Matric (W.A.) Limited V. Edwin Opara (2009)
LawGlobal-Hub Lead Judgment Report
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
This is an appeal against the judgment of the High Court of Rivers State, Isiokpo Judicial Division delivered on 21/3/95 allowing the plaintiff/respondent’s claims against the 1st defendant/appellant for damages for negligence and costs. Being dissatisfied with the judgment the appellant filed a notice of appeal dated 25/4/95 containing six grounds of appeal. Pursuant to a motion on notice filed on 1/12/97 and granted on 28/10/98, the appellant filed four additional grounds of appeal.
The parties duly filed and exchanged their respective briefs of argument in compliance with the rules of this court. The appellant’s brief is dated and filed on 28/12/98. A reply brief dated and filed on 22/9/2000 was deemed filed on 16/1/01. The respondent’s brief dated 6/4/2000 was deemed filed on 29/6/2000.
on 25/5/09 when we heard this appeal, Mr. N.E. Ofoegbu, learned counsel for the appellant, applied by motion on notice that the Nigeria Airports Authority, described as 2nd defendant in the notice of appeal and other processes in this matter be struck out, as it is not a party to the appeal. The application was granted accordingly. Thereafter, Mr. Ofoegbu adopted both briefs filed by the appellant and urged us to allow the appeal’ He informed the court that ground 4 of the notice of appeal has been abandoned. Mr. A. I. Nwachukwu, learned counsel for the respondent adopted the respondent’s brief. He informed the court that the respondent adopted the issues for determination as formulated by the appellant and concedes issue no. 2. He urged us to dismiss the appeal and vary the order of the rower court to the extent admitted.
The facts that gave rise to the appeal are as follows: The respondent was a driver employed by the appellant. The appellant was a company engaged in the clearing and maintenance of the premises where the Port Harcourt International Airport was being constructed. On 21/6/81 in the course of his employment, the respondent was ordered to cut the overgrown grass in the premises. He carried out this duty using a tractor with mowing shears. The respondent alleged that in the course of cutting the grass he fell into a ditch, which he had not noticed because of the tall grass, and the blade of the tractor cut off his leg. His contention was that the appellant was negligent in failing to warn him of any hazards on the premises. He claimed damages for pain and suffering, loss of amenities of life, loss of expectation of life, future loss of earnings, injury to his health and general damages.
The appellant denied the respondent’s claims and alleged that the injury arose as a result of his negligence, recklessness and carelessness. It was alleged that the respondent was performing acrobatic displays with the tractor and this was what caused the accident. It was also the appellant’s case that it took care of all the respondent’s medical expenses including the provision of crutches and an artificial limb and continued to pay his salary. That the respondent abandoned his job and became a motor park tout at Owerri. It also alleged that it had offered compensation of N2, 400.00 to the respondent, as recommended by the Ministry of Labour and Productivity, but the respondent rejected it.
At the trial, the respondent testified on his own behalf and did not call any other witness. The appellant called two witnesses. The issue of the existence of a ditch on the premises and whether the appellant knew or ought to have known of its existence and warned the respondent accordingly was hotly contested. At the conclusion of the trial, learned counsel representing the parties were ordered to file written addresses.
In a considered judgment delivered on 21/3/95 the learned trial Judge entered judgment in favour of the respondent and awarded damages in line with paragraph 7 of his further amended statement of claim as follows:
a. Pain and suffering N 30, 000.00
b. Loss of amenities N200, 000.00
c. Loss of expectation of life N 20, 000.00
d. Future loss of earning N 300, 000.00
e. Injury to health N 30, 000.00
f. General damages N 150, 000.00
TOTAL N 730, 000.00
The respondent was also awarded costs of N2, 000.00. The appellant was dissatisfied with the judgment, hence this appeal. The appellant distilled the following issues for determination in this appeal:
- whether the assessment and award of damages were based on the evidence before the trial court.
- whether the award of damages for pain and suffering, loss of amenities of life, loss of expectation of life, future loss of earnings and injury to health in addition to the award of general damages did not amount to double or multiple compensation.
- whether the plaintiff (respondent) established negligence on the part of the 1st defendant (appellant).
