This appeal has arisen from the dissatisfaction of the Plaintiff/Appellantwith the judgment of the High Court–Kumasi (Commercial Division) dated the 30^th day of October, 2015.

For brevity, the Plaintiff/Appellant would hereinafter be referred to as the Appellant, and the Defendant/Respondent, as the Respondent.

The Appellant commenced this action against theRespondent at the High Court (Commercial

Division) – Kumasi for the following reliefs (as found on pages 2 and 107 of the Record of Appeal):

The sum of GHC 400 000.00 as General and Special Damages for the injuries the Plaintiff suffered on the 28^th of April, 2009 when the Plaintiff hired the Defendant’s timber truck numbered AS 5471-X to cart his timber but unknown to Plaintiff, Defendant’s Driver was unlicensed and the vehicle was also not insured; which the Defendant’s Driver drove negligently and run into a ditch resulting in serious injuries to the Plaintiff.

The part of judgment complained of, the grounds of appeal,as found on pages 117 to 118 of the

Record of Appeal are as follows:

Part of Judgment Complained of:

The quantum of damage assessed at GH¢20,000.00 only.

Quantum of cost awarded at GH¢2,000.00.

Grounds of appeal

i. The Learned High Court Judge erred when he awarded compensation/ damages of only GH¢20,000.00 after making a finding that the Defendants vehicle had no insurance cover, had no road worthy certificate, that Defendant employed an unlicensed driver.

The Learned High Court Judge erred when he awarded only GH¢20,000.00 as damages when he made a finding that he saw the Appellant being carried out and into the court.

The Learned trial Judge erred when he awarded the Plaintiff only GH¢20,000.00 when he made a finding that the Defendant’s vehicle No. AS 5471-X ought not to have been on the road at all.

The Learned Judge erred when he failed to award special damages after holding that the Plaintiff has attached a bundle of receipts.

Further grounds of appeal will be filed when the records is available.

This appeal raises or puts not in contradiction the facts of the matter. This may be explained as the appeal is raised by an Appellant who succeeded at the trial court level and obtained judgment which awarded him damages of GHC 20 000.00, as well as cost of GH¢2,000.00. However, a brief recap of the facts will throw more light on all aspects of this matter.

FACTS

The parties in this matter are the Appellant, who was 39 years at the time of the incidence was a timber merchant, whilst the Respondent was a timber contractor who owned a truck which is the subject of this suit.

The Appellant asserts that he contracted with the Respondent through a friend of the Appellant called Sammy (Omar Mohammed). This contract was to hire the Respondent’s truck with number AS5471-Xto convey logs of timber to Diaso.

On their way back, with the Appellant, the Respondent’s driver and two others on board- they got involved in an accident in between Mim and Biani close to Goaso at a place called KwabenaKuma. The Appellant sustained serious injuries and was rushed to the Goaso Government hospital for treatment, but due to the serious nature of his injuries he was transferred to the KomfoAnokye Teaching Hospital, for further treatment.

In the Statement of Claim (as amended) the Appellant provided for the particulars of injury caused to his person (as found in paragraph 14 of page 35 of the Record of Appeal) as follows;

i. Occipital lacerations

ii. Loss of consciousness

iii. Inability to move both lower limbs

iv. Wedge compression fracture of li vetabra

v. Spinal injury with displaced bone fragments

vi. Loss of genital functions.

The appellant further averred that he received intensive care at the hospital from the 30^th of April

2009 till he was discharged on the 4^th day of September 2009 and continued with the treatment as an outpatient.

The Appellant averred that during the course of investigation, it was found that the insurance certificate and the road-worthy certificate had expired and also that the driver was not having a driving license.

The appellant attributed the accident to the negligence of the Defendant’s driver, servant or employee. He described the particulars of negligence as follows;

I. The Defendant’s driver or employee or servant failed to control his vehicle.

II. The Defendant’s driver was incompetent to drive as he failed to produce his driving license to the Police.

III. Res Ipsa Loquitur.

As found on same page of the Record, the Appellant provided for details of an account of his expenditure in aid of treating himself as follows;

Medical bills                                – GH¢17,500.00

Transportation                            – GH¢16,300.00

Feeding                                       – GH¢15,000.00

Herbal medicine                           – GH¢2,500.00

Miscellaneous expense               – GH¢8,000.00

Cost of Medical Report                – GH¢500.00

Cost of Police Accident Report    – GH¢300.00

            Total   – GH¢60,000.00

Plaintiff claims same as special damages.

