_ Appuhamy v. Jtanasinghe
1956Present: PuIIe, J., and Sansoni, J.
A. M. APPUHAMY el al.. Appellants, and A. E. RANASINGHB'• ‘et al., Respondents.‘
.3. C. H-15—D.C. Colombo, 22,727.
Delict—Collision—Negligence—Assessment of damages—Power of appellate court to– – . intervene. –r – –' . ‘' ‘ ".
The appellate court can properly interveno if tho sum awarded as damages- .’ by a trial Judge in respect of a delict is so inordinately low as to amount to ai . —wholly erroneous estimate of tho damage. • – -'' – ' ..
> 4 S.C. C. 119.
PUX.LE, J.—Apptthamy v. It ana sing he
-^^PPEAXi and cross-appeal from a judgment of the District Court,Colombo.
H. V. Perera, Q.G., with H. TV. Jayewardene, Q.O., and A. G. M-Uvais, for the defendant, appellant in S. C. 14 and respondent in S. C. 15. .
G. E. Chilly,^with A. S. Vanigasooriyar and A. M. Goomaraswamy,
for the plaintiff, respondent in S. C. 14 and appellant in S. C. 15.
Cur. adv. vult.
May 17, 1956. Puxle, J.—
The plaintiff in this action suffered injuries when a motor car, drivenby him on the evening on 29th March, 1948, came into collision with alorry driven by a servant employed by the defendant. The plaintiffalleged negligence on the part of the lorry driver and claimed Rs. 50,000as damages. The defendant pleaded that the collision was causedsolely by the negligence of the plaintiff and, in the alternative, that itwas due to an inevitable accident. He put forward also the plea ofcontributory negligence. The learned trial Judge held that the collisionwas due solely to the negligence of the driver of the lorry and awarded theplaintiff Rs. 15,000 as ‘damages. ‘
There are two appeals. The first by the defendant is against the finding' of negligence and the second, by the plaintiff, is against the assessmentof damages as being inordinately low..
On the issue of negligence the trial Judge lias accepted the evidenceof the plaintiff that shortly before the collision there was no other vehicleoh the road intervening ; that the lorry which at first was on its properside gradually moved towards its right and ultimately collided with theplaintiff’s car, although he had slackened his speed and moved to theextreme left of the road. –
The driver of the lorry was not called as a witness. The owner whotravelled in it gave evidence as also a person called Jacobs Costa. – Theirevidence that "the lorry was following a, cart and that, for some reasonwhich is not very clear, the" driver applied the brakes whereupon thelorry skidded to the right and the plaintiff’s car, coming in the oppositedirection, ran into tfie lorry has been rejected. It was, therefore,inevitable that the Judge should find that the defendant’s driver wassolely to blame for the collision and we accordingly disiniss the defendant’sappeal '-’ "
346.- •. ' PCJLLE, J.—Appuhamy v. Ranaainghe
' The submissions made to us in support^ of the plaintiff’s appeal are.set out compendiously in his petition as follows :•>• • ‘
“The evidence disclosed and the learned trial Judge found that*the plaintiff-appellant had suffered several head and face injuries ofthe most terrible and permanent kind with considerable impairment ofhearing, speech and powers of mastication, that the plaintiff-appellant ‘was rendered a victim of insomnia and recurrent pain, that the structureof the plaintiff’s face, mouth palate and j aws were broken and perma-nently deformed that the plaintiff-appellant was as a result of theaccident compelled to abandon his'career. abroad as a student ofarchitecture and that he had endured great pairi, suffering and expense
during the prolonged period of his stay in hospitalin all the
circumstances the quantum of damages is grossly inadequate and bearsno reasonable compensatory relation to the loss and damage and painof mind and body caused to the plaintiff-appellant. ” '
The plaintiff was in the General Hospital from the 29th March, 1948,for three weeks. He re-entered under the care of Dr. M. V. P. Peiris,
R.C.S., oh the 29th April, 1948, and remained till 8th May, 1948. Hewas again admitted under the care of the same surgeon on the 24thJanuary, 1949, and discharged on the 18th February, 1949.■
It cannot be for a moment doubted that -the plaintiff suffered verysevere injuries. His right ear is completely and the left ear partially'deaf. Dr. Peiris describes the result of his examination on the 29thApril, 1948, as follows :
“ When I examined him he had fractures of the upper jaw, involvingthe malar, that is the cheek bone. He had lost several teeth in theupper jaw . .. His face was deformed and he was not able to closehis jaws ; the jaws did not close properly. One had gone in andone was projecting out. The teeth of the upper and lower jawswere not in alignment. That would cause disability in mastication.The whole of the upper part of the face had been driven in includingthe nose. ”.■_- .