- whether the damages awarded to the plaintiff (respondent) were not exemplary.
As observed earlier in this judgment, the respondent adopted the issues formulated by the appellant. He also concedes issue no 2 to the effect that the award for various heads of damages in addition to the award of general damages amounts to double compensation. At page 3 of the appellant’s brief it is contended that the award of N150, 000.00 as general damages should be allowed while the awards under the various heads of claim should be set aside. I shall return to this issue later if the need arises’ The live issues for determination in this appeal are therefore issues 1, 3 and 4, which I accordingly re-number as issue s 1,2 and 3. issue 2 calls for a determination as to whether the respondent established a case of negligence against the respondent while issue 1 concerns the award of damages. An award of damages would only arise where the claim for negligence is established. In the circumstances, I intend to consider issue 2 first, followed by issues 1 and 3.
issue 2
Whether the plaintiff (respondent herein) established negligence on the part of the 1stt defendant (appellant herein) Relying on the case of I.I.T.A. Vs Amrani (1994) 3 NWLR (332) 296 at 311, learned counsel for the appellant submitted that in an action in tort for negligence the claimant must establish the following:
- A duty of care on the defendant to the plaintiff;
- Foreseeability that the defendant’s conduct would have inflicted on the plaintiff the kind of damages in the suit;
- Proof that the defendant’s conduct was careless; and
- Existence of a causal connection between the defendant’s carelessness and the damages.
He submitted that DW1, the Managing Director of the appellant testified that the field the respondent was ordered to mow was flat; that the grass was of an average height of 2 or 3 feet; that there were no pits on the field; and that he inspected the field and did not find any dangerous area on it.. He stated that the respondent did not contradict this evidence and failed to establish that there was any dangerous area on the field through photographs or a visit to the locus. He submitted that there was evidence to show that the plaintiff was displaying acrobatics on the field with his back facing the forward movement of the tractor. He submitted that the evidence showed that this was what caused him to fall and injure himself. He argued that in the circumstances the respondent failed to prove negligence against the appellant.
In reply to these submissions, learned counsel for the respondent referred to paragraph 6 (a) (1) and 6 (a) (2) of the further amended statement of claim wherein the respondent pleaded negligence and gave particulars thereof and also pleaded the particulars of damage suffered as a result of the appellant’s act or omission. Learned counsel submitted that by the averment in paragraph 6 of the amended statement of defence, which DW1 adopted under cross examination as pan of his defence’ the appellant admitted negligence when it averred that the 2nd defendant, who awarded the contract to clear the field, did not warn it of the dangerous nature of the premises and it was therefore unable to warn its workers. He also noted that Dw1 was not an eyewitness and was therefore not competent to testify as to what caused the accident.
In a claim for damages for negligence, the claimant must plead and prove that the defendant owed him a duty of care, that if failed to exercise due care and that he suffered damage as a result of the breach of that duty of care. See Ngelari v. Mothercat Ltd, (1999) 13 NWLR (636) 628; Osigwe v. Unipetrol (2005) 5 NWLR (918) 261; Umudje v. Shell Petroleum Co. (Nig) Ltd. (1975) 11 SC 155.
In paragraph 6 (a) 1 & and 6 (2) (b) a (c) of the further amended statement of claim, the respondent pleaded that the appellant failed to warn him either orally or in writing of the dangerous nature of the part of the field assigned to him to cut and that his injury was occasioned by this neglect. He also pleaded the particulars of damage suffered. He led oral evidence in support of his pleading. The appellant denied these averments in paragraphs 5 and 6 of its amended statement of defence wherein it averred that the respondent sustained his injury because he was displaying acrobatics with the tractor. It also contended, without conceding that if there were indeed any pits on the field, the 2nd defendant (not a party to this appeal) who awarded it the contract to maintain the field ought to have warned it so that it would have in turn warned its workers.
During his evidence in chief, at page 75 lines 22 – 33 and page 76 fines 10 -14, DW1 testified thus:
“The field we were maintaining is a grass field full of grasses. The height of the grass is on the average 2 feet or 3 feet. The grass grows to the side and the water flows to the drains.
The field is a flat field just like a football field. Before the workers were taken to the field, I had an opportunity to examine the site.
