Singh v Singh (C.A. 27/1932.) [1932] EACA 10 (1 January 1932)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JACOB BARTH, C. J. (Kenya), LAW, Acting C. J. (Uganda) and THOMAS, J. (Kenya).

THAKAR SINGH (Appellant) (Original Plaintiff)

SUNDER SINGH (Respondent) (Original Defendant). C. A. $27/1932$ .

Measure of damages.

$\sim$ 1

$Held$ (31-12-32): ---Where a Court has not assessed damages in respectof all the heads in respect of which damages have been claimed the case must be sent back for the omission to be rectified.

Assessment of a perfect compensation being impossible the. Court must take a reasonable view and give what it considers. in all the circumstances a fair compensation.

Schwartze for Appellant.

Mangat for Respondent.

The appellant (plaintiff) sued the respondent (defendant) for damages in respect of injury caused to him by the defendant's. discharging two barrels of a shotgun at him at close range, thereby causing bodily injury the details of which were set forth in the plaint. The trial Judge, after hearing evidence, assessed such damages at Sh. 2,000 for the personal injuries, Sh. 450 damages in respect of loss of profits in appellant's business, and Sh. 238. for hospital and operation fees, together with the taxed costs of the suit.

Dissatisfied with the award of damages the appellant brought. this appeal on the grounds (1) that the damages awarded were inadequate; (2) that the learned trial Judge erred in his assessment of the appellant's earning capacity in his business; and (3) that having found definite facts as to the permanent impairment of the appellant's physical powers the damages were insufficient.

Schwartze.—The damages awarded only cover a period of a year and a few days, assuming appellant's earning capacity was-£90 per annum. Phillips v. London & South Western Railway Co. (1879) 5 Q. B. D. 78; Johnston v. Great Western Railway Co. $(1904)$ 2 Q. B. D. 250.

He summarized the evidence.

*Mangat* submitted that the award was sufficient on the facts. Halsbury, Vol. 10, p. 349, para. 645. There must have been substantial wrong or miscarriage of justice before this Court isentitled to interfere. He submitted judgment did not overlook any of the facts in evidence and referred to the medical evidenceof Dr. Trowell.

Schwartze, replying, submitted that Dr. Braimbridge'sevidence had been accepted by the trial Judge.

SIR JACOB BARTH, C. J.—This is an appeal on the ground that the learned trial Judge awarded the appellant an inadequate sum by way of damages.

The facts are that the appellant was shot with a shotgun by his brother, the respondent, who is serving a long term of imprisonment in respect of the offence committed. The appellant in his evidence said that before the shooting he was earning over Sh. 1,000 per month apart from a saw-mill. He, however. produced no proof in support of this general statement by means of books of account or otherwise. The learned trial Judge took his earnings at an arbitrary figure of Sh. 300 per month and. awarded him Sh. 2,000.

There is no doubt that the appellant is to some extent. permanently affected in the use of his right hand through injury to the median nerve. Dr. Trowell's evidence is that there is permanent disablement of the right arm, that the efficiency of the left arm is very slightly impaired, and that for skilled work. of the hands the appellant's efficiency might be slightly limited, but he would probably be able to perform the business of sawmiller, cycle dealer and electrician adequately.

Dr. Braimbridge's evidence is that there will always be someloss of power and sensation in the right hand, but that the appellant could make some use of his right hand to a certain. extent. The ordinary ability of his right hand has been seriously impaired. Dr. Braimbridge would not care to have the appellant as his driver.

It is well-established that the amount found by a jury as damages should not be disturbed on the ground that it is in the opinion of a Court either inadequate or excessive. Coekburn, L. C. J., in Phillips v. South Western Railway Co. (4 Q. B. D. 406). said: $\longrightarrow$

"But we think that a jury cannot be said to take a reasonable view of the case unless they consider and takeinto account all the heads of damage in respect of which a. plaintiff complaining of a personal injury is entitled to compensation. These are the bodily injury sustained; the pain undergone; the effect on the health of the sufferer, according to its degree and its probable duration as likely to betemporary or permanent; the expenses incidental to attempts: to effect a cure, or to lessen the amount of injury; the

pecuniary loss sustained through inability to attend a profession or business as to which, again, the injury may be of a temporary character, or may be such as to incapacitate the party for the remainder of his life. If a jury have taken all these elements of damage into consideration, and have awarded what they deemed to be fair and reasonable compensation under all the circumstances of the case, a Court ought not, unless under very exceptional circumstances, to disturb their verdict. But looking to the figures in the present case, it seems to us that the jury must have omitted to take into account some of the heads of damage which were properly involved in the plaintiff's claim."

