she made a wholly erroneous estimate which undermined the extent of the pains which are excruciating and recurring and the effect of inflation on the value of the Naira and the possibility of early retirement being factors which ought to have been taken into consideration but which were not. The learned counsel further submitted that in assessing damages in this case, the learned trial Judge either failed to consider the claims for the loss of the little (index) finger, partial loss of the thumb and crushed 4th finger (which qualify as claims for loss of amenities of life or disability from the injury and costs of further treatment) or that she allowed her mind to be influenced by her erroneous holding that medical evidence is necessary to establish these claims or any of them. In furthering his submissions, the learned counsel for the appellant said it is settled that in personal injury cases such as the case in hand, claim for damages for loss of amenities of life and diminution of the enjoyment of life or disability is a recognized claim and it is distinct and separate from a claim from pain and suffering. The Court will always presume the loss of ordinary facilities or enjoyment of life once the extent of the disability is established so as to enable a fair compensation to be made. Equally pertinent in the quantum of evidence to ground a claim for loss of amenities of life is the deprivation suffered by a person because of the injury not necessarily in a professional capacity but merely in his enjoyment of the ordinary amenities of life. Hence to search for evidence of devotion or the likes is overstretching the accepted principle. In law, no specific and fixed quantum of evidence that must be adduced in support of a claim for loss of amenities of life. It is evident from decided cases on claim on loss of amenities of life that evidence of physical disability arising from the damage has always been considered sufficient. He accordingly relied on the cases of EBE VS. NNAMANI (supra) at page 508; OGU VS. IHEJIRIKA (1991) 4 NWLR (PART 185) 388 at 396; EDIAGBONYA VS. DUMEZ (NIG.) LTD (supra) at 761 and U.B.A. LTD. VS. ACHORA (supra); STRABAG CONSTRUCTION (NIG.) LTD. VS. OGARAKPE (supra) at 756.

Equally of moment in the award of damages in injury cases, the learned counsel for the appellant referred to the trite principle that although the award of damages is basically a conventional figure derived from experience and from awards in comparable cases, allowance ought to be made for increases in the rate of earning and for inflation in the value of money earned and the possibility of early retirement. Also, the tendency of wages to rise are matters to be taken into account and he relied on the cases of EDIAGBONYA VS. DUMEZ (NIG.) LTD. (supra) at 764 and OGU VS. IHEJIRIKA (supra) at 397.

In reply, the learned counsel for the respondent conceded that the issue of the quantum of damages to be awarded in a situation of personal injuries comes under general damages. He submitted that the general damages awarded by the lower Court to the appellant in the instant case is not inadequate. The learned counsel went on to make copious submissions which include that the issue of disability, period of treatment and loss for amenities of life were not canvassed before the lower Court and that the Court cannot give what is not before it as it is a fundamental principle that parties are bound by their pleadings and oral evidence adduced before it, and he relied on the case of UDENGWU VS. UZUEGBE (2003) FWLR (PART 179) 1173 at 1186/1187. The learned counsel for the respondent urged the court to resolve Issue NO.3 in the negative, as the award was not too low. But that in the alternative if the Court deems it fit to enhance the damages in this appeal, it should put the points discussed and the cases referred to into consideration.

I have incisively perused and considered the submissions of the learned counsel for the appellant and the respondent and I am of strong opinion that those of the former have sufficiently covered the issue No.3, raised for my consideration. I shall avoid re-iterating the salient principles on award of damages which are general in nature in personal injury cases. It is pertinent to highlight that it is common ground that the appellant adduced sufficient evidence on reliefs sought by him without any challenge whatsoever by way of cross examination by the respondent. Those facts are therefore deemed admitted and proved. See BROADLINE ENT. LTD VS. MONTEREY MARITIME CORPORATION (supra) at 27 and 44; IRIRI VS. ERHOBARA (supra) at 255; OKOEBOR VS. POLICE COUNCIL (supra); OBERE VS. THE BOARD OF MANAGEMENT EKU BAPTIST HOSPITAL (supra).

The learned trial Judge apparently placed considerable premium on the need for medical evidence to establish certain disabilities occasioned by the accident involving the appellant in the respondent’s company and because of want of medical evidence it refrained from making adequate compensation when items of evidence of permanent disfigurement and the need for further treatment and a claim of N2,000,000.00 were clearly available to her (the learned trial Judge). Thus, it is now firmly settled that expert evidence of a medical doctor to establish pain and suffering is not necessary nor is such evidence necessary in the consequence of any injury which can be visually observed by the Court and the parties to the case in point. See C & C CONSTRUCTION CO. LTD. VS. OKHAI (supra) at page 1448. In the instant case and by virtue of the finding of the trial Court, at particularly page 72 of the record of appeal where the learned trial Judge accepted the fact of injuries when he held, inter alia: –

“Having accepted by both parties (sic) that the plaintiff sustained injuries…”

The learned trial Judge particularly relied on the case of ESEIGBE VS. AGHOLOR (supra) where the Supreme Court held that medical evidence is necessary in personal injuries cases, and that because of the lack of it in the instant case, he awarded only N15,000.00K general damages to the appellant. It is instructive to note that in ESEIGBE CASE, the plaintiff did not lose any part of his body and so he did not make any claim for it. Whereas in this case, the appellant claimed for the loss of 2-1.2 fingers and there is unchallenged evidence of excruciating and recurring pains and damages for N1.5 Million.