…The plaintiff did not fall into a pit and there were no pits on the field. The second defendant did not show me any dangerous area on the field. Besides this, I checked and found that there are no dangerous areas on the field.”
However under cross-examination at page 78 lines 14 and 15 of the record, he stated:
“I did not walk around the whole one quarter of the area that was allotted to me.”
Having admitted that he did not inspect the entire area allotted to him’ the respondent’s evidence that there was a ditch in the field and that the appellant failed to warn him of its existence was uncontroverted. Furthermore, DW1 admitted that he was not at the scene when the accident happened. At page 75 of the record he stated that he was in the office when one of his workers came to inform him of the incident. He confirmed this under cross-examination at page 78 of the record. His evidence that the accident occurred as a result of acrobatics being displayed by the respondent is therefore hearsay and inadmissible. See section 77 of the Evidence Act. After a careful consideration of the evidence before him, the learned trial Judge held at page 114 lines 24 – 32:
“As I have found as a fact that there is a drain or ditch or pit in the premises, it is therefore an admission that the 1st defendant [appellant herein] owes a duty to the plaintiff to warn him of the dangers in the premises. The 1st defendant failed to do that and therefore there is a breach of that duty of care. Since there is no evidence before this court that the plaintiff was careless or negligent in the performance of his duty, I shall hold that the 1st defendant faired to take reasonable care and that resulted in the damage to the plaintiff.”
This finding is consistent with the evidence before the court. There is no basis for this court to interfere with it. This issue is accordingly resolved against the appellant.
Issue 1
whether the assessment and award of damages were based on the evidence before the trial court.
In support of this issue, learned counsel for the appellant submitted that the decision of a court must be based on evidence before it and that the failure of a court to restrict itself thereto would lead to miscarriage of justice. He relied on. Kalio v. Daniel-Kalio (1975) 2 SC 15; Enwere v. C.O.P (1993) 6 NWLR (299) 333 at 341; Nwankwo v. IGP 5 ENLR 89.
He submitted that in his assessment of the award of damages, the learned trial Judge relied heavily on Exhibit A, the medical certificate, which can be found at page 120 of the records. He noted that the said exhibit was tendered on 2/3/92 before Hon. Justice V.M. Okor, before whom the trial initially commenced. He submitted that the trial that culminated in the present appeal commenced de novo before Hon. Justice F.K.C. peters-Amain and that the said exhibit was not re-tendered before him. He submitted that it was in Exhibit A, which was not before the learned trial Judge that the respondent was alleged to have suffered 75% disability. He referred to page 116 lines 12 – 19 of the record where the learned trial Judge held that the facts contained in Exhibit A regarding the extent of the respondent’s injury were unchallenged and uncontrovefted and therefore deemed proved. He submitted that Exhibit A was the basis for the award of damages for pain and suffering and loss of expectation of life. He submitted further that the respondent did not lead any evidence to support his pleading that he was 22 years old. He argued that there was no basis for the award of N200, 000.00 as damages for loss of expectation of life. He submitted that an averment in pleadings does not constitute evidence and cannot be construed as such. He relied on: Akanmu v. Adigun (1993) 7 NWLR (304) 218 at 231; Akinfosile vs Ajose (1960) SCNLR 447 at 453: Nigerian National Supply Co. Ltd. Vs Agricor Inc. of U.S.A. (1994) 3 NWLR (332) 329 at 347.
Learned counsel for the appellant further contended that the respondent did not ask for the various heads of damages in the course of his oral testimony and that the said claims were therefore deemed abandoned. He submitted that in the consideration of an award of damages in personal injury cases, particularly in respect of loss of earnings and loss of expectation of life, the court takes the following factors into account:
a. Whether the plaintiff’s life expectancy had been shortened by the accident;
b. The degree of loss of bodily capabilities;
c. The possibility of the plaintiff remaining totally unemployed as a result of the injury;
d. The average earnings of the plaintiff or the average earnings of a person in similar employment;
e. The plaintiffs future earnings after the deduction of tax and contribution to social security trust fund.