The respondent in his Statement of Defence found on page 12 of the record denied generally the averments of the Appellant except to accept ownership of the timber truck with registration number AS 5471 X and also conceded that both the insurance and road-worthy certificates had expired as at the time of the accident. The Respondent stated that sometime in April 2009, one KudjarSumiala rented his timber truck for two days but ended up using same for four days without his knowledge, consent and approval. He, the Respondent, provided the service of his own driver to assist the said KudjarSumiala in carting his logs for the two days that he had rented the vehicle. The Respondent alleged that his driver left the vehicle under the care of the said KudjarSumiala after the two-day rental period had elapsed because he had to attend to an emergency call; namely that his mother was ill and had been rushed to a hospital at Sunyani.

The Respondent further said that instead of the said KudjarSumiala returning the vehicle to the Respondent he failed to do so but rather continued to use the vehicle in carting his logs without the knowledge, authorization and consent of the Respondent by using his own driver called Kwabena Paul. The Respondent in paragraph 9 in his Statement of Defenceaverred that he does not know anyone called KwadwoAppiah (the Plaintiff/Appellant herein) let alone to have rented his vehicle number AS 5471-X to him. Respondent emphatically stated that he also has not employed anyone by name Kwabena Paul. The Respondent contended therefore that if it was the said Kwabena Paul who was driving the timber truck number AS 5471-X when the accident occurred then he was on a frolic of his own. Respondent added therefore that he cannot be held vicariously liable when KwabenaPaul who purportedly caused the accident was not driving the vehicle number AS5471-X in the course of his employment. Likewise, if the appellant was in the vehicle at the time of the accident then he was also on a frolic on his own because he had neither rented the vehicle nor was he even a paid passenger at the time of the accident. Therefore, the Respondent contended that the Appellant’s action was not only frivolous but also incompetent.

However, at page 74of the Record, specifically in the Accused’s opening of his Defence, he confirmed that the driver of the accident was his driver as he stated:

“I informed the policeman in charge of the case that I wanted to take my driver away…

“My driver had license. When the accident happened, my driver could not find it…”

A further cross examination by the Prosecutor stated:

“Q: Where is your driver now?

A: I cannot find him. I went with the cop to look for him but to no avail

Q. when you employed him did you take the time to know where he comes from?

A. No, somebody gave him to me”.

Thus one can surmise that his later testimony was an afterthought designed to escape responsibility. The trial judge duly addressed this issue on page 114 of the Record of Appeal in terms of the effect of the denial of this fact (of the driver being the Respondent’s driver).

A further suit was instituted at the High Court (Civil Division) to claim damages for the injuries caused the Appellant as a result of the accident (one which resulted in this present appeal).

It seems to me that (at page 115 of Record) the trial judge found the Respondent negligently liable by virtue of placing on the road a truck with no valid documents covering same, and issuing orders for an unauthorized driver to drive same; thereby rendering him vicariously liable.

The crux of this appeal, therefore, is for the Appellant to secure a higher amount of damages than what the trial court awarded to him considering the degree of injury caused to his person and otherwise.

The part of the judgment which is being appealed as found in the judgment (per page 116 of the

Record) is reproduced below:

“In the circumstances I shall award him general and special damages of GHC20,000 against the defendant since there is evidence before me that the plaintiff incurred some expenses on his medication. Cost of GHC2000.00 against the Defendant.”

In effect, the Appellant is inviting this appellate court to reassess the damages awarded and to grant a more ‘befitting’ one. This court is called to delve into the principles governing the award of special damages and general damages.

Consideration

Rule 8 of C.I 19 states that:

“An appeal to the Court shall be by way of rehearing and shall be brought by a notice of appeal.”

