Chiori v Gabbett (C.A. 39/1933.) [1937] EACA 134 (1 January 1937)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J. (Uganda), Ag. P.; LAW, C. J. (Zanzibar) and WEBB, J. (Kenva).

## KAREMI S/O CHIORI (Appellant) (Original Plaintiff) $\overline{v}.$

## G. G. GABBETT (Respondent) (Original Defendant). C. A. $39/1933$ .

Damages for personal injury to a native and for incapacity and personal suffering—Adequacy of compensation—Loss of leg -Basis of assessing compensation-Schedule prepared by Native Affairs Department of compensation based on so many years' salary-Whether trial Judge warranted in forming his own opinion from opinion of an officer of the Native Affairs Department based on the schedule, where that officer is not giving evidence as an expert—Whether, apart from the curious way in which result was arrived at, the damages were unreasonably small—Right of Appeal Court to over-rule verdict of jury as to damages—Whether costs should be on Lower Court or Supreme Court scale.

Held (29-6-34).—That a trial Judge is not warranted in relying merely upon a schedule of compensation prepared by a Government official as to what compensation is reasonable. To do so would be to attach a sort of scientific value to the opinion of such a person because he is presumably interested in the fair treatment of injured natives. A trial Judge is not warranted in forming his opinion upon the strength of another person's opinion. In this case, however, there was nothing to show that the amount of compensation awarded was excessively small, keeping in view the fact that the standard of living of a working man must be largely measured by his earnings.

Held Further.-That, as the amount of damages awarded was within the pecuniary limit of the jurisdiction of a subordinate Court, there was no reason for allowing costs on the Supreme Court<br>scale. *Phillips v. London and S. W. Railway Company*; L. R. (1897) 5 Q. B., page 85 referred to. Appeal dismissed.

Appeal from Supreme Court of Kenya.

Appellant absent.

Written arguments were submitted by Mr. Malik, advocate for the appellant, in which reference was made to the case of Thaker Singh v. Inder Singh (Kenya L. R., Vol. 14, p. 42).

$Modera$ for respondent: $\cdots$ $\cdots$

Modera.—Maliciousness is irrelevant. Halsbury, Vol. 10, p. 350. Court must say it is a wholly unreasonable figure. Johnston v. Great Western Railway Co. (1904), 2 K. B., p. 250. Judge has elected to award Sh. 216. Price v. Glynea and Castle Coal and Brick Co., Ltd., 114 Law Times R., p. 264. As to compensation for pain and suffering total compensation equal to 44 months' salary. As to costs, payment into Court. Why costs on higher scale when we were always willing to pay? Reaney $v$ . Co-operative Wholesale Society, 73, L. J. N. Halsbury Supplement.

ABRAHAMS, C. J. (Uganda), Ag. President.—The respondent. who is a European settler, deliberately fired a shot-gun at the appellant, who is a Kikuyu, and was at the time a locomotive fireman on the Kenya and Uganga Railway. As the result of this act the appellant had to have his leg amputated above the knee. The respondent was sentenced to a term of imprisonment.

The appellant brought an action against the respondent claiming damages for incapacity and for pain and suffering. The respondent admitted liability, but paid Sh. 750 into Court in satisfaction of the claim. Lane, Ag. J., who tried the suit, awarded the above amount to the respondent appropriating Sh. 216 to incapacity, and Sh. 534 to pain and suffering.

The appellant submits that both these sums are inadequate compensation. He states that the learned Acting Judge assessed damages for incapacity on the strength of the evidence of Dr Fisher, Chief Labour Inspector in the Native Affairs Department. This gentleman was called by the respondent and stated that his Department had worked out a schedule of damages to natives based on earning capacity. On this schedule the extent of the disability of the respondent would be 60 per cent; the basis of compensation would be three years' wages, but the amount allowed must not exceed one and a half years' wages. Therefore the amount payable to the appellant would be Sh. 216.

The appellant now objects to this method of assessing his compensation. It appears to me that the learned Judge has formed his opinion upon what would be a fair rate of compensation for this disability upon the opinion of a Government official. This, in my view, is to attach a sort of scientific value to the opinion of such a person because he is presumably interested in the fair treatment of injured natives. No reasons are given in Dr. Fisher's evidence as to why the appellant's disability is rated at 60 per cent, why the compensation is based on three years' wages, and why the maximum awardable should be one and a half years' wages. No doubt, as counsel for the respondent has said, Dr. Fisher was called to show that the respondent in offering the compensation he did was acting in good faith, but that does not warrant a judge in forming his opinion upon the strength of another person's opinion.

Regarding Dr. Fisher's evidence as having some scientific accuracy has led the learned Acting Judge to this somewhat curious decision. He did not think he ought to award more than Sh. 216 as compensation for disability, and it seems to me that he felt (and with some reason) that he ought not to award. as total damages a sum less than the amount of Sh. 750 offered by the respondent. Therefore he awarded Sh. 434 for pain and The result is that pain and suffering has been estisuffering. mated at twice the price of disability.

For all that, looking at the total sum awarded, can it be said the amount is unreasonably small? As was said by James, L. J., in Phillips v. London and S. W. Railway Company, L. R. 5, Q. B., p. 85, judges have no right to over-rule the verdict of a jury as to the amount of damages merely because they take a different view, and think that if they had been the jury they would have given more or would have given less. It may be had I tried the case that when I came to consider disability I might have assessed compensation at a higher figure than did the learned Acting Judge, but then I might have put pain and suffering at a lower figure. At the first glance it would seem that Sh. 750 is a slender sum at which to value a leg, but then the appellant's wages were Sh. 12 per mensem, and the standard of living of a working man must be largely measured by his earnings, and when it is realized that he has been awarded a sum amounting to over five years' wages, the compensation assumes proper proportions. The learned Acting Judge did address his mind to the essential questions of the disability of the appellant, the wages he was earning at the time and the pain and suffering he had undergone, and though he employed a method in one direction which I regard as wrong in principle I cannot say the compensation was unreasonable.

The appellant was awarded costs on the lower Court scale and protests he should have been awarded costs on the Supreme Court scale. I see no reason why this case should not have been brought in the Court which in the result would have had pecuniary jurisdiction, namely the Court of the Resident Magistrate. Nakuru. It has not involved any difficult point of law and the pecuniary limits of the jurisdiction of the lower Court include a sum double the amount of the award in this case.

I would dismiss this appeal with costs.

LAW, C. J. (Zanzibar), and WEBB, J. (Kenya), also delivered. separate judgments concurring in dismissing the appeal.