Court name
Supreme Court
Case number
SC 162 of 1969

Kamara v Umarco Ltd (SC 162 of 1969) [1970] SLSC 8 (08 April 1970);

Law report citations
1970-71 ALR S.L.38
Media neutral citation
[1970] SLSC 8
Case summary:

Tort-damages-measure of damages-personal injuries-shortening of life-loss of predominantly happy life major factor to be considered, not social or financial position-court will avoid extravagant awards-Judgment was made for the plaintiff.

Coram
Harding, J

KAMARA v. UMARCO LIMITED
SuPREME CouRT (Rowland Harding, J.): April 8th, 1970
(Civil Case No. 162/69)
[1] Tort-damages-measure of damages-personal injuries-shortening
of life-loss of predominantly happy life major factor to be considered,
not social or financial position-court will avoid extravagant
awards: Injury which shortens expectation of life can be compensated
for in damages, but such damages are not calculated on the basis
either of a statistical or actuarial test, or the length of life that is lost,
but on the loss of a predominantly happy life, and in assessing this
the age of the injured person may be relevant and also whether or
not he has a wife and family but his social or financial position may
not be considered since happiness does not depend on wealth; in
view of the difficulty of measuring such loss in monetary terms with
any degree of accuracy the court will not make extravagant awards
(page 41, line 20-page 42, line 17).
[2] Tort-negligence-damages-measure of damages-shortening of life
-loss of predominantly happy life major factor to be considered, not
social or financial position-court will avoid extravagant awards: See
[1] above.
The plaintiff brought an action against the defendants in the
Supreme Court to recover damages for personal injuries.
He was employed as a labourer by the defendant company on
board one of their motor vessels, and was involved in an accident due
to the negligence of the defendants in which he sustained severe
injuries to his right hand. He brought an action in the Supreme
Court claiming, inter alia, as special damage, loss of earnings, and as
general damages, damages for pain and suffering, shortened
expectation of life, and loss of ability to earn a living as a labourer.
Cases referred to:
(1) Benham v. Gambling, [1941] A.C. 157; [1941] 1 All E.R. 7, dictum
of Viscount Simon, L.C. applied.
(2) Flint v. Lovell, [1935] 1 K.B. 354; (1935), 152 L.T. 231, applied.
(3) Rose v. Ford, [1937] A.C. 826; [1937] 3 All E.R. 359, applied.
Gelaga-King for tl1e plaintiff;
Barlatt for the defendant.
ROWLAND HARDING, J.:
The plaintiff's writ of summons issued on May 7th, 1969 was
served on the defendants, who entered appearance on July 12th, 1969.
The statement of claim was delivered and filed on October 4th, 1969.
38
KAMARA v. UMARCO LTD., 1970-71 ALR S.L. 38
S.C.
An interlocutory judgment was signed in default of defence on
October 15th, 1969 for damages to be assessed. On December 5th,
1969 the plaintiff moved this court to fix a date for assessing the
damages. On December 22nd, 1969 the hearing of evidence for
assessing the damages commenced and lasted four days. 5
The plaintiff in evidence said that he was employed by the
defendants on April 7th, 1968 to work aboard their motor vessel
"Arolla" from Freetown to the coast and back. On May 18th, 1969,
whilst working a lifting machine with other workmen one of the logs
fell from the machine, hitting his right hand; he fell and was bleeding 10
from the cut in his hand. The chief officer dressed the hand. On
arrival at Abidjan he was put ashore and admitted to hospital for one
and a half months. He was brought to Freetown on the vessel
"Baden" and admitted to Connaught Hospital. The injury to his hand
was and is still painful, he still feels severe pains from the hand up to 15
the back of the right side of his neck. He was treated by Dr. Kothari
and discharged on November 22nd, 1968. The next day he had a
fall and was readmitted to hospital and treated by Dr. Stuart. After
his discharge he was examined by Dr. Roxy Harris, who gave a report
which is Exhibit A. Although he was told that he is now fit and 20
ready for work, he could not work because of the muscular pains, and
the state of his hand. He was earning 85 cents per day, and claims
his earnings. He claims Le7.50 for the clothes he had on when he
received his injuries, which were spoilt. He claims Le20.00 for extra
