Hawa Ngombui v James W. Hall (CC 323 of 1961) [1963] SLSC 55 (6 September 1963)

f!A WA NGOMBUI JAMBS W. HALL . [SUPREME COURT] v. [C.C. 323/61] PlaintifJ Defendant -Negligence--Whether motor car driven by defendant's servant or agent- Tort h" . f . "d f P· of of owners zp as przma ane evz ence o agency. ' 0 es--Special dllmages-General damages-Pain and sutJerinJr""'LOtiS of Damag . f '"j l . d a· i amenities--Loss of expectaJton o . •.1 e--, nconvel!J&nce an 1scom wt. On May 6, 1959, plaintiff alighted from a bus at Savage Square, Freetown. After the bus had moved away, she crossed Kissy Road to reach Ginger Hall, where she lived. While she had one foot on the road and the other on the sidewalk, she was hit by a motor car belonging to the defendant. The car hit her right foot and she fell down on the road. She felt pain and was dizzy. She was taken to Connaught Hospital, where she remained for 20 days. When she left the hospital, she had to be taken home in an ambulance. When she entered the hospital, her right foot was put in plaster, and she still had the plaster on when she was discharged. When the plaster was removed, she felt some pain in her foot and had to use a walking-stick. Because of her injury, she was unable to continue her petty trading or to pray in the mosque. A doctor who examined her about four years after the accident found that her ankle was still swollen, that there was a permanent limitation on the movement of her right foot and that arthritis had set in. Plaintiff brought suit against defendant for damages for negligence. Defendant admitted that he was the owner of the car, but there was no evidence as to who was driving the car at the time of the accident. Held, for ihe plaintiff, (1) where a plaintiff, in an action for negligence, proves that damage has been caused by the defendant's motor car, the fact of ownership of the motor car is prima facie evidence that, at the material time, it was being driven by the owner or by his servant or agent. (2) Plaintiff was entitled to recover £140 by way of special damages and by way of general damages. referred to: Barnard v. Sully (1931) 47 T.L.R. 557; Benham v. lfwnbling [1941] A.C. 157. Gyrus Rogers-W right for the plaintiff. E. Livesey Luke for the defendant . . MARKE J. The plaintiff's claim is for damages for injuries she received \Vtlen she was hit by car C.74 on May 6, 1959. The defence is a denial of negligence on the part of the defendant and in ·paragraph 5 of the statement of defence the following appears: "5. The defendant further says that if any accident did happen to the plaintiff as is alleged she could and would by the exercise of ordinary care and discretion have avoided the same. Particulars of negligence on the part of the plaintifJ The plaintiff was guilty of negligence in that she suddenly and without warning stepped backwards off the footpath into the motor road and 61 Freetown Sept. 6, 1963 Marke J. s. c. 1963 NGOMBUI v. HALL. Marke J. collided with the defendant's motor car without giving the defendant any any sufficient opportunity of avoiding the said accident." or The plaintiff's case is that she alighted from a bus at Savage Square. Tha• after the bus had moved away she crossed Kissy Road to reach Ginger lial'• where she lived. That while she had one foot on the sidewalk and t.he othe 1 ' on the road, she was hit by a motor car. The car hit her right foot and sh~ fell down on the road. She felt pain and was dizzy. She was taken to Con­ naught Hospital where she remained-according to her-" for some tirne " She tendered her discharged ticket, which was admitted in evidence and mark~d " A." From entries on that ticket she was admitted into hospital on May 6, 1959, and discharged on the 26th day of the same month. She said that her right foot was put in plaster at Connaught Hospital and she still had the plaster on when she was discharged. And when the plaster was removed she felt some pain in her foot and had to use a walking-stick to enable her to walk. In cross-examination she denied that she stepped into the road without looking or that she feil on the bonnet of the car. Her witness, Dauda Seisay, said on oath that he saw plaintiff when she alighted from the bus and also when she was hit by a car driving towards Eastern Police Station. He conveyed the plaintiff to Connaught Hospital in another car, and according to him the plaintiff was unable to talk. In cross-examination he said that the accident took place at about 12 mid-day but neither the road nor the footpath was crowded. The next witness for the plaintiff was Dr. Aubee, who examined the plaintiff on March 8, 1963, that is, about four years after she sustained her injury. His findings were: 1. Right leg and ankle swollen. 2. Upward movement of right ankle was limited to 30 degrees when it should have been 45 degrees. 3. Downward movement of right ankle was limited to 10 degrees when it should have been 55 to 60 degrees. The doctor explained that this restriction on her mobility will diminish her ability to walk and that it will be a permanent disability. He said that X-ray examination showed that both bones on her right leg had united ; but there was backward angulation of the bones of her right leg, which should have been straight. He said that there was arthritis of her right ankle which could have been caused when she was laid up. In cross-examination he admitted that the plaintiff was quite an old woman but stated that the limitation of movement was not due to her age. This dosed the plaintiff's case. The defendant was not in court but a police constable, 494 Cole, was called as a witness for the defence. He said that the car which hit the plaintiff was traveiling from Eastern Police Station to Kissy Road cemetery. That the plain· tiff had both feet on the road when she was hit. He said he made a brief note of the incident; but he had not the note with him. This dosed the defendant's case. I do not accept the evidence of the police constable. He began his evidence with the words " As far as I can remember." If he was present at all when the plaintiff sustained her injury he was obviously giving his evidence from his recollection .of what had happened about four years ago. Although he said that he was on patrol duty at the time, I do not believe he made any note of 62 ened. Although he was a police constable on duty at the time, and what h7?p constable should have known that court proceedings might result, he as a pO!