002-NLR-NLR-V-55-J.-G.-DIAS-Appellant-and-S.-A.-G.-SILVA-Respondent.pdf
GTHSTASEKLARA J.—Dias v. Silva
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Present: Gratiaen J. and Gunasekara J.J.G. DIAS, Appellant, and S. A. G. SILVA, RespondentS. C. 87—D. G. Colombo, 20,506
Collision—Negligence—Award of damages—Circumstances when court of appeal willinterfere.
In a running down case, a court of appeal will interfere with an award ofdamages if it is satisfied that the trial judge has misapprehended the factsand has for that reason made a wholly erroneous estimate of the damagesuffered.
-^^k-PPEAL from a judgment of the District Court, Colombo.
W. Jayetvardene, with D. R. P. Goonetilleke, for the plaintiffappellant.
V. Perera, Q.G., with H. Wanigatunga and M. Ramalingam, forthe defendant respondent.
Gur. adv. vult.
April 28, 1953. Gttnasekaka J.—
The plaintiff, a clerk in the employ of Messrs. Hoare and Co., 37 yearsof age, was injured in a collision, brought about by the defendant’snegligence, between a motor bicycle ridden by him and one ridden bythe defendant. He sued the latter in the District Court of Colomboto recover a sum of Rs. 15,000 as damages for the personal injuries socaused, and was awarded a sum of Rs. 3,500. He appeals on the groundthat this sum is inadequate. In his assessment the learned judge alloweda sum of Rs. 1,900 as expenses incurred by the plaintiff in consequenceof the injuries. The question raised in the appeal-is the adequacy of
the award of Rs. 1,600 under other heads of damage.
-e
The accident occurred on the 28th May, 1948, and the plaintiff wastreated for the resulting injuries at the General Hospital in Colombofrom that day till the 11th June, 1948, as an in-patient, and for sometime after that as an out-patient. Three metatarsal bones of the rightfoot were fractured. One of these injuries was a compouncL, comminuted
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GTTNASEK.ARA J.—Dias v. Silva
fracture of the first metatarsal bone, and the head of that bone as wellas other fragments of bone had to be removed, and the pliintiff hadto have his foot and leg in plaster for about six weeks. In the opinionof the senior surgeon of the hospital, Mr. Jayasuriya, who had him underhis care and treatment, he “ would have been in great paij^ on accountof this injury ”. After an examination on the 18th September, 1948,four months after the accident, the surgeon stated in a report:
“ At present there is slight shortening of the right big toe andinability to put his weight on inner side of foot. There is also slightoedema of the foot and ankle. At present he is not fit to perform anyduties that require standing or walking any distance.”
On the 4th February, 1949, eight months after the accident, he saidin a further report :
“ At present there is shortening of the right big toe with slightdorsifiexion of toe. There is a drop of the anterior arch of the footand neuralgic pain in sole of foot on standing or walking. He has to-put his weight on outer part of foot. This disability ,is permanentand the loss of earning capacity may be assessed at ten per cent.”
These statements he supported by evidence given at the trial, on the-30th August, 1950. Explaining the nature of the permanent disablement,,he said:
“ It means that the plaintiff has no longer the free and completeuse of his right foot. He would not be able to walk freely, easily andwell. He cannot rest on any part of that foot, except the outer portion,when he stands. That will be a great strain on his foot. He wouldprobably feel a certain amount of strain when he stands for a longperiod. I doubt plaintiff’s being able to walk long distances normally.Hewill have a definite limp in his walk. I doubt very much plaintiff’sbeing able to play cricket. It is very doubtful that he will be able toplay football freely. If the plaintiff is prepared to suffer a certainamount of discomfort and pain probably he would be able to playtennis but not as he was able to do before the accident. If he playscricket he will not be able to run about. There are some people whodance even with an artificial limb. Certainly he would not be able todance gracefully. ”
He added that the plaintiff would be able to ride a motor bicycle, butwith some discomfort, and that he could “ walk a quarter mile with a-certain amount of discomfort and pain ”. An anterior arch support“ would to a certain extent reduce the deficiency of the foot ”, but hewould still be “ a disabled man ”.
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The effect of this evidence is stated by the learned District Judge-in these terms :
“ According to Dr. Jayasuriya plaintiff cannot use hisefoot verywell now. He could walk but he cannot walk so rapidly now as before.Dr. Jayasuriya further says that the plaintiff may be able to take to-
nTTfyTASTCTCAR A J.—Dias v. Silva
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games like football and tennis or cricket or dance but he will not beable to do so with the same freedom and without strain as he haddone before the accident. There is undoubtedly an impairment ofplaintiff’s physical powers. Of course Dr. Jayasuriya says that theman may be able to ride a motor cycle but the movement of his footwill certainly not be as free as before the accident.”
