Adye v Tida and Another (Civil Appeal No. 15 of 1955.) [1950] EACA 33 (1 January 1950)

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), BACON, Justice of Appeal and DE LESTANG, J. (Kenya)

## JOHN FREDERICK ADYE, Appellant (Original Plaintiff) $\mathbf{v}$

## (1) RUGNATH JERAM TRANSPORTERS LTD., (2) KARSAN TIDA, Respondents (Original Defendants)

## Civil Appeal No. 15 of 1955.

(Appeal from the decision of H. M. Supreme Court of Kenya, Corrie, J.)

Damages—Notional standard—Reassessment by appellate Court.

In awarding the sum of $£1,000$ to the appellant by way of general damages for personal injury, the trial Judge did not consider the notional standard of damages to be gathered from the general level of awards in parallel cases. The award differed widely from such general level.

Held (16-11-55).—Where an award of general damages differs widely from the awards given in comparable cases it may be right for an appellate Court to alter it.

Appeal allowed. Damages increased to £3,000.

Cases referred to: Traill v. Bowker, (1947) 14 E. A. C. A. 20; Kungo v. Clark, (1952) 19 E. A. C. A. 60; Bhanushanker M. Mehta v. Patel & Co., (1954) 21 E. A. C. A. 169; Saint v. Hogan, (1953) 20 E. A. C. A. 85.

Salter, Q. C., and Mackie Robertson for appellant.

Kean for respondents.

JUDGMENT.—This is an appeal from an award of £1,000 general damages awarded to the appellant by a Judge of the Supreme Court of Kenya. The appellant's action arose out of a collision between his car and the first respondent's lorry: the question of the respondents' liability is not now in issue nor is the award of special damages. But the appellant says that the amount awarded as general damages is too small.

The principles which this Court will apply in such an appeal are well settled: we need only refer to the decisions in *Traill v. Bowker*, (1947) 14 E. A. C. A. 20 and Kungo v. Clark, (1952) 19 E. A. C. A. 60. In the instant case the appellant contends that the award was so very small as to make it an entirely erroneous estimate.

The principal injury suffered by the appellant was an extremely severe concussion described by the doctor as the most severe he had ever come across in Kenya which had not resulted in death. He lay unconscious for nearly seven weeks with intervals of maniacal violence and for some time his life was in danger. He also suffered severe physical injuries including eight fractures. He has made, according to the evidence, a remarkably good recovery, though not a complete one, both from the brain injury and from the other bodily injuries.

In Bhanushanker M. Mehta v. C. L. Patel & Co., 21 E. A. C. A. 169, this Court gave its approval to attempts to relate the award of general damages to some notional standard to be gathered from the general level of such awards in parallel cases; and added: "If an award departs widely from the amount which has in

the past habitually been given in similar cases, it may be right for an appellate Court to alter it". In that case the Court went on to make a comparison of awards in comparable cases and to increase the damages given.

We have been referred to a number of cases decided in this Court and in England, and counsel have taken us carefully through these and the relevant evidence in this case. No two cases can ever be exactly alike, but the case which most resembles the present one is Saint v. Hogan, (1953) 20 E. A. C. A. 85, though it is clear that Mr. Hogan's injuries were substantially more severe than those suffered by this appellant.

Our conclusion from this review is that the award in the instant case does so manifestly depart from the awards given in comparable cases as to justify interference by this Court, especially as there is no indication in the judgment that the learned trial Judge did consider the "notional standard" applicable in these cases. $\sim$

We have come to the conclusion that the proper award in the instant case would be £3,000. In arriving at this figure we have not attributed much weight to the appellant's statement that "He felt as though he had lost ten years of life". We regard this as amounting to no more than an honest expression of opinion that he was not the man he had been, a statement which was in keeping with the rest of the evidence.

The appeal is therefore allowed: the award of Sh. 20,000 general damages is set aside and an award of Sh. 60,000 substituted. The respondents must pay the costs of this appeal. $\bullet$