Court name
Supreme Court
Case number
CIVIL CASE 162 of 1969

Kamara v Umarco Ltd (CIVIL CASE 162 of 1969) [1970] SLSC 3 (08 April 1970);

Law report citations
1970-1971 ALR SL 38
Media neutral citation
[1970] SLSC 3
Case summary:

Tort-damages-measure of damages-personal injuries-shortening of life-loss of predominantly happy life major factor to be con­sidered not social or financial position-The costs of this action was award to the plaintiff.

Coram
Harding, J

KAMARA v. UMARCO LIMITED

Supreme Court (Rowland Harding, J.): April 8th, 1970
(Civil Case No. 162/69)

  1. Tort—damages—measure of damages—personal injuries—shortening of life—loss of predominantly happy life major factor to be con­sidered, not social or financial position—court will avoid extravagant awards: Injury which shortens expectation of life can be compensated for in damages, but such damages are not calculated on the basis either of a statistical or actuarial test, or the length of life that is lost, but on the loss of a predominantly happy life, and in assessing this the age of the injured person may be relevant and also whether or not he has a wife and family but his social or financial position may not be considered since happiness does not depend on wealth; in view of the difficulty of measuring such loss in monetary terms with any degree of accuracy the court will not make extravagant awards (page 41, line 20—page 42, line 17).
  2. Tort—negligence—damages—measure of damages—shortening of life —loss of predominantly happy life major factor to be considered, not social or financial position—court will avoid extravagant awards: See [1] above.

The plaintiff brought an action against the defendants in the Supreme Court to recover damages for personal injuries.

He was employed as a labourer by the defendant company on board one of their motor vessels, and was involved in an accident due to the negligence of the defendants in which he sustained severe injuries to his right hand. He brought an action in the Supreme Court claiming, inter alia, as special damage, loss of earnings, and as general damages, damages for pain and suffering, shortened expectation of life, and loss of ability to earn a living as a labourer.

Cases referred to:

  1. Benham v. Gambling, [1941] A.C. 157; [1941] 1 All E.R. 7, dictum of Viscount Simon, L.C. applied.
  2. Flint v. Lovell, [1935] 1 K.R. 354; (1935), 152 L.T. 23.1, applied.
  3. Rose v. Ford, [1937] A.C. 826; [1937] 3 All E.R. 359, applied.

Gelaga-King for the plaintiff; Barlatt for the defendant.

ROWLAND HARDING, J.:

The plaintiff’s writ of summons issued on May 7th, 1969 was served on the defendants, who entered appearance on July 12th, 1969. The statement of claim was delivered and filed on October 4th, 1969.

 

S.C.

An interlocutory judgment was signed in default of defence on October 15th, 1969 for damages to be assessed. On December 5th, 1969 the plaintiff moved this court to fix a date for assessing the damages. On December 22nd, 1969 the hearing of evidence for assessing the damages commenced and lasted four days.                                                                                                               5

The plaintiff in evidence said that he was employed by the defendants on April 7th, 1968 to work aboard their motor vessel “Arolia” from Freetown to the coast and back. On May 18th, 1969, whilst working a lifting machine with other workmen one of the logs fell from the machine, hitting his right hand; he fell and was bleeding 10 from the cut in his hand. The chief officer dressed the hand. On arrival at Abidjan he was put ashore and admitted to hospital for one and a half months. He was brought to Freetown on the vessel “Baden” and admitted to Connaught Hospital. The injury to his hand was and is still painful, he still feels severe pains from the hand up to                                                                                                             15

the back of the right side of his neck. He was treated by Dr. Kothari and discharged on November 22nd, 1968. The next day he had a fall and was readmitted to hospital and treated by Dr. Stuart. After his discharge he was examined by Dr. Roxy Harris, who gave a report which is Exhibit A. Although he was told that he is now fit and 20 ready for work, he could not work because of the muscular pains, and the state of his hand. He was earning 85 cents per day, and claims his earnings. He claims Le7.50 for the clothes he had on when he received his injuries, which were spoilt. He claims Le20.00 for extra nourishment prescribed by Dr. Kothari. He claims general damages, 25 pain and suffering, shortened expectation of life, and incapability to earn a living as a labourer. He said he was 30 years of age and he could neither read nor write. He does not know when he was born. Answering Mr. Barlatt in cross-examination, he admitted receiving Le2.61 per week whilst in hospital and could not confirm or deny 30 receiving Le91.16 from the defendants since his return to Freetown.

[The learned judge reviewed the evidence and continued: ]

After hearing both counsel, I find as a fact that the plaintiff was employed to work on their motor vessel “Arolia” from April 7th, 1968 to the date of her return to Freetown at 85 cents per day; whilst 35 working aboard the “Arolia” the plaintiff was injured on May 18th, 1968 due to the negligence of the defendants, which was admitted by Mr. Barlatt since he allowed judgment to be signed in default of defence, and also that the injury was serious and painful; that the plaintiff had two operations for the injury; that complications set in 40 and he had tetanus; that his right hand is useless to him to do hard work as a labourer since he can only lift light things which go into the hand, which has the form of a hook; that there is no possibility of an improvement; and that he was seriously ill for a long time. Dr. Roxy Harris said his injury may shorten his expectation of life, and gave his reasons for coming to that conclusion. I believe him because I consider his explanation reasonable. The plaintiff said he has not sought employment, because of the pains from the hand to the back of his neck, he cannot do the work of a labourer because of the condition of his hand. I believe him because it is not easy for a cripple to get employment.

