JAYAKODY vs. JAYASURIYA

026-SLLR-SLLR-2005-V-1-JAYAKODY-vs.-JAYASURIYA.pdf


JAYAKODYVSJAYASURIYACOURT OF APPEAL,
DISSANAYAKE, J ANDSOMAWANSA, J.
A. 389/93(F)
C. KURUNEGALA 1461/MJUNE 23, 2003 ANDAUGUST 2004
Damages – Result of an attack by defendant – Lex Acquilia – Compensation forphysical pain – Is it allowed?
The plaintiff-respondent instituted action against the defendant appellantclaiming damages for injuries suffered by him as a result of the attack by thedefendant-appellant. The defendant-appellant denied the averments in theplaint. After trial, the trial court entered judgement in favour of the defendant-appellant.
It was contended that the trial court had erred in awarding damages, takinginto consideration the element of pain and suffering undergone by the plaintiff-respondent as a result of the injuries.
216Sri Lanka Law Reports(2005) 1 Sri L. R.
HELD:
In an action for personal injuries the plaintiff is entitled to claim compensationfor pain and suffering ;
In regard to pain and suffering there are really no scales by which pain andsuffering can be measured and there is no relationship between pain andmoney. Court can only give a general equitable assessment.
APPEAL from the judgment of the District Court of Kurunegala.
Cases referred to .
Prof. Priyani Soysa vs Rienzie Arsecularatne – (2001) 2 SriLR 293
Pauwvs African Guarantee & Indemnity Co. Ltd., (1950) 2 SA (SWA) 132Romesh de Silva, P. C., with Hiran de Alwis for defendant-appellant.
Sunil Cooray for plaintiff-respondent
Cur. adv. vult.
November 28, 2003N. E. DISSANAYAKE, J
The plaintiff-respondent instituted this action against the defendant-appellant, claiming damages for injuries suffered by him on 17.07.1981 asa result of the attack by the defendant-appellant.
The defendant-appellant by his answer, whilst denying the averments inthe plaint, prayed for dismissal of the action.
The case proceeded to trial on 8 issues and at the conclusion of thetrial, the learned District Judge entered judgment in favour of the plaintiff-respondent.
It is from the aforesaid judgment that this appeal has been preferred.
At the arguments of this appeal before this Court, learned President'sCounsel appearing for the defendant-appellant confined his arguments tothe following 2 matters only :-
That the learned District Judge had erred, in holding that the injuriessustained by the plaintiff-respondent in the absence of evidence to arriveat such a conclusion and that the evidence established that the injurieshad been caused as a result of a fall.
■ qaJayakody vs Jayasuriya (Dissanayaka, J.)217
That the learned District Judge had erred in law in awarding dam-ages, taking into consideration the element of pain and suffering under-gone by the plaintiff-respondent as a result of the injuries.
The plaintiff-respondent in his testimony set out the circumstancesunder which he had received the injuries which is briefly as follows :-
On 17.07.1S81 when he went to the Co-operative Society office at about9.30 in the morning the defendant-appellant had referred to him as a rogueand had inquired as to why he had come there. The plaintiff-respondenthad told him that all the people knew who the rogue was, and had advisedhim to maintain his position. He had further said that if he were to disclosehow the defendant-appellant had functioned there, that he will get intotrouble and that nothing will befall him.
At this stage when the defendant-appellant had attempted to strike himwith his hand, he had avoided the blow and had gone towards the road. Onhearing some footsteps as the plaintiff-respondent turned back and looked,suddenly, the defendant-appellant had assaulted him with some weaponthat he had in his hand. The blow had alighted on the plaintiff-respondent'sleft side and he had fallen. Thereafter, he had lost consciousness. Whenhe had regained his consciousness about a month later he had observedthat he was warded at the Kurunegala Base Hospital.
As a result of the injuries suffered by him he has become an invalid. Hewas suffering from paralysis of his limbs on his right side. He has iosi hismemory. He was not in a position to be engaged in employment.
As a result of his prolonged illness, specially, as he had failed to recoverhis senses for a long time, Polgahawela Police Station had been able torecord his complaint only after 3 months of the incident. He made astatement to the Police on 17.10.1981.
The plaintiff-respondent produced copy of his statement to the Policemarked P1. He called Dr. S. Abeysinghe, Consultant Neuro Surgeon whohad performed an operation on him as a witness. The medico-legal reportof Dr. Abeysinghe had been produced marked P2.
Dr. Abeysinghe's oral evidence and report clearly reveal that the plaintiff-respondent sustained head injuries^as a result of a blow struck by adangerous and a hard object.
21SSri Lanka Law Reports(2005) ! Sri L. R.
Dr. Abeysinghe under cross-examination had further stated that it ispossible for the injuries that were found on the plaintiff,.to have been causedby a fall. He had further stated that it was also possible that the saidinjuries could have been caused by a single blow.
Under re-examination he stated as follows:-
Q : Can you say how these injuries were caused, whether by fallingon the ground and colliding with a stone, such serious fractures :was it more likely that the injuries were caused by an attack, or.by the patient having fallen down?