nourishment prescribed by Dr. Kothari. He claims general damages, 25
pain and suffering, shortened expectation of life, and incapability to
earn a living as a labourer. He said he was 30 years of age and he
could neither read nor write. He does not know when he was born.
Answering Mr. Barlatt in cross-examination, he admitted receiving
Le2.61 per week whilst in hospital and could not confirm or deny ·30
receiving Le91.16 from the defendants since his return to Freetown.
[The learned judge reviewed the evidence and continued: ]
After hearing both counsel, I find as a fact that the plaintiff was
employed to work on their motor vessel "Arolla" from April 7th, 1968
to the date of her return to Freetown at 85 cents per day; whilst 35
working aboard the "Arolla" the plaintiff was injured on May 18th,
1968 due to the negligence of the defendants, which was admitted by
Mr. Barlatt since he allowed judgment to be signed in default of
defence, and also that the injury was serious and painful; that the
plaintiff had two operations for the injury; that complications set in 40
and he had tetanus; that his right hand is useless to him to do hard
39
THE AFRICAN LAW REPORTS
work as a labourer since he can only lift light things which go into the
hand, which has the form of a hook; that there is no possibility of an
improvement; and that he was seriously ill for a long time. Dr. Roxy
Harris said his injury may shorten his expectation of life, and gave his
5 reasons for coming to that conclusion. I believe him because I
consider his explanation reasonable. The plaintiff said he has not
sought employment, because of the pains from the hand to the back
of his neck, he cannot do the work of a labourer because of the
condition of his hand. I believe him because it is not easy for a
10 cripple to get employment.
I now come to the claim for damages. Firstly, special damage:
the plaintiff claims 85 cents per day from the date of contract. Neither
the plaintiff nor his counsel gave the period for which earnings or
wages is claimed. Mr. Gelaga-King for the plaintiff says from the
15 date of injury to the date of judgment. Mr. Barlatt for the defendants
says from the date of injury to the date of trial, not judgment. Mr.
Barlatt does not realise that he is saying the same thing as Mr. GelagaKing.
The date of trial means the date judgment was given, since
there cannot be a trial unless there is a judgment.
20 I disagree with both counsel; they overlook the fact that there
is a contract under which the plaintiff was employed. The contract
must be looked at to determine the period for his wages.
[The learned judge reviewed the evidence as to the terms of the
contract, and continued : ]
25 The plaintiff is entitled to wages or earnings from the date he
joined the ''Arolla" to the date he retumed, which is from April 7th,
1968 to June 16th, 1968 at 85 cents per day, which is 71 days at 85
cents per day, total Le60.35.
Answering Mr. Barlatt's cross-examination, the plaintiff said that
30 since his return to Freetown he had received a weekly payment of
Le2.61 up to date of his discharge from hospital. Again the plaintiff,
answering Mr. Barlatt, said he could not admit or deny that he
received Le9l.l6 on account. Mr. Barlatt never claimed any amount
from the plaintiff, even though the plaintiff admitted receiving Le2.60
35 per week. Whether these weekly payments were for hospital
expenses I do not know, I cannot speculate, and as there is no claim
against the plaintiff, I cannot take either into account and set off
against the plaintiff. I therefore award the plaintiff Le60.35 as wages
or earnings due to him.
40 The plaintiff claims Le7.50 for his clothing, which was spoilt when
he had his injury. Mr. Bar]att did not disprove it or deny it. I
40
KAMAHA v. UMAIICO LTD., 1970-71 ALH S.L. 31!
S.C.
therefore award the plaintiff Le7.50. He also claims Le20.00 expended
for extra nourishment as prescribed by Dr. Kothari. Again this was
not denied or disproved. I therefore award him Le.20.00.
Secondly, general damages:
(a) Pain and suffering 5
The plaintiff says he was and is still feeling severe pains from his
hand up to the back of his neck. Dr. Kothari said he still has stiffness
of the muscles of the body. The injury is serious and crippling, and
he was seriously ill for a long time. He had two operations,