He relied on: Olopade v. Komolafe (1978) 1 LRN 303 at 306; Ediagbonya v. Dumez (Nig.) Ltd. (1986) 3 NWLR (31) 753 at 762. He submitted that no evidence was led to establish any of these factors. He contended that the awards for loss of expectation of life and loss of earnings were unjustified. Relying on the cases of: Ejisun v. Ajao (1975) NMLR 4 at 7; Ediagbonya v. Dumez (Nig.) Ltd. (supra) at 76; and the book, Kemp & Kemp, The Quantum of Damages Vol. 1 (special edition) pages 1004 – 1005, he submitted that in assessing what is fair and reasonable as general damages, the court would consider “previous awards made, by judges in comparable cases in the same jurisdiction or in a neighbouring locality where similar social, economic and industrial conditions existed.” He submitted that none of these factors was considered in the award of N150, 000.00 as general damages.
In reply to this issue, learned counsel for the respondent submitted that the appellant did not join issues with the respondent on his claims under the various heads of damages. He submitted that by paragraphs 11-13 of the appellant’s further amended statement of claim, the appellant conceded that the respondent was entitled to some monetary compensation. He contended that failure to join issue with the respondent or to cross-examine him in respect of the various heads of claim is tantamount to admission of the said claims. He relied on: strabag construction (Nig.) Ltd. vs Ogarekpe (1999) 1 NWLR (170) 733 at 753.
He stated that the respondent gave evidence of how he lost his leg, the pain and suffering he endured as a result, his inability to drive, the fact that the girl he intended to marry deserted him and the fact that he could no longer participate in sports as he did before his injury. While conceding that Exhibit A was not tendered in the proceedings that led to this appeal, he submitted that the learned trial Judge, in his assessment of damages, was guided by case law and books and did not rely on Exhibit A. He referred to page 116 lines 15 – 20 of the record. He submitted that the reference to Exhibit A was made obiter and did not influence the award.
On the award of N200, 000.00 for loss of expectation of life he referred to paragraph 6 of the further amended statement of claim where it was pleaded that the respondent was 22 years old at the time of the incident. He contended that the appellant did not rebut the averment or challenge it in any way. He submitted that unchallenged evidence requires no further proof. He referred to: Nwogo Vs Njoku (1990) 3 NWLR (140) 570; ogualaji Vs A.G. Rivers state (1997)5 SCNJ 240.
He conceded that averments in pleadings do not constitute evidence but argued that it is only when issues are joined on the pleadings in respect of an issue that the facts must be specifically proved.
He submitted that it is not in dispute that the respondent lost his leg in the accident and maintained that the disability is therefore established.
He argued that the only basis upon which the appellant could challenge the award was the adequacy, excessiveness or objectivity thereof. He submitted that the learned trial Judge had shown that he was guided by awards made in similar cases. He however conceded that the award of N150, 000.00 as general damages under the various sub-heads is erroneous and that the appeal in respect of that award ought to be allowed.
In its reply brief the appellant argued that it did in fact join issue with the respondent on his claims for damages. He referred to paragraph 16 of its amended statement of defence. He submitted that in any event, in law, damages are always in issue. He referred to: A. Obi-Okoye, Essays on Civil Proceedings Vol. 1 pages 269 – 270 article 231 and Nigerian Produce Marketing Board Vs A.O. Adewunmi (1972) 11 SC 111 at 124 – 125. He submitted that the respondent was bound to establish his entitlement to the various sub-heads of damages by evidence, which he failed to do. He referred to: Strabag Construction (Nig.) Ltd. Vs Ogarekpe (supra) at 752 E. He submitted that the decided cases and books relied upon by the learned trial Judge in the assessment of damages, as contended by learned counsel for the respondent, are not substitutes for evidence.
It must be stated at the outset that an appellate court would not readily interfere with the finding of a trial court on an award of damages unless it is satisfied that the trial Judge acted on a wrong principle of law, or that the amount awarded is too high or so low as to make it an entirely erroneous estimate of the damages to which the claimant is entitled. see: Ediagbonya Vs Dumez (Nig.) Ltd.(1986) 3 NWLR (31) 753 at 761 H: Chukwu Osondu Co. Ltd. Vs Akhigbe (1999) 7 SCNJ 1 at 23: Allied Bank Vs Akubueze (1997) 6 SCNJ 116 at 142.