He goes on to say that the plaintiff “ undoubtedly must have undergonegreat pain of mind and body ” and that he “ certainly is entitled tosome damages
With all respect to the learned judge, it seems to "me that he has quitemisapprehended the effect of the surgeon’s evidence. The understatementin “ plaintiff cannot use his foot very well now ” is not a mere figure ofspeech, as is shown by the rest of the passage, but is apparently intendedto be taken literally as a statement of the gist of Mr. Jayasuriya’sevidence. The learned judge has failed to appreciate that the effectof the injury on the plaintiff’s ability to walk is that he can never againwalk like a normal man, and that he can walk only a short distanceat a time and that too with discomfort and pain : it is not merely thathe “ could walk but he cannot walk so rapidly as before ”. The surgeondoes not undertake to say that the plaintiff may be able to play footballand cricket. On the contrary, he is strongly inclined to the view thathe cannot. “ I doubt very much, ” he says, “ plaintiff’s being able toplay cricket ”, and he goes on to say that “ if he plays cricket he willnot be able to run about ” : that is to say, I suppose, that if he doesventure to play at all he must not hope to bowl or field, and he mustcultivate a one-footed stance for batting. What he says about footballis that it is “ very doubtful that he will be able to play football freely ”.It is clear from this witness’s evidence that any football that the plaintiffmay play he must play without running or kicking. What he says aboutthe likelihood of the plaintiff’s being able to dance is that “ certainlyhe would not be able to dance gracefully ”. Seeing that such an assuranceshould be enough to keep any normal person off the dance floor, theevidence surely means that the plaintiff is prevented for the rest of hislife from dancing.
It appears from the plaintiff’s evidence that before this accidenthe was a man of robust constitution who led a very active life. He saysthat he was in the Army during the war, from 1940 to 1945, as a bombardierin the Ceylon Garrison Artillery. Up to the time of the accident,according to him, he used to play cricket and football and he used todance. “ Now he says, “ I cannot do any- of these things. I cannoteven walk for exercise.” He was not cross-examined or contradictedon these points. It is evident that as a result of -this accident he hasbeen compelled, while yet in the prime of life, to give up for good hismain recreations ; and that from being a healthy man who delightedin physical exercise and whose recreations included dancing, he hasbecome a cripple who must for the rest of his life be content to walkwith an ungainly limp and with discomfort and pain. He is clearlyentitled to very substantial damages, and not merely to “ home damages ”,
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GUNASEKAEA J.—Dias v. Silva
for the injury sustained in his physical capacity of enjoying life, andfor the bodily pain and discomfort that he has suffered andP must yet-suffer for the rest of his days.
The plaintiff’s earnings by way of salary and allowancar amountedto Rs. 145 a month at the time of the accident and Rs. 18(f at the timeof the trial in August 1950. He stated, however, that owing to hisinjury, on the one hand he has been deprived of an opportunity thathe used to have of earning an additional sum of Rs. 20 or BSs. 30 a monthfor going on board ships and supervising the clearing of goods, whileon the other it now costs him more to travel to work because he cannotride a motor bicycle. He also said that he must now abandon an ideathat he had of rejoining the Army where he could get better pay. Itdoes not appear that the learned judge has included reduction of earningsamong the heads of damage, and I do not think that it can be said thatany substantial loss under that head has been proved.
The principles that should govern a court of appeal in deciding whetherit should interfere with a finding as to the question of damages by ajudge sitting without a jury have been stated by Lord Wright in Davies v.Powell Duffryn Associated Collieries, Ltd-1 in these terms :
“ In effect the court before it interferes with an award of damages,should be satisfied that the judge has acted on a wrong principle oflaw, or has misapprehended the facts, or has for these or other reasonsmade a wholly erroneous estimate of the damage suffered.”
In the present case I am satisfied that the learned district judge hasmisapprehended the facts and has for that reason made a wholly erroneousestimate of the damage suffered. The award of Rs. 1,600 appears to bebased upon an entirely erroneous view that in the matter of physicalactivity the plaintiff can continue to do much the same sort of thingas before the accident though not with quite the same ease or speed orskill or grace. I appreciate that in cases such as this, when damageshave to be awarded for bodily pain and suffering and loss of amenities,a court can do no more than try “ to compensate a person in the plightof the plaintiff by awarding what might fairly be described as notionalor theoretical compensation to take the place of that which is not possible,viz., actual compensation ”. (per Romer L.J. in Rushton v. NationalCoal Board 2). I do not doubt, however, that a more correct view of theresult of the injury would have led the learned district judge to make aproportionate assessment of the “ theoretical compensation ” and to-estimate it at many times the sum of Rs. 1,600. Id my opinion it wouldbe reasonable to award a sum of Rs. 10,000 under this head, so that thetotal would be Rs. 11,900, inclusive of the sum awarded by the learnedjudge, as special damage. I would, therefore, order that the damages beincreased from Rs. 3,500 to Rs. 11,900. The plaintiff must have hiscosts in both courts.'
Geatiaeit J.—I agree.
Appeal allowed..
1 {_194Z A. C. 601 at 017.
[1953] 1 All E. R. 314 at 317.