Traill v Bowker (Civil Appeal No. 10 of 1947) [1947] EACA 5 (1 January 1947)

## **COURT OF APPEAL FOR EASTERN AFRICA**

Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and EDWARDS, C. J. (Uganda) $\rightarrow$

JOY TRAILL. Appellant (Original Plaintiff)

υ.

## HENRY MITFORD BOWKER, Respondent (Original Defendant)

## Civil Appeal No. 10 of 1947

(Appeal from decision of H. M. Supreme Court of Kenya)

Tort—Personal injury—Damages—Appeal against quantum of damages.

The appellant was awarded £500 general damages for personal injuries sustained through the negligence of the respondent. She appealed on the groundthat the damages were inadequate.

Held (5-8-47).—That in an appeal against the quantum of damages the Court of Appeal although if it had tried the case in the first instance it would have awarded a different amount will not interfere with the award of the trial Judge unless it was satisfied that he had acted on a wrong principle or that the amount of damages awarded was so high or so small as to make it an erroneous estimate of the damage to which the appellant was entitled.

Appeal dismissed.

Cases referred to: Owen v. Sykes (1936) 1 K. B. 192; Flint v. Lovell (1935) 1 K. B. 354; Roche v. Yates (1937) Vol. III A. E. R. 442; Chesterton Rural District Council v. Relph Thompson Ltd. (1947) Vol. I A. E. R. 274.

## Shaw for the appellant.

**Christie** for the respondent.

NIHILL, C. J.—This is an appeal against an award of £500 general damages granted to the appellant by the Supreme Court of Kenya in a suit brought by her against the respondent for damages in respect of personal injuries sustained by her on the respondent's land and due to his negligence. The appellant claims that the damages awarded are wholly inadequate compensation for her past suffering or what she may possibly suffer in the future. There is no dispute on the facts which are fully stated in the judgment of the learned trial Judge, nor was the medical evidence called by the appellant contested. On 1st July, 1945, the appellant received a charge of buckshot in her legs (more especially her right one) from a spring gun which the respondent had negligently left primed on his land. As a result the appellant was taken to hospital and later operated on. A number of lead pellets were removed from her right leg but a number still remain. The appellant made a slow and painful recovery and at one time gangrene was. threatened. Dr. Peake, F. R. C. S. (London), who operated on the appellant and under whose care and observation she has since been stated in evidence that he thought she would always suffer from the effects of the injury and that he would expect pain after any kind of exercise. Her knee joint is weak and gives a feeling of insecurity. With regard to the future the witness thought that irritation may again manifest itself and that there is a remote possibility of lead poisoning. He thought it possible that she might find it impossible to be in a cold climate. Before the accident the appellant appears to have been a strong and active woman. She was a good sportswoman and was able to manage her husband's. farm during his absence on war service. There is no doubt that she has been through a most painful and trying experience but fortunately she seems to have made, as far as outward appearances can show, a good recovery. As the learned

trial Judge observed she is able to walk without any pronounced limp and she has been able to play tennis in a local tennis tournament, although she suffered pain in consequence. On the above facts the learned Judge in the Court below came to the conclusion that £500 would be fair and adequate compensation to award her. I say quite frankly that had I, as a trial Judge, had to estimate the damages, I might have arrived at a somewhat higher figure but that is not a ground by itself on which this Court could interfere with the trial Judge's discretion. The principles upon which an appellate Court will interfere are well set out in the case of Owen v. Sykes (1936) 1 K. B. 192 where it was held by the Court of Appeal in England that although if they had tried the case in the first instance they would have probably awarded a smaller sum as damages, yet they would not review the finding of the trial Judge as to the amount of damages, as they were not satisfied that the trial Judge acted upon a wrong principle of law, or that the amount awarded as damages was so high as to make it an entirely. erroneous estimate of the damage to which the plaintiff was entitled. On the authority of that case which followed the decision in *Flint v. Lovell* (1935) 1 K. B. 354 I have to ask myself first whether there is any indication that the learned trial Judge acted on any wrong principle of law and without hesitation I feel bound to answer that question in a sense adverse to the appellant. It is contended in the memo of appeal that the trial Judge failed both to direct himself properly on the medical evidence as to the past sufferings of the appellant or to the possible pain she may suffer hereafter. From the judgment, however, it is clear that the learned trial Judge did address his mind most anxiously to both these factors and if, as he states in his judgment, he felt unable to attach great importance to future possibilities; I am unable to say, that on the evidence of Dr. Peake, this was an unreasonable or unjustifiable conclusion. Neither am I able to come to the conclusion that the learned trial Judge's estimate of the damages was an entirely erroneous one. To establish that I think an appellant must show that the estimate is so tinged with error as to make it incumbent on this Court to interfere and that has certainly not been done in this case. There are many elements which go to make up an estimate of damage, and unless a trial Judge can be clearly shown to have left out of account some material one in his consideration, I do not see how an appellate Court can conclude that his estimate is erroneous. As was said by Scott, L. J. in Owen v. Sykes supra: —

"All those matters are essentially questions of degree, and in my view the question of the amount to be allowed ... is essentially a question of degree. With regard to all these matters the Judge at the trial seems to me necessarily to be in a better position to form an estimate than any Court of Appeal can be."

Counsel for the appellant cited the case of *Roche v. Yates* (1937) Vol. III p. 442 in support of the proposition that an appellate Court should assess damages at the figure it thinks should have been awarded but this case is clearly distinguishable from Flint v. Lovell and Owen v. Sykes supra in that the Court did come to the view that the trial Judge had seriously misdirected himself so that his estimation of the damages had proceeded upon an erroneous basis. That being the case the appellate Court had to take upon itself the burden of assessing the damages and was accordingly free to award the sum that it thought proper. As I have already indicated I am not satisfied that in the case before us that the learned trial Judge acted on a wrong principle of law in forming his estimate and I am accordingly of the opinion that the appeal must be dismissed with costs.

SIR G. GRAHAM PAUL, C. J.—The judgment just read by the learned President so exactly expresses my views that I find it unnecessary to read the judgment which I had written. I content inyself with concurring in the judgment of the learned President.

EDWARDS, C. J.—I agree that the appeal should be dismissed.

I do not think that it can be said that the learned trial Judge failed to give due weight to the medical evidence. The only doubt I have had is whether the sum of £500 awarded is so inadequate as to justify this Court in interfering. I personally feel that, had I been the trial Judge. I might have awarded a larger sum because I think that it is by no means unlikely that the appellant may suffer pain, and even stiffness in her knee in years to come. It is in evidence that even now she cannot flex her right knee completely. While one hopes that one's fears may be groundless common knowledge points to a very real chance of suffering and disability in the knee joint in after life. Nevertheless, in view of the authorities, I do not think that it can be said that the learned trial Judge formed a completely erroneous estimate of damage. It must always be difficult to estimate the appropriate amount of compensation in money value. Unless an appellate Court is satisfied that a decision of a Court of first instance was wrong it should not interfere (per Lord Goddard, Lord Chief Justice, in Chesterton Rural District Council v. Relph Thompson, Ltd. (1947) Vol. I A. E. R. p. 274. I agree that the appeal should be dismissed with costs.