complications set in, and he had tetanus which is a painful muscular 10
ailment. I believe that the plaintiff suffered for a long time and his
injury was painful. I award him Le500.00.
(b) Shortened expectation of life
Dr. Roxy Harris, a surgeon specialist, said his injury may or may
not affect his expectation of life, but if he were to take out a life 15
insurance policy, and the history of his injury and state of health were
known, he may find his premium increased, because the risk of his not
having the normal expectation of life is greater. I believe him and
come to the conclusion that his expectation of life is shortened.
In Flint v. Lovell (2) and Rose v. Ford (3) it was decided that an 20
injury which shortens the injured's expectation of life gives a cause
of action in damages. The age of the injured may in some cases be
a relevant factor. The plaintiff in evidence said he is 30 years of
age, he cannot read nor write and does not know when he was born.
Mr. Barlatt in cross-examination did not ask him how he came to 25
know his age. I have no reason to disbelieve him, he might have
been told by someone in a position to know. The thing to value is
not length of days, but the prospect of a predominantly happy life.
Mr. Gelaga-King in evidence-in-chief did not ask the plaintiff whether
he had a wife or a family, an answer which would have helped the 30
court to determine whether the plaintiff had a happy life or not. Mr.
Barlatt on the other side was not helpful, for when he said in his
address that he could not presume to know the plaintiff's age, he overlooked
the fact that the plaintiff in evidence gave his age as 30 years.
Mr. Barlatt further said that to assess the average span of life of 35
certain persons in certain areas, evidence must be given by an actuary.
Viscount Simon in Benham v. Gambling (1) said ([1941] A.C. at
165; [1941] 1 All E.R. at 12)-"I am of opinion that the right conclusion
is not to be reached by applying what may be called the statistical
or actuarial test." Since what is to be compensated is the loss of a 40
predominantly happy life, it is to be remembered that if the injured
41
Sierra Leone-2°
THE AFRICAN LAW HEPOHTS
is a young person the future is uncertain, but in the case of a person
with settled prospects, the future is more definite. In assessing the
compensation in money, social position is not a factor. Happiness
does not depend on wealth, a poor man may be happy although not
5 rich, and a rich man with wealth may not be happy. In assessing
the compensation for the loss of a predominantly happy life Benham
v. Gambling sets a lower standard of measurement than previously
applied for loss of expectation of life, which is said to be incapable of
measurement in currency with any approach to accuracy, and
10 extravagance must be avoided. Taking everything into consideration,
the plaintiff's prospect of living a happy life is very dim, since the
state of his health and the injury which left his right hand useless
with no prospect of an improvement has rendered him incapable of
earning a living as a labourer, and it is improbable that he will be able
15 to get any employment since he is a cripple. The chance of him
having a future happy life is very poor and I award him Le400.00,
which I consider reasonable compensation.
(c) General damages
The plaintiff cannot earn a living as a labourero which was his
20 means of livelihood, with the muscular pains which he still complains
of and for which he has been receiving treatment for a long time. I
ask myself the question, what sort of work can he do for a living?
He is 30 years of age and if he lives to 50 or 60 years of age what will
he live on? If he dies within a year there will be no need to provide
25 for him. Since the award is to be made once and for all I award him
Le600.00 as general damages.
There will be judgment for the plaintiff. The order of the court
is that the defendants pay the plaintiff the following awards :
Special damage. Le. cts.
30 1. Plaintiff's wages, April 7th to June 16th, 1968,
71 days at 85 cents per day 60 . 35
2. Clothing 7 . 50
3. Extra nourishment 20 . 00
General damages.
35 4. Shortened expectation of life 400 . 00
5. Pain and suffering 500 . 00
6. General damages . . . 600 . 00
Total 1587 . 85
40 The costs of this action I award to the plaintiff.
Judgment for the plaintiff.