It does not appear that in the case now before us the learned trial Judge directed his mind to whether or not any compensation was payable in respect of bodily pain suffered or the pain undergone. It is true that this ground for compensation was not specially referred to in the plaint.

· With regard to the measure of damages the rule laid down by Bett, J., in Rawley v. L. & N. W. Railway (8 Ex. 231) applies. It is that a jury "must not attempt to give damages to the full amount of a perfect compensation for the pecuniary injury, but must take a reasonable view of the case and give what they consider under all the circumstances a fair compensation."

The basis for this rule may be said to arise from the fact that so many incalculable factors interpose to make the assessment of a perfect compensation impossible.

Taking all the facts into consideration I am of opinion that the damages awarded are unreasonably small and that the appeal should be allowed with costs.

LAW, Ag. C. J.—The appellant is aggrieved at the judgment of Mr. Acting Justice Gamble, dated the 27th October, 1932, on the following grounds: -

(a) That the compensation awarded to him is inadequate.

(b) That the arbitrary assessment of his earnings at Sh. 300 per mensem was unsupported by any evidence and unwarranted in view of his uncontradicted evidence as to his earnings as an electrician, cycle dealer and maker of carts.

With regard to the second ground, which I propose first to consider for convenience, it is true that appellant's evidence as to his earnings is uncontradicted, and not even cross-examined to. yet, on the other hand, it is not explained by him in any detail. In effect, he asks the Court to believe that he is making an annual income from those sources of £600. It was open to the learned trial Judge to accept or reject the appellant's evidence in this

connexion. Instead of rejecting it absolutely, which would have been unreasonable, in view of the fact that appellant obviously was earning something from those trades, the learned Judge, who had the opportunity of seeing the appellant and forming an opinion of him and his condition of life, was presumably satisfied that he had exaggerated his earnings, and consequently fixed, as an estimate of his earnings, the sum of Sh. 300 per mensem. The appellant, therefore, cannot now be heard to complain; his figure was not in fact properly proved nor acceptable to the satisfaction of the learned Judge. Regarding the injuries for which general compensation was awarded to appellant, the learned Judge has found as follows:-

"From the evidence of Dr. Braimbridge, which is in the main supported by Dr. Trowell, it is clear that the physical powers of the plaintiff's (i.e., appellant's) right hand are permanently impaired. The thumb and first three fingers of the plaintiff's right hand have lost sensation through permanent damage to the median nerve. There is also evidence that in the left arm there is discomfort though not disability. Evidence has been led to show that plaintiff can still drive a motor lorry and can still change a wheel and ride a bicycle and work a saw. It is possible that he still can do these things, but it is I think, obvious that with most of his right hand devoid of sensation he will do these things less efficiently than he could before he was injured. As Dr. Braimbridge said, he would be unwilling to employ the plaintiff as a motor driver.

Apart from the reduction in the plaintiff's capability in the directions enumerated above it seems clear that the plaintiff must suffer some discomfort if not disability in enjoying the ordinary amenities of life. Taking all these matters into consideration and also the fact that the plaintiff will carry a quantity of shot in his arm for the remainder of his life, I think that a fair assessment of damages to the plaintiff for injuries received would be Sh. 2,000."

Appellant's counsel has referred us to the cases of Phillips v. The London & South Western Railway, 1879, 5 Q. B. D., page 78, and Johnston v. The Great Western Railway, 1904, 2K. B., page 250, as to the principles to be observed when assessing damages in such cases as this one. From those cases, and the other cases therein reviewed, it is clear that what a Court of Appeal has to consider, in effect, is whether matters have or have not been taken into consideration which ought or ought not to have been considered, whether a wrong measure of damages has been applied, and whether a fair compensation has been awarded under the circumstances. Further, that a Court of Appeal has no right to interfere with a verdict as to the amount of damages, unless under very exceptional circumstances, as

where the damages awarded are unreasonably large or anreasonably small. It appears clear that the learned Judge did not address his mind to the question of damages for "pain and suffering" by reason of the injuries inflicted on appellant. In my opinion, therefore, the damages awarded to appellant are unreasonably small and quite inadequate. In the circumstances, I would allow the appeal, with costs here and below, and remit the case to the Supreme Court for the assessment of damages in this respect.

THOMAS, $J.-I$ agree.

ORDER.—The order of the Court is that the appeal be allowed with costs and that the case be remitted to the trial Judge for assessment of damages on the items omitted from his consideration in his judgment.