In the instant case there is sumptuous evidence from the state of the record, of injury, discomfort, unchallenged excruciating and recurring pains from the permanent loss of the appellant’s 2-1/2 fingers of the left hand for which he (the appellant) is entitled to generous damages. See STRABAG CONSTRUCTION (NIG.) LTD VS. OGAREKPE (supra) at 754 and ESEIGBE VS. AGHOLOR (supra) at 142.

It is also worthy of note that in compensating a plaintiff for the permanent disability occasioned from an injury, the Judge is duty bound to assess the future risks which are of two kinds. First, whether the plaintiff would be more likely to lose his present job on account of his disability. Secondly, consideration should be given to whether the plaintiff would be less likely to get another job on account of his disability should he lose his present job for whatever reason. See FOSTER VS. TYNE AND WEAR COUNTY COUNCIL (1986) 1 ALL E. R 567 at 570 which was approvingly relied upon in the case of STRABAG CONSTRUCTION (NIG.) LTD (supra) at page 759. The rationale of the foregoing principle is that the plaintiff could hardly know what his next fate would be. The defendant may have decided to retain him in its employment on the same salary out of compunction or just for a while. The truth is, still in the defendant’s employment or outside it, his future is fraught with uncertainty as a result of his disability.

It is apparent from the record of appeal that the learned trial Judge did not advert her mind to the principle that damages in the prevailing circumstances are assessed as a lump sum and a once and for all exercise not only in respect of loss accrued before the trial but also in respect of prospective loss particularly when there are items of evidence of visible deprivation of the loss of 2-1/2 fingers and solid facts of excruciating recurring pains which will obviously necessitate further treatment.

All the several identified lapses in the decision of the learned trial Judge, with due regard, appeared to have led to the assessed inadequate damages of N15,000.00 complained of by the appellant.

The general principle of law is that an award of damages is a matter for the trial Judge and normally the appellate Court will not interfere with such award unless where the trial Judge has:

(i) acted under a mistake of law

(ii) acted in disregard of principles.

(iii) acted under a misapprehension of facts

(iv) taken into consideration irrelevant matters or failed to take account of relevant matter or

(v) where injustice would result of the Appeal Court does not interfere.

See: UNION BANK OF NIG. LTD. VS. ODUSOTE BOOKSTORES LTD (1995) 12 SCNJ 175 at 203/204; SOLANKE VS AJIBOLA (1969) 1 NWLR 45; OBERE VS. THE BOARD OF MANAGEMENT EKU BAPTIST HOSPITAL (supra).

It is equally trite that an appellate Court will alter an award of damages by a trial Court only if the award is shown to be either manifestly too high or manifestly too low or based on entirely erroneous estimation or assessment. See IJEBU ODE LOCAL GOVERNMENT VS. ADEDEJI BALOGUN & CO LTD. (1991) 1 NWLR (PART 166) 136.

In the instant case, I am satisfied, from the record of appeal, that the learned trial Judge, among other things, did not give any consideration to prospective loss which the appellant is entitled to as accrued loss before and after the trial in a situation where there is evidence that the appellant is still experiencing excruciating recurring pains from the injuries of permanent disfigurement that he sustained due to the negligence of the respondent. It is not enough that the appellant was awarded damages for pains and suffering and disfigurement. Such damages being a lump sum and a once and for all exercise must also, in order to be fair and reasonable, take care of future economic loss otherwise known as prospective loss in order to keep up with the times and in particular with the economic strength or decline, as the case may be, if our national currency, the Naira. See EJISUN VS. AJAO (1975) 1 NMLR 4 at 7. The learned trial Judge, with due regard, acted in utter disregard to one of the accepted principles. Hence there is need for the Court to interfere in the assessment of N15,000.00 made by her.

It is equally trite that in assessing what is fair and reasonable to bear in mind previous awards made by the Courts in comparable cases in the same jurisdiction or even in a neighbouring locality where similar social, economic and industrial conditions exist. I have found support in the case of EBE VS. NNAMANI (supra) at 511 being an earlier decision of this Court with circumstances similar to the instant case where the learned trial Judge gave no consideration whatsoever to prospective loss, most especially the unchallenged evidence of 2nd P.W. that the appellant shall require psychiatry monitoring and the learned Justices of this Court in that case increased the damages awarded from a paltry N70,000.00 (seventy thousand Naira) to N10,000,000.00 (ten million Naira). In the instant case, there is unchallenged evidence that the appellant is still having excruciating pains on his left hand which shall need further treatment coupled with the fact that when the appellant made earlier complaint of pains in the injured hand after his discharged from the respondent’s clinic, the Medical Director personally did a further operation to remove what he called” CORN.” See page 1 of Exhibit C.

In view of the foregoing, I am strengthened to hold that the award of N15,000.00 damages made to the appellant is manifestly inadequate and unreasonable in the face of the unchallenged evidence including a claim of N2,000,000.00 damages made by the appellant. I accordingly interfere with the award of N15,000.00 made by the trial Court. I thereby find merit in Issue No.3, and set aside the award of N15,000.00 damages made by the trial Court. In substitution thereof, I am of the strong opinion in the prevailing circumstances that an award of N1,000,000.00 (One Million Naira) is fair and reasonable to meet the justice of this case. In fact, the general damages assessed by the Court and payable to the appellant by the Respondent are in the sum of N1,000,000.00 (One Million Naira).

In the final analysis, I find substantial merit in the appeal. The appeal is allowed. The award of damages of N15,000.00 to appellant by the trial Court is set aside and in its place, the sum of N1,000,000.00 (One Million Naira) is awarded to the appellant.

Costs of N10,000.00 are awarded to the appellant.

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Other Citations: (2007)LCN/2268(CA)