Her Ladyship, Georgina Wood, CJ in the case of Agyeiwaa vs. P & T Corporation (2007-08) SCGLR

968 @ 989, stated that:

“The well-established rule of law is that an appeal is by way of rehearing and an appellate court is therefore entitled to look at the entire evidence and come to proper conclusions on both the facts and the law”.

In the case of MamuduWangara vs. GyatoWangara [1982-83] GLR 639, the Court, per Abban JA, as he then was, explained the concept to mean that the appellate court was virtually in the same position as if the hearing were the original hearing, and might review the whole case and not merely points as to which the appeal was brought. This means that in this judgment, this court is in a position to do what, in our view, the trial court ought to have done but failed to do.

Counsel for the Appellant argues that the court below failed to properly evaluate the evidence on its merit and thereby arrived at an erroneous decision.

It is trite that an appeal to an appellate court is a way of rehearing and the appellate court, in addressing same, ought to consider the entire record before it. This position of the law was amply demonstrated in the case of Tuakwa v Bosom [2001-2002] SCGLR 61, where the court held that;

“It was incumbent upon the appellate court in a civil case to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision so as to satisfy itself that in a balance of probabilities the conclusion of the trial judge are reasonably or amply supported by the evidence.”

It is also the duty of the Appellant to point out lapses in the judgment which when corrected will enure to his benefit.

As stated earlier, this appeal hinges on the issue of the award of damages. As rightly provided by the counsel of the Appellant, the case of Bradford vs. Pickels (1895) AC587states that:

“The heads or elements are two, pecuniary and non-pecuniary loss. Non-pecuniary comprises all losses which do not represent an inroad upon a person’s financial or material assets, such as physical pain or injury to feelings “whilst” pecuniary loss comprises all financial and material loss incurred such as loss of business profits or expense of medical treatment…”

It is therefore trite that assessment for damages for injuries, inter alia, can be categorized under pecuniary and non-pecuniary damages.

Pecuniary losses thereby cover medical expenses, travelling in and out of hospital, or the like. Hence, an actual loss of earning capacity and other gains or benefits which, but for the injury, the plaintiff would have had and any other expenses he had been put to as a result of the accident would also be added.

Non-pecuniary losses, on the other hand, cover loss of amenities, pain and suffering, and loss of expectation of life.

With a look into the definitions of pecuniary and non-pecuniary damages, and what both entail, it can be said that pecuniary awards are amenable to arithmetic calculation to a fair degree, whilst non-pecuniary awards are more inclined to the usage of discretion.But in consonance with good conscience, and what is fair and just, determination must be adequate, fair and reasonable for the loss arising out of the injury.

This would serve as a guide to the court in determining the degree of award assessment.

In the case of Samuel Awuku (suing per his next friend) Emmanuel OwusuvrsSulemanMamuni and another [2014] 70 GMJ at 144 (CA)

The Facts of this case arethe Plaintiff/Respondent in this suit is a minor of about twelve (12) years old; for which reason he initiated this suit by his next of kin. By his averment, the Plaintiff/Respondent was involved inan accident in 2003 (at 3 years old) when a cargo truck loaded with foodstuffs from the north and which was driven by the 1^st Defendant/Appellant recklessly knocked down the Plaintiff. As a result, the Plaintiff sustained massive and extensive injuries leading to some permanent deformities which the Plaintiff may not recover from for the rest of his life. After series of medical treatment and several surgeries, the doctors and specialist reported that the Plaintiff had his right pheuma fractured and the soft tissues, that is, the muscles soft statanal skin tissues were all ranched from morrin and the attachment to the underlined skeleton and circulation to the leg was absent. In other words, the blood vessels have been severely damaged leading to lack of circulation to the leg. Hence, that particular leg had to be amputated. Besides, the Plaintiff also lost some skin, his penis, testis and his scrotum. At the instance of these sad realities, the Plaintiff – who was minor at the time of the accident and at the commencement of this action, brought the action that cumulated into this appeal, through his next friend against the Defendants; claiming damages for the series of injuries aforesaid. After the trial, the court below found the Defendants liable and gave judgment against them as follows (a) the sum of GH¢179.30 for medical expenses, (b) interest on (a) from July, 2004 to date of payment, (c) sum of GH¢10 million as general and compensatory damages and (d) cost of GH¢10,000. Although the Defendants are not contending the fact that the Plaintiff is entitled to damages, they are however not satisfied with the quantum of damages awarded by the trial court, hence, they have approached this court for a reversal and reduction of the award imposed by the trial court. The Defendant/Appellant argued that, in arriving at this award, the trial judge erred in not resorting to comparative awards by way of comparing other cases and thereby achieving some level of uniformity. Appellant also faulted the trial judge’s description and conclusion that the Plaintiff has been rendered sub-human by the accident and submitted that the use of that approach was purely sentimental and same eventually misled the trial judge into making the excessive award to the plaintiff. In urging this court to declare the compensatory damages awarded as patently excessive, Appellant suggested that this court should consider what the law has come to recognize as “head of damages” so that same will be applicable to the assessment of award which the court would eventually come up with.

