➥ CASE SUMMARY OF:
C & C Construction Company Ltd. & Anor. v. Samuel Tunde Okhai (2003) – SC
by PipAr Chima
Supreme Court – SC.8/1999
➥ JUDGEMENT DELIVERED ON:
Friday, the 12th day of December, 2003
➥ AREA(S) OF LAW
Res ipsa loquitur;
Damages for pain & suffering;
➥ NOTABLE DICTA
⦿ WHEN TESTIMONY OF WITNESS IS EXAGGERATED
To my mind, when the testimony of a witness has reached or attained the height of insipid or impotent exaggerations it should be disregarded as mere petulance and treated with ignominy. – Pats-Acholonu, JSC.
⦿ COURT OF APPEAL CAN ASSESS DAMAGES
As such is the position, there is now no need for this court or the Court of Appeal to look at an issue of damages as if it were a sacred cow reserved for the court of trial. The correct approach ought to be that unless an issue of credibility of witnesses as to damages arises in the proceedings, the appellate court ought, on entering or affirming a judgment in favour of the plaintiff, to assess and award damages to which he is entitled. – Pats-Acholonu, JSC.
⦿ PAIN SUFFERED NEED CANNOT BE ASSESSED BY MEDICAL EVIDENCE
As far as I am aware, there is no known means of medically assessing the intensity or otherwise of the pain a person is going through. When related to injury, medical evidence can only describe the nature of the injury but not the pain that goes with it. The more severe the injury the more likely the severity of the pain. Such pain can merely be imagined by a person who has seen when and how the injury occurred or who sees the nature of the injury later and was told how it happened including the medical doctor who may have treated the victim and noticed the agony he expressed by words or action or through groaning; or to whom the nature of the injury is described and the circumstances in which it occurred. For instance, a person who saw how any person’s limb, e.g. leg, was crushed by a heavy object would literally feel, pathologically, some reflexes which tend to register in him that the victim has undergone severe pain. When told about it he will likely imagine the severity of the pain. But the real nature of the pain can best be experienced or described by the victim. – Uwaifo JSC.
⦿ PAIN AND SUFFERING SHOULD BE AWARDED UNDER GENERAL DAMAGES
Once a plaintiff has successfully shown that he suffered personal injury as a result of a breach of duty owed him by the defendant, the claim for pain and suffering must be considered. No principle can be laid down upon which damages for pain and suffering can be awarded in terms of the quantum. There is, however, no doubt that pain and suffering is a recognized head of award that sounds in general damages. The court must consider what the compensation should be going by the evidence that gives an insight into the intensity of the pain and suffering. The award is usually generous although it should not be excessively high or grossly low. It must be such as reasonably tends to reflect the intensity of the pain and suffering. – Uwaifo JSC.
⦿ APPELLATE COURT CAN MAKE ASSESSMENT OF DAMAGES
Where, however, the trial court made no assessment of damages, an appellate court can make the assessment itself if there exists on the record enough evidence on which assessment can be based. – Edozie JSC.
C & C Construction Company Ltd. & Anor.
Samuel Tunde Okhai
➥ LEAD JUDGEMENT DELIVERED BY:
C. Pats-acholonu, J.S.C.
⦿ FOR THE APPELLANT
Akin Adewale, Esq.
⦿ FOR THE RESPONDENT
M.l. Igbokwe, Esq.
➥ CASE HISTORY
The synopsis of the case is that the respondent while on duty which involved the servicing of the appellants’ crane sustained grievous injuries arising out of the 2nd appellants failure as switch operator to use due care as the respondent alleged in his working unit in that the switch operator caused the crane being serviced to be connected to the electricity from which it derives its power of mobility and functionality.
Arising out of the negligent act of the appellants the crane became agitated and caused a drum of the crane to rollover violently over the respondent’s left foot and crushed that leg below the knee. For this he was under great pain and suffering for which he was hospitalized and this eventually led to the amputation of that leg. He issued a writ of summons claiming a considerable sum of money in the lower court. The appellants denied any liability insisting that what happened was an inevitable accident in that the crane energized itself.
That court dismissed his claim whereupon he appealed to the Court of Appeal which found favour and merit in his appeal but appeared not to have considered it proved the claim in respect of pain and suffering even though it made an award for damages for negligence. The appellants appealed to this court and the respondent cross-appealed on the issue of damages.