In personal injury cases, two main factors are relevant in determining an award of damages. They are:
(a)the financial loss resulting from the injury; and
(b)the personal injury involving not only pain and suffering but also the loss of the pleasures of life.
See: Ediagbonya Vs Dumez (Nig,) Ltd. (supra) at 760 C.
It is a settled principle that money actually spent before the time of hearing a claim for damages for injuries suffered comes under special damages. However, any prospective expenditure is money that has not yet crystallised in actual disbursement. It would not qualify as special damages but may be claimed as part of general damages. See: Ifeanyi Chukwu osondu co. Ltd. Vs Akhigbe (supra) at 15; Strabag Construction (Nig.) Ltd. Vs Ogarekpe (1991) 1 NWLR (170) 733 at 735. A claim for loss of amenities or loss of expectation of life also falls under a claim for general damages. While claims under these heads are often itemised, either by the claimant in his pleadings or by the trial Judge in the course of assessing damages, there is no legal requirement to do so. Generally damages are assessed as a lump sum and once and for all, not only for loss accruing before the trial but also in respect of prospective loss. The court has a duty to award as perfect a sum as is within its power based on established facts. The factors to be taken into account are the different aspects of the consequences of the injury complained of. See: Ediagbonya Vs Dumez (Nig.) Ltd. (supra) at 762 D – E & H. It follows therefore that the items of claims set out in paragraph 25 (a) (e) of the further amended statement of claim collectively constitute a claim for general damages. Nonetheless in assessing the amount of damages, the court is only entitled to rely on the elements established before him by credible and admissible evidence See: Ediagbonya Vs Dumez (Nig.) Ltd. (supra) at 764 A-B.
In the instant case the court below found that the respondent had established the fact of his injury, and that it occurred as a result of the negligence of the appellant. In consequence thereof, the learned trial Judge at pages 117 – 1 18 of the record granted the respondent’s heads of claims thus:
a. Pain and suffering N 30, 000.00
b. Loss of amenities N200, 000.00
c. Loss of expectation of life N 20, 000.00
d. Future loss of earning N300, 000.00
e. Injury to health N 30, 000.00
f. General damages N 150, 000.00
TOTAL N730. 000.00
It is the contention of learned counsel for the appellant that the awards for pain and suffering and loss of amenities of life were based on Exhibit A, a medical report not tendered in the proceedings that gave rise to the appeal. A careful study of the entire record of proceedings confirms that the said Exhibit A was not tendered when the trial commenced de novo and yet it was a persuasive consideration in making the awards. However the crucial factor to consider in the circumstances is whether there was any material outside Exhibit A upon which the learned trial Judge could have based the awards. In other words, is the production of a medical certificate the only means of assessing damages for pain and suffering and loss of amenities of life in the circumstances of this case? In Ediagbonya Vs Dumez (Nig.) Ltd. (supra) at 762 H, the Supreme Court held:
“In respect of assessment for personal loss, which includes pain and suffering, and the loss or diminution of the enjoyment of life, the term “personal loss” denotes every kind of harm and disadvantage which flows from a physical injury other than loss of money or property. It therefore necessarily includes loss or impairment of the integrity of the body pain and suffering: both physical and mental loss of the pleasures of life: actual shortening of life and mere discomfort or inconvenience.” (Underlining mine)
In strabag construction (Nig.) Ltd. vs Ogarekpe (1999) 1 NWLR (170) 733, the plaintiff, an electrical technician and some other staff of the defendant were working on a crane at a considerable height when it suddenly shifted and fell. He broke his right hand and severed his armpit and suffered 25% permanent disability as a result. He claimed damages for negligence under various heads including loss of earnings, pain and suffering, loss of capacity for the enjoyment of life and future loss of earnings. The defendant denied liability for negligence. Judgment was however entered in the plaintiff’s favour. The plaintiff was awarded damages under the various heads totalling N34, 000.00. The defendant appealed against the judgment. The appeal was allowed only to the extent that the award of N34, 000.00 was reduced by N2, 000.00, which was the amount awarded for drugs and medical expenses not related to the injury. In considering the factors that should guide the court in assessing damages in personal injury cases, Uwaifo, JCA (as he then was) at pages 753 – 756 F – A (supra), relied on the observation of Sellers, L J in wise vs Kay (1962) 1 ALL ER 257 at 262 where the Honourable Lord Justice stated, inter alia:
“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 of an operation, or nursing 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. … Damages for such injuries, almost invariably assessed by juries, were said to be “at large”, and had to be assessed on a reasonable and fair basis between party and party. There can be no restitution for the loss of a limb or loss of faculty but the law requires adequate compensation to be assessed.”