On the different categories of heads usually considered by courts in assessment of quantum of damages, the learned judgeOfoe JA stated that:

“The authorities are settled that heads for assessment of damages for injuries, even though not closed, can be categorized under pecuniary damages and non-pecuniary. The most common of pecuniary damages has to do with medical expenses, travelling in and out of hospital or the like. In this area we may add actual loss of earnings, loss of earning capacity and other gains or benefits which but for the injury the plaintiff would have had and any other expenses he had been put to as a result of the accident. Under non pecuniary damages we have loss of amenities of life, pain and suffering, and loss of expectation of life. It is these two categories that one is expected to examine and apply to the specifics of case in determining the appropriate monetary award to make to an applicant. While it is admitted that some of these claims i.e. the pecuniary awards are amenable to arithmetic calculation to a fair degree non pecuniary awards are not. But the general objective is to provide what will be accepted generally as adequate, fair and reasonable compensation for the loss arising out of the injury.Achieving this objective has never been an easy task as was confessed to by His Lordship Amissah JA in the Court of Appeal case of TwumvrsOkyere and TwumvrsAmpofo [1975] 2GLR 424 at 425.

It is therefore trite that assessment for damages for injuries, inter alia, can be categorized under pecuniary and non-pecuniary damages.

The issue in the case of Samuel Awuku (suing per his next friend) Emmanuel OwusuvrsSulemanMamuni and another (supra), similar to that before this appellate court, is whether the trial judge adequately considered the evidence adduce before arriving at the damages and cost awarded, which the Appellant considered manifestly excessive (as opposed to what lies before this appellate court that the damages and costs are manifestly inadequate).

I would like to comment on the case of Stephen DiabDarko vs. Chirano Gold Mine (Court of Appeal) suit No. 158/2011 dated 18^th April, 2013.

In that case, the Plaintiff was an employee of the Defendant Company. The Plaintiff worked with the elution section of the processing plant of the Defendant mining company. The Plaintiff’s work entailed the boiling of chemicals for ‘stripping of gold’ and the taking in a two – hourly interval, pressure and temperature readings at the top of the elution strainer column. He worked for 12 hours a day that is from 7:00am to 7:00pm. On 31^st December, 2007 when the Plaintiff went to take the last readings at the top of the elution strainer column for the day, an explosion occurred from the elution strainer which burnt some parts of his body. He was burnt by the mixture of hot cynide and caustic soda exploded from the elution strainer. He was admitted at the KomfoAnokye Teaching Hospital until 23^rd January, 2008 when he was discharged to the Out Patient Department.

He maintained an action against the defendant, his employers, for failing to provide safety free environment for him at the High Court. The Plaintiff was found to have negligently contributed to the accident as his contribution was assessed at ten percent (10%). The Defendant’s contribution to the accident was assessed at ninety percent (90%). The Defendant dissatisfied with the judgment of the trial High Court filed an appeal against the judgment. The three (3) grounds of appeal filed by the defendant are as follows:

a. The trial Judge erred when he held by the implication sustained on the job by the Plaintiff on 31^st December, 2007 was caused by personal negligence or willful act of the Defendant/Appellant.

b. The judgment of the trial Judge cannot be supported by the Plaintiff’s evidence adduced to prove that it was the Defendant’s personal negligence or willful act that caused the Plaintiff’s injury.

c. The quantum of damages and costs awarded by the trial Judge was not only (SIC) excessive but that award in particular is not supported by totality of the evidence placed before the trial Judge.