➥ ISSUE(S) & RESOLUTION
I. Whether the respondent established a case of negligence against the appellants.
A. The appellants had equally stated that the respondent having averred that: “It was mechanically and scientifically impossible for the crane to energize itself.” did not adduce any mechanical or scientific evidence to prove his averment. With greatest respect to this uncanny type of submission, it is mind boggling to expect the respondent to prove this. The averment of the equipment energizing itself was made by the appellants. It is therefore their onerous responsibility to prove that such a situation could occur or has occurred before and they had in the course of their work and experiences witnessed this sort of phenomenon. It is invidious and I dare say quizzical for the appellants to indulge in this type of reasoning and expect the court to take them seriously when they mired their argument by shifting the onus of proof of a particular assertion which they raised to the respondent. That frame of mind appears to me as an affront to reason, intelligence and of course law.
II. Whether the award of N700,000.00 as general damages was justified.
A. It is my view that the sum of N50,000.00 described as “damages for negligence” in the judgment of the lower court is based on no known head of claim. It is therefore disallowed. In response to the cross appeal I award N500,000.00 as general damages for the pain and suffering the respondent went through.
The award the respondent is entitled is as follows:
1. Loss of earning capacity – N150,000.00;
2. Future loss – N500,000.00;
3. Damages for pain and suffering – N500,000.00;
Total – N1,150,000.00.
➥ MISCELLANEOUS POINTS
⦿ Per Pats-Acholonu, JSC:
In their judgments, the learned Justices of the Court of Appeal have commented as follows per Coomassie, JCA. “I could have awarded damages for pain and suffering but for fact that nowhere the appellants produced the medical evidence to support his pleadings”.
I must confess that I am at a loss to understand what sort of medical evidence would demonstrably show proof of pain and suffering. Beyond seeing a sufferer wince by the contorted nature of his face in agony, I do not know the type of evidence being sought for. Any one who has his leg crushed by a machine and stayed many months in the hospital in great pain and suffering and had his crushed leg amputated has definitely suffered pain and suffering. Pain is an intangible agonizing traumatic experience deeply internalized in the sufferer. To the best of my knowledge there has not yet been devised, invented or developed a method of medically or scientifically B assessing the pain of a sufferer in such a way that the device can be tendered in evidence. The word “pains” along with the twin term of “suffering” is a malaise which could be debilitating in its ferociousness if the pang is excruciating as in someone whose leg is crushed and had to have the leg amputated, or it could be a mild pain which the victim may bear with fortitude; but, the common characteristic is discomfort and sometimes misery leading to depression and anguishness of the body and even of the mind leading even to a state of unhappiness and distressfulness. The respondent is not happy that no award was made for pains and suffering. There was evidence that is easily discernible of great pain and suffering. In their submission, the appellants stated “pain and suffering cannot just be proved by the ipse dixit of the witness of the cross appellant in this case but was to be proved through judicial evidence such as expert evidence of the medical doctor who treated the patient”. I wonder how the doctor would be able to give such evidence. Two people suffering the same kind of injury may exhibit different and divergent behavioural patterns in their response to the pains. How can a doctor or anybody for that matter make assessment of pain scientifically.
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ DAMAGES FOR PAIN (WHICH CANNOT BE MEASURED) SHOULD NOT BE DENIED
In the American case of Warfield Natural Gas Co. v. Wright 54 SW 2nd it was held that where pain is claimed as an element of damages the impossibility of definitely measuring the damages by a money standard is no ground for denying pecuniary relief.
⦿ DAMAGES FOR SUFFERING, PAIN, ANXIETY SHOULD BE ASSESSED ON REASONABLE BASIS
Sellers, L. J. in Wise v. Kaye (1962) 1 All ER 257 and which states thus: “It has always been accepted that physical injury and the personal experience of pain, and also of suffering, including worry and anxiety for the future and apprehension of an operation, or of nursing or deprivation of activity owing to disablement or embarrassment or limitation felt by reason of disfigurement, cannot in any true sense be measured in money… Damages for such injuries, originally almost invariably assessed by juries, were said to be ‘at large’, and had to be assessed on a reasonable and fair basis between party and party. There can be no restitution for the loss of a limb or loss of faculty but the law requires adequate compensation to be assessed”.
➥ REFERENCED (OTHERS)