At page 754 E (supra), His Lordship observed that the decided authorities are to the effect that no principle can be laid down upon which damages for pain and suffering can be awarded by sheer calculation in terms of money. He noted however that awards for pain and suffering are usually generous depending on the extent of the injury and the pain and suffering that accompanied it.
In the instant case, in assessing damages for pain and suffering and loss of amenities, the learned trial Judge, apart from referring to Exhibit A, which was not before him, also referred to the evidence of DW2, Dr. (Mrs.) Martina Ugorji, the wife of DW1 (the Managing Director of the appellant). She testified at pages 81 – 83 of the record to the effect that she is a medical practitioner at Owerri General hospital. She stated that when she was informed of the respondent’s accident she advised that he should be brought to Owerri for better management. She confirmed that he was admitted to the Orthopaedic ward and managed to the best of their ability. She stated that after he recovered she took him to Enugu where an artificial limb was recommended. She stated that he failed to turn up for the physiotherapy sessions that would have enabled him learn to use the artificial limb. She confirmed that his right leg was cut off and that he felt pain.
At page 117 of the record, the learned trial Judge in awarding N200, 000.00 for loss of amenities held:
“The plaintiff both in his further amended statement of claim and evidence-in-chief stated that he was a good sportsman and owing to the injury he cannot participate in such games. He also said he can no longer marry the girlfriend whom he intended to marry that deserted him because of his disability. The plaintiff was 22 years old when his right leg was amputated. He will be deprived throughout his life of all the enjoyments of this world, as he would find it difficult to even see a girl to marry. This evidence was neither challenged nor controverted. It is debilitating for a young man of the plaintiff age to pass through this type of agony which will permanently affect his mental behaviour in life.”
This finding has been challenged on the ground that the respondent did not adduce any evidence to prove his age. In paragraph 6 of the further amended statement of claim, the respondent averred inter alia thus:
- “The plaintiff was taken to a port Harcourt hospital and later at the General Hospital Owerri by the 1st defendant and a report was issued on 3/2/82 in respect of this treatment at Owerri General Hospital. The report will be tendered and founded upon.
The plaintiff stayed about six months in the hospital. The defendant is hereby given notice to produce this Doctor’s report at the trial, The plaintiff who is 22 years has been completely incapacitated and his life expectancy shorted; permanently disfigured and cannot engage in any active and manual job and cannot find a comparable job….”
In paragraph 9 of the amended statement of defence the pleaded thus:
- “In answer to paragraph 6 of the further amended statement of claim the 1st defendant shall at the trial contend that the plaintiff was treated at the expense of the 1st defendant. The 1st defendant equally bought an artificial limb and crutches for the plaintiff, paid a physiotherapist to train him on the use of the artificial limb. But the plaintiff abandoned the use of the artificial limb.
The appellant clearly did not join issues with the respondent on his age. Having failed to challenge the averment, it is deemed admitted and the learned trial Judge was entitled to regard the age of the respondent as proved. see: Honika Sawmill (Nig.) Ltd. vs Hoff (1994 ) 2 SCNJ 86: Adelaja & ors. vs Alade & Anor. (19991 4 SCNJ 225 at 240 lines 11 – 13; Ogunleye v. Oni (1990) 2 NWLR (135) 745. I am of the humble view that the relevant consideration here is the fact that a young man in the prime of his life, and a driver by profession, lost his right leg in the course of his employment with the appellant. The finding of the learned trial Judge that he is permanently disfigured and would not be able to find a comparable job cannot be faulted. It is very unlikely that a man with one leg, or an artificial limb would be employed as a driver. The respondent’s evidence that as a sportsman he was no longer able to participate in the games he used to play and that the girl he intended to marry deserted him because of his injury was uncontroverted and the learned trial Judge was entitled to take these facts into consideration in making the award.
