General Damages: Award Must Be Judicially and Judiciously Determined

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AIR FRANCE v MRS. BRENDA AKPAN

 

COURT OF APPEAL, LAGOS DIVISION

 

(NDUKWE-ANYANWU, ABUBAKAR, NIMPAR JJ.CA)

 

 

The Respondent filed this action at the High Court of Lagos State, Lagos Judicial Division, Lagos State claiming for both general and special damages for the injury, loss and lack of care she suffered from the Appellant. The Respondent stated that she purchased from the Appellant an airline ticket for the purposes of traveling from Nigeria to Hong Kong via Paris for an event. The Respondent contended that while asleep on board the Appellant’s aircraft enroute Paris, a heavy object fell from the luggage compartment on her head thereby sustaining serious injury. The Respondent contended further that the Appellant after landing her aircraft in Paris drove her to the hospital in town and left her there and took no further steps in relation to her health and her final destination being Hong Kong. In its defence, the Appellant argued that it was not responsible for the injury sustained by the Respondent on board her aircraft claiming that the Respondent had been ill prior to her boarding.

 

The trial judge upon consideration of all the exhibits and testimonies of the witnesses awarded both special and general damages as claimed by the Respondent. Dissatisfied with the judgment particularly the amount awarded as general damages, the Appellant appealed to the Court of Appeal, Lagos Division urging the court to dismiss the judgment of the trial court.

 

Parties raised various issues for determination, and the court found the under-mentioned apt for the determination of the appeal:

 

“Whether it was proper that the lower court awarded damages in favour of the Respondent without applying the provisions of Articles 20 and 21 of the Warsaw Convention”

 

Learned Counsel to the Appellant submitted that by the combined provisions of Articles 20 & 21 of the Warsaw Convention, the carrier would be absolved of liability if it is established that the injury would not have been avoided by reasonable precaution. Counsel argued that the injury sustained by the Respondent on board the airline was due to loss of consciousness traceable to the medical condition (Malaria) of the Respondent. To that extent, the Appellant submitted that he is not liable to damages for the injury sustained as it was not caused by the Appellant.  On the issue of the amount awarded by the court as quantum of damages the Appellant argued that there was no evidence placed by the Respondent in court to show that the amount awarded as damages are commensurate with the injury suffered.

 

Learned Counsel to the Respondent reacting to the issue of award of damages argued that special damages must be specifically pleaded and proved, which the respondent did by oral and documentary evidence. Counsel urged the court to take cursory look at both the exhibits tendered as well as the evidence of the Respondent at the lower court. Counsel further argued that it is the contention of the Respondent that the trial judge has not exceeded the limit of damages described by Article 22 of the Warsaw Convention and therefore the amount awarded is well within the power of the trial court.

 

The Appellant in his reply brief submitted that the amount of $20,000 (Twenty Thousand Us Dollars) awarded is well above the limit of 250,000 French Franc described by the Convention and that the trial court has not satisfied the conditions laid down by the Supreme Court for exceeding the limit under the convention.

 

Unanimously dismissing the appeal, the court went on to say:

 

“The Learned trial Judge had only granted the amount proved in special damages. The learned trial Judge granted N130,000 for hospital bills as per Exhibit 5 and also a taxi fare of 430 French Francs. I do not find these as perverse and I will therefore allow them to stand.

 

The courts have held that there is no fixed rule by which to assess general damages. It is indeed difficult to ascertain for instance, what will compensate a man for the loss of an eye or a limb, or for pain and suffering; or disfigurement loss of amenity or enjoyment of life; or shortened expectation of life. The matter is therefore at the discretion of the court to award a fair and reasonable compensation having regard to the circumstances of the particular loss. See Okuneye vs Lee (Supra).

 

Thus, where injury is to be compensated by damages, the court should, as nearly as possible, get at the sum of money which will put the party who has been injured (or who has suffered) in the same position as he would have been in, if he had not sustained or suffered the injury for which he is now to get compensation Anumba vs Shohel (1965) 2 Afl NLR PO 183.

 

Question of general damages falls within the judicial discretion of the court. This means that the courts are to act according to the rules of reason and justice, and not according to private opinion and according to law; not humour See Re Alase (2002) 10 NWLR Pt 776 pg 553. A court in all cases has to exercise its discretion judicially and judiciously see Offodile vs Eqwutu (2006) 1 NWLR pt: 961 PO 421. A proper exercise of discretion should be according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular. It must be upon facts and circumstances presented to the court, from which it must draw a conclusion governed by law. See: Union Bank of Nig Pic vs Adjarho (1997) 6 NWLR pt 507 PO 112 Re Alase (supra).

 

The trial Judge exercised his discretion judicially and judiciously. He had evaluated the facts and evidence placed before him in exercising his discretion. I have no reason to upturn this. The courts have always frowned at tort feasors who have not shown any remorse for the harm they have caused. The Appellant never enquired after the Respondent as soon as she was wheeled to the airport clinic. A letter expressing their regret for what might have happened to the Respondent might have assuaged the Respondent. Appeal is unmeritorious and therefore dismissed. I affirm the judgment of the lower court including the special and general discretion by the lower court. I will, therefore, leave the general damage as assessed by the lower court.

 

In effect, this issue is also resolved against the Appellant. This court will not interfere with a proper exercise of damages awarded therein and the interest of 6% awarded. Cost of N5O,OOO is awarded to the Respondent against the Appellant.”

 

Counsel:

S E Elema, Lanre Ogunyemi for the Appellant

 

This summary is fully reported at (2015) 11 CLRN

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