~~e did nothing more than to see the plaintiff taken to hospital. His app~rent .:n of the direction in which the offending car was travelling is e~ollec.l I 1 li '- · f h 1· r ." .·• ly inaccurate. pace no re ance on tue evidence o t e po 1ce con- oovious nA have come to the conclusion that his recollection of what happened stable ~ab; relied on. I accept the evidence of the plaintiff as to what hap­ ca~~~· to her on May 6, 1959. Though there is a slight discrepancy between pen"u ·dence and that of her witness, I believe the plaintiff gave a correct her ev: of the incident and find that the car C.74 negligently hit her as she "ccoun• . . ;ad one foot on th~ s1dewalk and the other foot o~ K1ssy Road. Mr. Luke, in his address, stated that ownership of car C.74 had not been -n~ed. The first paragraph of the statement of defence makes it unnecessary P<~ -nv~ this as in that paragraph the defendant admits that he was the t" !Ji'v .,.. ' ' ":"istered owner of the car. .~,Mr. Luke next argued that it had not been proved who was driving the par at the material time. ~ -In Bamard v. Sully (1931) 47 T.LR. 557 it was held that, where a plaintiff, in an action for negligence, proves that damage has been caused by defendant's motor car, the fact of ownership of the motor car is prima facie evidence that the motor car, at the material time, was being driven by the owner, or by his servant or agent. The defendant having admitted in his pleading that he was the registered owner of the car, in the absence of any evidence as to who was driving at the material time I must hoid that the defendant or his servant or agent was driving the car at the material time. I therefore find as a fact that the defendant negligently drove his car agamst the plaintiff, as a result of which she sustained certain injuries. As regards special damages there is no evidence that the plaintiff paid anything for the 20 days she was in hospital ; and I therefore allow nothing for hospital expenses. T'ne plaintiff said that she paid on the advice of her solicitor five pounds (£5) to a black doctor at Connaught Hospital. That payment has not been diSputed. I allow it. The plaintiff in cross-examination said that at the end of the month she made £2 a week profit out of her petty trading and in other weeks £1 a week profit. That, to my mind, seems a reasonable amount, and allow the plaintiff, by way of loss of profit during her illness, at the rate of a month. For 27 months which elapsed between the date of her injury and date on which the writ of summons in this action issued, that will amount T;,'J.ough there is a dai.tn for expenses and for nourishment, no evidence was on those items, although the plaintiff must have had some extra nourish­ I can, however, not speculate on what was actually spent on those items, and allow nothing in respect of them. This brings me to the clai..'TI for general damages. I propose to consider the amount of general damages to be awarded under four main heads: 1. Pain and suffering. 2. Loss of amenities. 3. Loss of expectation of life. 4. Inconvenience and discomfort. · Pain and suffering. From the evidence before me the plaintiff was an old ~~man. Though there is no evidence of her age she did not appear to be veww 60 years of age. For such a person to have been knocked down by a motor vehicle there must have been considerable pain and suffering. The 63 s. c. 1963 NOOMBUI v. HALL. Marke J. s. c. 1963 NGOMBUI v. HALL Ma:rke J. plaintiff said that when she fell into the road she was dizzy. Her witness sa·...o . c 1" that when she was put m the car. that c~n~eyed her to o?naught Hospital she was unable to talk. She was m hospital for 20 days With her right fo t in plaster and was discharged from hospital with the plaster still on. She h:d to be conveyed home after 20 days in hospital by an ambulance and she said that while she had the plaster on and even after it had been removed sh experienced pain in her foot. Dr. Aubee, who examined her about four yeare after her injury, said that although X-ray examination revealed a union of th: bones of the foot her ankle was still swollen-that there was limitation on the movement of her right foot and arthritis had set in. From this it will be fair to infer that up to now, that is, four years after the accident, she is still suffering pain. I would award £400 damages under this head. Loss of amenities. Under this head must be considered the fact that the plaintiff, because of her injury, can no longer engage in her petty trading Which was her source of livelihood. She now uses a stick to enable her to move about and has to remain at home. Under this head I allow £100. Loss of expectation of life. Simon L.C., in Benham v. Gambling [1941] A.C. 157, laid down the principles to be observed in awarding damages under this head, and expressed the view that a lower standard of measurement than has hitherto prevailed should be applied. Whatever doubts may arise as to this lady's expectation of life before she had this accident it will be fair to infer that for one who had been sufficiently active to obtain her stock of wares in Freetown to have to spend her day or most of her day at home would naturaUv shorten her life. I allow £100 under this head. • Inconvenience and discomfort. This lady is a Muslim. Because of her injury she can no longer pray in the mosque. She cannot climb steps. She said that she climbed the steps leading to her solicitor's chambers. She after' wards had to ask him to meet her at the bottom of the steps. That but for this case she would not have come out on the day of the trial. The doctor said that her disabiiity was permanent so that she would for the rest of her days be subject to the inconvenience and discomfort of limitation of movement of her right foot. I award £200 under this head. Summing up what I have allowed under the four heads, we have £400, £100; £100, £200, making a total of £800 for general damages. The order of the court is : 1. The plaintiff succeeds in her claim. 2. The defendant to pay the plaintiff £140 by way of special damages .and £800 by way of general damages, making £940. 3. The defendant to pay the costs of this action. Costs to be taxed.