Zambia: Supreme Court
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RTF formatRIDGEWAY HOTEL LTD v VICTOR ODONG OCAYA & VICTOR OCAYA (1987) Z.R. 53 (S.C.)
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SUPREME COURT NGULUBE,
D.C.J., GARDNER AND SAKALA, JJ.S. |
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Flynote
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Damages - Inflation - Date of calculation. Damages - Assessment of - Relevance of awards in other countries - Relationship of Kwacha to foreign currencies. |
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Headnote
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The appellant
appealed against the judgment of the High Court awarding damages
for personal injuries suffered by the respondent
as a result of
the negligence of the appellant. The appeal was as to the quantum
of damages. Held:
Cases referred to:
For the respondents: Mr. K. Simbuo, Mulungushi Chambers. |
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Judgment
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GARDNER, J.S.: delivered the judgment of the court.
p54
This is an
appeal from a judgment of the High Court awarding damages for
personal injuries suffered by the first respondent
as a result of
the negligence of the appellant. The appeal is as to the quantum
of damages. The facts of
the case were that the first respondent, a very young child, was a
guest at the appellant's hotel and was playing
near the swimming
pool when he fell and injured his left index finger on a piece of
a broken glass. The first
respondent had a lacerated wound of the left palm, and the tendon
of the left index finger was cut. He underwent
an operation to
repair the cut tendon and the hand was in plaster. The plaster was
removed after five weeks, and he attended
for physiotherapy
treatment for approximately six months. There was permanent
disability to the finger in that there was
restriction of flexion.
The second respondent further gave evidence that the finger could
not be straightened and that, as
a result, the first respondent
could no longer pursue his interest in music and some other
hobbies. It was held
that the injury was due to the negligence of the appellant and the
learned trial commissioner awarded damages
of K5,000.00 for
permanent disability and K1,500.00 for pain and suffering together
with special damages of K28.00 a day
for three days a week, being
transport costs of attending physiotherapy treatment. The learned
trial commissioner said that
there was no evidence as to how long
these special damages were to run and in consequence made no
calculation of the award
under that head. Mr Lwatula on
behalf of the appellant has put forward two grounds of appeal, the
first that the award of special damages for
transport costs was
not conclusive, and the second that the awards for general damages
were excessive. As to the first ground of appeal, there was evidence from the second respondent, the first respondent's father, that the physiotherapy treatment continued for approximately six months, and, in this court, the parties have agreed that judgment should be entered for such damages for twenty weeks at K60.00 per week. Accordingly, this ground of appeal succeeds, and a consent judgment for K1,200.00 special damages is entered on behalf of the respondent against The appellant.
As to the
second ground of appeal, namely that the general damages were
excessive, Mr Lwatula referred to the principle that
this court
will interfere with awards of damages where they are utterly
unreasonable or entirely erroneous. He cited in particular
two
cases in which damages have been awarded in the past in Zambia,
the first being the case of Mac
Naughton v Pleasure Pools Limited
(1). In that case the plaintiff suffered injures to his left
knee as a result of which he underwent an Operation and had
a
plaster cast on his knee for an unspecified length time. There was
a doctor's report indicating that there was a risk of
osteo-arthritis developing and the doctor estimated that the
plaintiff should obtain about 90 degrees full flexion of his
knee.
The general damages awarded in that case were K1,500.00 and The
date of The award was May, 1979. The other case
was the case of Kapembwa v
Maimbolwa and the Attorney-General
(2) at page 135, where this court, on appeal, awarded the sum of
K500.00 as general damages for personal injuries to the
plaintiff
who suffered a lacerated wound, one inch in length and skin-deep,
in the skull, another laceration of the lower
rib and left knee p55
and a fracture
of the fourth rib; one tooth had fallen out and two others were
broken. The plaintiff attended as an out-patient
at the hospital
for eight days and there was a doctor's report that he would have
suffered pain whilst eating for the first
five to six days and
pain for a few days because of the broken rib which had healed.
The doctor said that the injures were
minor. The date of the
accident in that case was June 1974, the date of the award on
appeal was March, 1981, but there
was no indication in the report
as to when the trial judgment was delivered, which is the date
which governs the rate of
inflation to be taken into account. Mr Simbao, on
behalf of the respondent, argued that the damages for pain and
suffering and general disability could not be
calculated with
mathematical precision, that the case of Kapembwa
should be distinguished from this
case because in that case there was no permanent disability, but
only what was regarded
by the doctor as minor injures. He
maintained that in this case the damages awarded were not so high
that they should be
interfered with by this court. We agree with
Mr Lwatula that this court will interfere where an award of
damages is utterly unreasonable or entirely erroneous,
but we
would point out that these are the only circumstances in which
this court should interfere, unless it is shown that
an award is
based on a wrong principle. It is not sufficient for this court to
be of the opinion that we would have awarded
a different sum from
that awarded by a lower court. There must be a very real error in
the amount awarded before this court
will intervene. We have
considered the cases cited to us and in particular the case of
Kapembwa,
where this court awarded K500.00 for general damages. We agree win
Mr Simbao that it is distinguishable because in that case
the
injuries referred to, although apparently more spectacular, were
regarded by the doctor as minor, and the period of
eight days for
the recovery of the plaintiff was quite different from the period
of six months treatment and permanent deformity
and disability of
the first respondent in this case. In respect of injuries to
fingers, we have examined the examples cited
by Kemp and Kemp on
the Quantum of Damages, Volume II, and the nearest similar case is
that cited at page 9884, that is the
unreported case of
Martin v Bott, where a male aged
39 years had a laceration of his right, little, ring and middle
fingers and division of the tendon of
the middle finger which
required stitching. There was some permanent deformation and loss
of dexterity in the finger and
continuous aching.The general
damages awarded at the date of the trial were 1,000 Pounds, which
the learned authors of the
book to which we refer valued at
4,200.00 Pounds in December, 1982. We consider this to be the most
appropriate example because
it deals specifically with the cut
tendon of a finger. In considering
the cases which have been cited to us and the one case to which we
have referred we would confirm that since
the dates of those cases
the inflation which has occulted in this country should be taken
into account. The date at which
the rate of such inflation should
be calculated is the date of the trial judgments October,1984, and
not the date of this
appeal. We also take the view that in
comparing English awards it is unrealistic to carry out a simple
mathematical calculation
concerning the value of the English pound
against the Zambia kwacha at any one time because the purchasing
power of the two
currencies is different in the two countries; but
it is
nevertheless, always helpful to look to England and other countries for guidance.
In all these
circumstances, whilst it is possible that this court, sitting as a
trial court, might have awarded different
amounts of damages in
this case, there is nothing in the total award of K6,500.00
general damages for personal injury that
we find to be so
erroneous that we should intervene. The second ground of appeal
against the quantum of damages fails. The appeal is
therefore dismissed except as regards the quantum of special
damages which, by consent, are awarded to the respondents
in the
sum of K1,200.00. As to costs,
although Mr Lwatula has argued that, as he had to deal with the
first ground of appeal as to the special damages
because they had
not been quantified, the costs of this appeal should be
apportioned, we agree with Mr Simbao that the question
of special
damages should have been dealt with by review under Order 39 of
the High Court Rules, and, as the appellant has
not succeeded on
the other ground of appeal, there was no need for the matter to
come on appeal at all. In consequence the
costs will follow the
event and the respondents will have the costs of this appeal and
in the court below. Appeal dismissed |
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