Francois Dialoo v Frank Bonte (SCA 15 of 1987) [1988] SCCA 5 (19 July 1988)

TN THE COURT OF .i,a)PEAL OF .":71CT71,st•••T.; CIVIL Al r''.7,1. TIC. 15 OE 1987 Fair= Dif. T. JC0 versus "PRITCE7E172 Rsthan for appellant in for respondent JUMOI121_17 OF P. This is an a ppeal by Francis Dialoo against the quantum of damages awarded him arising from a motor vehicle accident. On /AT' msterial day the anpellant was driving a motor vehicle, in which .ore his wife and a minor child, and his vehicle came into collision with a motor vehicle driven by the respondent. -he incident occured on 26th August, 1964.. The appellant and his wife together with the minor child filed-a . stit in the Jus,reme Court for damages for injuries sustained due to the collision. The appellant claimed loss and damages under three haads ( ) Loss and damage owin g to permanent impairment and disability —:is 75,000 Temporary disability Pain and suffering — Eta 25,000 &nal damages — Its 10,000 The wire and child esch claimed damages only for temporary disability and pain, assessed respectively at Rs.50.002 and Rs. 25,000. The Supreme Court (Ahmed, j.) found that the respondent • was solely to blame for the collision, and awarded the appellant a.angle sum of ns.50,000/=, and awarded the wife and child fls.12,000, and Rs./1,000 respectively. Only the appellant is aspealing from that judgment, on quantum. The injuries suffered by the appellant were serious. The apeellant was aced 24 at the material time and was employed as a hcavy vehicle driver. He suffered (5) (4) dislocation of right hip — hip joint wes. Cractured — the fracture has now mended. Loss of 9 central teeth and chiming of a tenth tooth — the teeth are still awaiting replacement Dee p laceration of the lip and chin — marks of injury are still visible. Fractured sternum — thishas now mended. The appellant was hospitalised for 7 weeks and is still attending as an out—patient for his injuries. He has suffered disfiouremont owing to the lip and chin, laceration. The appellant stated that he used to suffer from asthma but that had been cured: however his asthmatic attacks seemed to be returning and according to medical opinion this was possible because of the inhalaLion treatment given to the ap •ellant. As a result of the injury to his right hip the. medical opinion in that he may get arthritis of his right his in the course of the next 10 to 15 years. The injuries had caused him severe pain. He had to use crutches but discontinued using them after 3 months. He can no totier drive heavy vehicles, he is new driving light ones. . His total disability was estimated by the doctor to be of normal working capacity. Hz. Nathan for the appellant has attacked the global sun of .,10,000 awarded as manifestly inadequate. He submitted that the trial judge had alsO failed to sufficiently consider the psychological, and mental effect of these injuries on the appellant. Mr. Karen for the respondent contended that the trial judge had t_m into consideration all the relevant factors and his award. should not be interfered with. /3 • 3 - I think, as a rule, an appeal court would be disinclined to disturb en award of damages made by a trial judge unless the court is satisfied tint the trial judge had acted on some wrong principle of law, or that the sum. awarded is manifestly so high or low as to amount to an erroneous estimate of the damage suffered by the plaintiff, see Flint v. Lovoll (1935) 1K. B, 354. In this cose have carefully considered the injuries suffered by the appellant and my reaction to the total sum awarded is that it iG:Thr too low, an4 would indicate that the trial judge had made an entirely erroneous estimate of the damage suffered by the appellant. I take into consideration the disfurg ement suffered., the likelih p od of an arthritis attack on his right hip and. the possible re—activation of his asthmatic attack. It is true that the trial judge had thee factors in mind, but I think he did not give them sufficient weight. • I would increase the damages awarded to R5.50,000 under the three heads as follows: loss and damage due to permanent disability and impairment —. 25,000 temporary disability pain and suffering — 15,000 (c) moral damages 10,000 .2p,poc.= The appellant has been successful in his appeal and he will have 1*2 costs of the appeal. Do te d at this day of 1900. ktus:-c-P% President. IN THE SEYCHELLES COURT OF APPEAL Francois Dialoo v/s Frank Bonte Appellant Respondent Civil Appeal No.15 pf 1987 Judgment of Goburdhun J. A The appellant along with two others brought an action before the Supreme, Court claiming damages from the respondent for loss, pain and suffering sustained by them in a roadcaccident in which the motor-vehicles of the appellant and the respondent were involved. The learned trial judge found the respondent liable and awarded the appellant R30,000 as damages. The appeal is against quantum only. In assessing damages the main factors to be taken into consideration are age, the injuries sustained, pain and suffering endured and diminution in the future earning capacity of the plaintiff. The main injuries sustained by the appellant were: Dislocation of the right hip with acetabular fracture. Loss of nine central teeth and chipping of a tenth. A deep laceration of the lip and chin. Fractured sternum. The medical report reads as follows:"He required a leg manipulation 27/8/85 when it was noted that the hip was unstable and he was treated with traction to his right leg. He suffered and post operative attack of asthma and chest infection, possibly due to inhalation. Four tooth roots were removed by Mr Watt - Dental Surgeon on 17/8/85. On 1/10/85 he had a major operation by Dr Coste to stabilize his right hip.. By12/10/85 his pperation wound had healed and he was /z - 2 - discharged from hospital." "For the future he may get arthritis of his right hip in 10-15 years time and taking all these factors into account I would estimate his total disability to be in the region of 15% of normal working capacity." = The Appellant is 24. He stayed 7 weeks in hospital. He has scars on his chin, leg and right hip. His facial appearance has changed as a result of the injuries sustained by him. A piece of metal had to be introduced in his body. The injuries sustained by the appellant were serious and he must have experienced considerable pain during the time he was under treatment in hospital. Taking into consideration all the facts of the case I find the global/ sum awarded to the appellant to be manifestly inadequate. I consider a more realistic assessment of the global damages suffered by the appellant would be R50,000. I accordingly allow the appeal and amend the judgment of the trial judge by deleting the figures R30,000 and R46,000 appearing therein and substituting them by the figures Rs50,000 and R66,000 respectively. The respondent to pay the costs of this appeal. Justice of Appeal 4/ € 4,-/ <-7-- ( 9 iY7F Supreme Court Victoria June 1988 • IN THE SUPREME COURT OF SEYCHELLES Civil AEpeal No. 15 of 1987 Francois DIALOO v. Frank BONTE I have read the judgment of my brother Judges and I agree that the appeal should be allowed. The Appellant should receive Rs 50,000 and Rs 66,000 instead of Rs 30,000 and Rs 46,000. The Respondent shall pay the costs of this appeal. ALef4((-7. /1( s'e/t-ry /4( 9e av cit.c:6(1 kl14,A ft/ -q-.)