I am therefore of the view that there was sufficient material before the learned trial Judge outside Exhibit A, which he erroneously relied on, to justify the award of N230, 000.00 for pain and suffering and loss of amenities of life.
The appellant also challenged the award of N20, 000.00 for loss of expectation of life and N300, 000.00 for loss of future earnings on the ground that there was no evidence led to sustain them. In respect of the claim for loss of expectation of life, the learned trial Judge at page 117 of the record held:
“It is in evidence that the plaintiff by his injury lost 75% of his bodily capabilities. The plaintiff, as I said earlier was a young boy of 22 years when he sustained the injury and therefore his expectation in life would be totally impaired. Even if he is provided with an artificial limb he cannot be [a] normal man. He cannot in the ordinary word (sic) a complete man to enjoy the basic things in life. The plaintiff is now moving with crutches as I saw physically in court and this situation will persist until he is provided with limb, therefore assess the damage under this head at N20, 000.00.”
As observed earlier, the fact of 75% permanent disability was derived from Exhibit A, which was not before the court. However there was ample evidence before the court, from oral testimony and the respondent’s condition, which could be physically seen, that the respondent was an active young man and a driver by profession who had lost his right leg and was using crutches. In the case of U.B.A. Vs Achoru (1990) 6 NWLR (156) 254, His Lordship Karibi-whyte, JSC relied on the judgment of Lord Morris of Borthy-Gest in H. west and Sons Ltd. & Anor. vs Shephard (1963) 2 ALL 625 at 633 wherein he stated thus:
“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.”
The constant pain and anxiety arising from dealing with such a disfiguring disability every day for the rest of his life would no doubt substantially affect his expectation of life. The appellant has not shown that the award of N20, 000.00 in this regard was unreasonable or too high.
With regard to the claim for loss of future earnings, the learned trial Judge held at page 118 of the record:
“The plaintiff in his evidence stated that he was a driver. This was supported by the defendant. He stated further that as a result of the injury he could no longer drive and it would be difficult to earn a living by his trained profession. The 1st defendant through DW1 and 2 challenged this and said that the plaintiff could drive if he wears artificial limb as further stated that the plaintiff had been a motor park tout. With the greatest respect, this piece of evidence does not challenge the plaintiff’s in any way. No reasonable person will employ a disabled person with either crutches or [artificial] limb as a driver. … The plaintiff was 22 years old when this accident happened and he might retire actively at the age of 60 years. The actual pecuniary loss cannot be fixed but considering the age of the plaintiff a fairly adequate compensation for his future loss of earning is reasonable having considered the risk of future inflation Strabag V Ogarekpe supra 757.”
There is no doubt that the respondent did not testify as to his income at the time of the accident. It is however not in dispute that he was gainfully employed as a driver at the time and that it would be quite unlikely that he could secure such a job again. It must be reiterated that the claims under the various heads are not claims for special damages.
The applicable principles are therefore not the same. In the case of Strabag Construction (Nig.) V Ogarekpe supra the appellant argued that the claim for loss of future earnings ought to have been refused because no evidence was led to support it. In reaching its decision, this court per Uwaifo, JCA (as he then was) at page 759 B -C (supra) referred to the views of Lloyd, L.J. in Foster vs Tyne and Wear County Council (1986) 1 ALL ER 567 at 570 where the learned Lord Justice said:
“In compensating the plaintiff for his present disability the judge had to assess the future risks. Those risks were of two kinds: first he had to consider whether the plaintiff would be more likely to lose his present job on account of disability; second, he had to consider 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.”