A :"My conclusion'is that this was a hard blow by' being hit with
some object. If the patient had a fall one would except moreinjuries. If there was a stone and the patient was excited the headcould have struck (on it), somewhere, and if that happened onlythe head would have been injured, and there may not be anyinjuries elsewhere on the body.".
Dr. Abeysinghe further stated that he could not definitely rule out thepossibility of the injury having been caused by a fall.
The defendant-appellant in his evidence had denied that he assaultedthe plaintiff-respondent and testified to the fact of seeing the plaintiff-respondent running away on seeing him. He further stated that he hadlearnt thereafter that the plaintiff-respondent had received injuries as aresult of a fall.
The learned District Judge, after embarking on an evaluation and analysisof the evidence had rightly held that the injuries caused to the plaintiff-respondent was as a result of the plaintiff-respondent being dealt a blowby the defendant-appellant. The learned District Judge had rejected theevidence of the defendant-appellant to the effect that the plaintiff-respondenthad received injuries as a result of the plaintiff-respondent's act of runningaway on seeing the defendant-appellant and having had a fall on the tarredroad.
Learned President's Counsel appearing for the defendant-appellantfurther contended that awarding of damages which was not quantified was .wrong. He further contended that the learned District Judge erred in orderingdamages for pain of mind and suffering which was not allowed by law.
CAJayakody vs Jayasuirya (Dissanayake, J.)219
The contention of learned President's Counsel appearing for thedefendant-appellant that the plaintiff-respondent has not quantified thedamages is not tenable. The plaintiff-respondent has claimed Rs. 275,000/- as compensation. He has claimed Rs. 8,500/- as hospital expenses,Rs. 4,490/-for expenses.on account medicines, Rs. 750/- for ayurvedictreatment, Rs. 1,260/- for nursing attendant charges and Rs. 10,000/- forspecial foods and beverages, totalling up to Rs. 25,000/- and a sum totallingup to Rs. 300,000/-.
Further it was contended by learned President's Counsel that the awardof compensation for physical pain caused to a person injured throughnegligence was not allowed in an action under 'Lex Acquilia".
He cited the decision of Prof. Priyani Soyza vs Rienzie Arsekuleratne”1.
However in Prof. Priyani Soyza Vs Rienzie Arsekularatne (Supra)Dheeraratne, J at pages 302 stated " Damages claimed by the plaintiffunder the head of mental shock, appear to be recoverable under the RomanDutch Law as well as the English Law (if the task of reasonableforeseeability is satisfied), only if that results in psychiatric illness.Damages for emotional shock of short duration, which has no substantialeffect of the health of a person are not recoverable.".
At page 304 Dheeraratne, J stated further "of course compensation forinjured feelings arising out of and flowing naturally from physical hurt done,could be claimed under the LexAquilia. See Pauwsis African Guaranteeand Indemnity Co. Ltd.<2).
Me Keron in the Law of Delict (1965) 6th edition at page 114 under theheading personal injuries has stated ;
In an action for personal injuries the plaintiff is entitled to claimcompensation for:
actual expenditure and pecuniary loss ;
disfigurement, pain and suffering and loss of general health andthe amenities of life ;
future expenses and loss of earning capacity
The damages recoverable under the second head cannot be assessedon any arithmetical or logical basis
220Sri Lanka Law Repons(2005) 1 Sri L. R.
■CA
Jayakody vs Jayasuirya (Dissanayake, J.)
221
The usual method adopted is to take all the circumstances intoconsideration and award substantially an arbitrary sum.
Macintosh and Scobee, on "Negligence in Delict" 5th edition at page261, under the head of "Damages for Personal Injury" has stated that “thegeneral principles in relation to compensation payable for injuries negligentlyinflicted on oneself personally have been laid down in a number of decisions
to the effect that the plaintiff in entitled to compensation
for both pecuniary and non-pecuniary loss such as :
all necessary expenses such as medical and hospital alteration.
loss of future earnings.
compensation for loss of amenities.
compensation for the shortening of one's expectation of life.
compensation in respect of pain, suffering or deformity sustained
Where damages are claimed for bodily injury,
the plaintiff is not required to put a separate money value on eachdifferent element of the general damages he has suffered.
In regard to pain and suffering, there are
really no scales by which pain and suffering can be measuredand there is no relationship between pain and money.
(fj loss of wages.
compensation for change in personality
Items (c) and particularly (e), however are not capable of any preciseestimate; the court can only give a general equitable assessment.'1.
Thus, it is manifest that the award of compensation for physical paincaused is recoverable and the learned District Judge has rightly orderedcompenstation on that account too.
Therefore, I am of the view that the learned District Judge has embarkedon a proper evaluation and analysis of the evidence and entered judgmentin favour of the plaintiff-respondent. I see no basis to interfere with his saidjudgment.
The appeal of the defendant-appellant is dismissed with costs fixed atRs. 5000/-.
SOMAWANSA, J. — I agree.
Appeal dismissed.