I now come to the claim for damages. Firstly, special damage: the plaintiff claims 85 cents per day from the date of contract. Neither the plaintiff nor his counsel gave the period for which earnings or wages is claimed. Mr. Gelaga-King for the plaintiff says from the date of injury to the date of judgment. Mr. Barlatt for the defendants says from the date of injury to the date of trial, not judgment. Mr. Barlatt does not realise that he is saying the same thing as Mr. Gelaga- King. The date of trial means the date judgment was given, since there cannot be a trial unless there is a judgment.

I disagree with both counsel; they overlook the fact that there is a contract under which the plaintiff was employed. The contract must be looked at to determine the period for his wages.

[The learned judge reviewed the evidence as to the terms of the contract, and continued: ]

The plaintiff is entitled to wages or earnings from the date he joined the “Arolia” to the date he returned, which is from April 7th, 1968 to June 16th, 1968 at 85 cents per day, which is 71 days at 85 cents per day, total Le60.35.

Answering Mr. Barlatt’s cross-examination, the plaintiff said that since his return to Freetown he had received a weekly payment of Le2.61 up to date of his discharge from hospital. Again the plaintiff, answering Mr. Barlatt, said he could not admit or deny that he received Le91.16 on account. Mr. Barlatt never claimed any amount from the plaintiff, even though the plaintiff admitted receiving Le2.60 per week. Whether these weekly payments were for hospital expenses I do not know, I cannot speculate, and as there is no claim against the plaintiff, I cannot take either into account and set off against the plaintiff. I therefore award the plaintiff Le60.35 as wages or earnings due to him.

The plaintiff claims Le7.50 for his clothing, which was spoilt when he had his injury. Mr. Barlatt did not disprove it or deny it. I

therefore award the plaintiff Le7.50. He also claims Le20.00 expended for extra nourishment as prescribed by Dr. Kothari. Again this was not denied or disproved. I therefore award him Le.20.00.

Secondly, general damages:

  1. Pain and suffering      5

The plaintiff says he was and is still feeling severe pains from his

hand up to the back of his neck. Dr. Kothari said he still has stiffness of the muscles of the body. The injury is serious and crippling, and he was seriously ill for a long time. He had two operations, complications set in, and he had tetanus which is a painful muscular 10 ailment. I believe that the plaintiff suffered for a long time and his injury was painful. I award him Le500.00.

  1. Shortened expectation of life

Dr. Roxy Harris, a surgeon specialist, said his injury may or may

not affect his expectation of life, but if he were to take out a life 15 insurance policy, and the history of his injury and state of health were known, he may find his premium increased, because the risk of his not having the normal expectation of life is greater. I believe him and come to the conclusion that his expectation of life is shortened.

In Flint v. Lovell (2) and Rose v. Ford (3) it was decided that an 20 injury which shortens the injured’s expectation of life gives a cause of action in damages. The age of the injured may in some cases be a relevant factor. The plaintiff in evidence said he is 30 years of age, he cannot read nor write and does not know when he was born.

Mr. Barlatt in cross-examination did not ask him how he came to 25 know his age. I have no reason to disbelieve him, he might have been told by someone in a position to know. The thing to value is not length of days, but the prospect of a predominantly happy life. Mr. Gelaga-King in evidence-in-chief did not ask the plaintiff whether he had a wife or a family, an answer which would have helped the                                                                                                             30

court to determine whether the plaintiff had a happy life or not. Mr. Barlatt on the other side was not helpful, for when he said in his address that he could not presume to know the plaintiff s age, he over­looked the fact that the plaintiff in evidence gave his age as 30 years.

Mr. Barlatt further said that to assess the average span of life of 35 certain persons in certain areas, evidence must be given by an actuary.

Viscount Simon in Benham v. Gambling (1) said ([1941] A.C. at 165; [1941] 1 All E.R. at 12)—“I am of opinion that the right conclusion is not to be reached by applying what may be called the statistical or actuarial test.” Since what is to be compensated is the loss of a                                                                                                             40

predominantly happy life, it is to be remembered that if the injured

is a young person the future is uncertain, but in the case of a person with settled prospects, the future is more definite. In assessing the compensation in money, social position is not a factor. Happiness does not depend on wealth, a poor man may be happy although not rich, and a rich man with wealth may not be happy. In assessing the compensation for the loss of a predominantly happy life Benham v. Gambling sets a lower standard of measurement than previously applied for loss of expectation of life, which is said to be incapable of measurement in currency with any approach to accuracy, and extravagance must be avoided. Taking everything into consideration, the plaintiff’s prospect of living a happy life is very dim, since the state of his health and the injury which left his right hand useless with no prospect of an improvement has rendered him incapable of earning a living as a labourer, and it is improbable that he will be able to get any employment since he is a cripple. The chance of him having a future happy life is very poor and I award him Le400.00, which I consider reasonable compensation.

  1. General damages

The plaintiff cannot earn a living as a labourer, which was his means of livelihood, with the muscular pains which he still complains of and for which he has been receiving treatment for a long time. I ask myself the question, what sort of work can he do for a living? He is 30 years of age and if he lives to 50 or 60 years of age what will he live on? If he dies within a year there will be no need to provide for him. Since the award is to be made once and for all I award him Le600.00 as general damages.

There will be judgment for the plaintiff. The order of the court is that the defendants pay the plaintiff the following awards:

Special damage.

Le. cts.

1. Plaintiff’s wages, April 7th to June 16th, 1968,

 

71 days at 85 cents per day

60.35

2. Clothing

7.50

3. Extra nourishment

20.00

General damages.

 

4. Shortened expectation of life

400.00

5. Pain and suffering            

500.00

6. General damages 

600.00

 

Total 1587.85

 

The costs of this action I award to the plaintiff.