In Foster’s case the plaintiff, who was employed by the defendant council as a heavy goods vehicle driver, suffered a serious injury to his ankle when his foot got caught in a fixed ladder at the side of the vehicle while mounting it. He underwent an operation for the insertion of a screw in his ankle to fix the joint. He returned to work after 18 months. He rejected the lighter job he was offered at a reduced wage and insisted on going back to his job as a heavy goods vehicle driver. Uwaifo, JCA (as he then was) at 759 E – G (supra) held thus:
“A more sophisticated worker in the sense that he does a job or is engaged in a profession that can project a future earning in great detail and for a substantial amount may prefer to spell out his loss of earning capacity. A person in the position of the plaintiff may obviously not be able to do so. That does not mean he does not deserve to be compensated by some other method. That is what Foster’s case represents. That is the method the learned judge in this case adopted when he said;
“I am also not unaware that the plaintiff is still employed by the defendant company at a monthly salary of N300.00. But for how long is any one’s guess. It is certain too that if the plaintiff would seek a Job after this case with such a disability on the right hand, his chances of future employment or earnings are slim and minimal and cannot be predicated (predicted?) with certainty because of the non functional disability of the hand.”
I do not think the award should be disturbed.”
In this instance also, having regard to the severity of the respondent’s injury, the appellant has failed to show that the learned trial Judge acted on wrong principles or that the award for future loss of earnings was unreasonable or too high in the circumstances of this case. I am guided by the views expressed by Uwaifo, JCA (as he then was) in Strabag Construction (Nig.) Ltd. Vs Osarekpe (supra) and hold that there is no basis for disturbing the award. This issue must be and is hereby resolved against the appellant.
Issue 3
The final issue for determination in this appeal is whether the damages awarded to the plaintiff/respondent were not exemplary. In support of this issue, learned counsel for the appellant submitted that exemplary damages are awarded to punish the defendant and to deter him from similar reprehensible conduct in the future. He contended that the damages awarded in the instant case were exemplary and that the learned trial Judge failed to take into consideration the fact that the appellant paid all the respondent’s medical bills and offered him the compensation recommended by its insurance company and the Federal Ministry of Labour, which he rejected. On the circumstances in which exemplary damages may be awarded he relied on the books, Nigerian Law of Tort by Gilbert Kodilinye at page 254 and Winfield and Jolowicz on Tort, 11th edition page 593. He also referred to: Garba Vs Lagos City Council (1974) 3 CCHCJ 297 at 309: Rookes Vs Bernard (1964) AG 1129 at 1226 – 1227: Drane Vs Evangelou & Ors. (1978) 1 WLR 455; Dosunmu Vs Lagos City Council (1966) LLR In reply to this issue, learned counsel for the respondent submitted that there is nothing on the face of the record to suggest that the damages were punitive or exemplary. He observed that in awarding damages under the various heads, the learned trial Judge in fact awarded less than the amounts claimed in the further amended statement of claim.
Having carefully read the entire judgment appealed against, I am of the view that there is nothing therein to suggest that the damages awarded were Intended to be punitive. The learned trial Judge in considering each item took into consideration the nature of the respondent’s injury and the immediate and long-term effects othereof on his psyche and his day-to-day existence. Having critically examined his findings and awards in respect thereof in the course of resolving the first issue in this appeal, and finding no reason to disturb them, this issue must be and is hereby resolved against the appellant.
Before concluding this judgment I must return to the issue conceded by the respondent to the effect that the award of N150, 000.00 as general damages in addition to the awards under the other heads of damage amounted to double compensation and should not be allowed to stand. In conceding this point however, learned counsel for the respondent urged us to allow the award of N150, 000.00 and to set aside the awards under the other heads of damage. This is no doubt an ingenious argument having regard to the fact that the claims under the various heads amount to a far higher sum than N150, 000.00. From the judgment it can be seen that the award of N150, 000.00 as general damages was the final award made after the assessment and awards made in respect of the other items. It is this award of N150, 000.00 that amounts to double compensation and ought not to have been made. The award of N150, 000.00 as general damages is accordingly set aside.
In conclusion, the appeal succeeds in part. That part of the judgment of the High court of Rivers state, Isiokpo Judicial Division in Suit No. AHC/50/82 delivered on 21/3/95 awarding the sum of N150 000.00 in favour of the respondent as general damages is hereby set aside. That part of the judgment awarding general damages in favour of the respondent in the aggregate sum of N580, 000.00 is hereby affirmed.
As the appeal succeeds in part, the parties shall bear their respective costs.
Other Citations: (2009)LCN/3380(CA)