The plaintiff had to submit himself to a painful treatment to bring the. jaws together. . Wires were passed through the upper jaw and attached -to a frame in order to pull it out. The plaintiff had to be in tin's positionfor about two or three weeks. The treatment proved unsuccessful andthe final condition of the plaintiff is described as “ a permanent deformityin the face and defect in the proper closure of the jaws Further, hisspeech is defective and owing to the damage to the ear sinuses he is liableto constant headaches permanently impairing his general health.. The; .learned Judge.'says, “ He is unable.to. masticate his food and his .health is ruined…. The physical [pain that he had to endure wasimmense”. 1?;-; i – '. ' •- *" '. '. . • -•- •’>
At the time of the accident the plaintiff was spending his vacation inCevlon. He had come from Bombay where he was going through a
PULXE, J.—Appuhamy v. Ranasinghe~347
fire-year course in architecture at the Sir J. J. School of Architecture.He had to abandon these studies and set himself up in an export andimport business .with a partner to which he contributed a capital ofRs. 4,000.'_
Our attention has been drawn to several cases in the English reportswhere sums as large as £9,000 had been awarded as damages to personswho had suffered less grievous injuries than the plaintiff in the presentcase. I do not feel that the damages awarded in the present case shouldfor that reason be enhanced. It is essential to consider closely the facts,of each particular case. The cases are helpful to the extent that a courtwould not hesitate to award a very large sum by way of damages, if thatis the only adequate way of compensating an injured person.
To justify, however, a variation of damages awarded by a Judge offirst instance the principle applicable is stated by Viscount Simon inNance v. British Columbia Electric Railway Company Ltd. 1 as follows :
“ Even if the tribunal of first instance was a judge sitting alone,,then, before the appellate court can properly intervene, it must besatisfied either that the judge, in assessing the damages, applied awrong principle of law (as the taking into account- some relevantfactor or leaving out of account some relevant one) ; or, short of this,that the amount awarded is either so inordinately low or so inordi-nately high that it must be a wholly erroneous estimate of thedamage. ”<•
While the learned Judge has not attempted, perhaps wisely, to quantifythe damages under various headings it cannot be said that he misdirectedhimself on any principle of law or misapprehended the facts.. We havebefore us the case, which is not common, of a plaintiff whose hope of"pursuing a professional career has been frustrated by the negligentact of the defendant’s servant. ■. Resides having suffered intense bodilypain, he is left with a permanent deformity of his face and is deprived,for the rest of his life, of taking his food in the normal way.- A verylarge part of his sense of hearing is gone and the aftereffects of the accidenthave rightly earned the verdict that his health is ruined. It seems tous, with all respect to the learned Judge, that the amount is'so inordi-nately low as to amount to a wholly erroneous estimate of the damage. ■We, therefore, vary the decree under appeal by enhancing the damages,to Rs. 30,000. The plaintiff will be entitled to the costs of his appeal.. -The order as to costs made by the District Judge will, of course, stand.
Saxsoxt, J.—I agree…
Appeal No. 14 dismissed.Appeal No. 15 allowed^ .
(1951) A. C. C01
A. M. APPUHAMY et al., Appellants, and A. E. RANASINGHE et al., Respondents