His Lordship Dennis Adjei (JA) held that:

“The ground (c) of the appeal is that the damages and costs awarded by the trial Judge was not only excessive but that award in particular is not supported by the totality of evidence placed before the trial Judge. The only submission made by the Defendant on grounds (c) of the appeal was the Plaintiff was given a whopping sum of GH¢ 180000.00 and that it is not supported by the evidence led by the Plaintiff.

The Plaintiff sustained serious injuries and according to him he cannot have sexual intercourse with his wife. This evidence was not controverted by the Defendant. The medical report issued on the Plaintiff too stated that erectile power of his penis decreased leading to a weak erection and an inability to penetrate during sexual intercourse. The permanent disfigurement of the Plaintiff was assessed as thirty percent. The percentage of non-functional loss is of genital organ (erectile dysfunction) was assessed as seventy - five percent. The purpose of damages is compensatory. It is not meant neither to punish the tortfeasor nor confer a windfall on the victim. The sum of GH¢200,000 awarded could not compensate the plaintiff for the injury sustained from the accident. I am of the opinion that the award of GH¢ 180,000 by the trial High Court is fair and was exercised in accordance with law and should be affirmed.

The costs of GH¢ 7,000 assessed in favour of the plaintiff is neither harsh nor excessive. The parties called witnesses and had a complete trial. I would dismiss ground (c) of the appeal as without merit.

The judgment of the trial High Court dated 9^th December, 2010 is hereby affirmed”. [SIC]

One realizes the similarities in this case and the instant appeal. Whereas Stephen Darko was assessed at 70 percent incapacity of erectile dysfunction, the Appellant is assessed at 100percent incapacity.Clearly the Appellant has no hope at all about performing any sexual activity to wit, having sexual intercourse.

For purposes of clarity, the final medical report (as found at page 119 of the Record of Appeal) will be reproduced below:

“Mr. KwadwoAppiah was involved in a road traffic accident as a passenger on a truck on the Mim-Goaso Road. He was rushed to Goaso Hospital in the BrongAhafo Region. Four days after accident he was referred to the KomfoAnokye Teaching Hospital, i.e. on the 2^nd May 2009 with occipital lacerations and inability to move both limbs. There was history of loss of consciousness after the injury.

On examination here it was found that KwadwoAppiah had occipital lacerations and loss of power and sensation in the lower limbs. A diagnosis of a spinal cord injury was made and confirmed by a CT scan which showed a wedge compression fracture of the first lumber vertebra (L1) with displaced borne fragments.

A decompression of spinal surgery was done on the 26^th August 2009. He was discharged on the 4^th September 2009 and has been attending physiotherapy sessions on OPD basis. His lost outpatient clinic review was on 16^th September 2010 and sensation has returned in the lower limbs. His urethral catheter is now out and the power in the lower limbs has improved to 2/5.

We assess his loss of genital functions as one hundred percent (100%), loss of mobility as fifty percent (50%) and psychological injury as sixty percent (60%).” [SIC]

In the instant case before us, it is not in dispute that the Appellant sustained serious injuries as a result of the accident. Indeed, the records show that he was trapped in the truck for several hours before being released from the wreckage and sent to the Goaso Hospital and later on transferred to the KomfoAnokye Hospital.

There is no gainsaying the fact that the final medical report as found on page 119 of the Record of Appeal also indicates that: “KwadwoAppiah had occipital lacerations and loss of power and sensation in the lower limbs”. Even after surgery of the spine on 26^th August 2008, the doctors assessed his loss of genital functions as 100%, loss of mobility as 50% and psychological injury as 60%.

The Appellant, in submitting his Evidence during the trial (as found at Page 40 Record of Appeal), also gave a graphic testimony of his injury when he stated:

“Whilst conveying the wood on reaching KwabenaKuma, the car was involved in an accident.

“I got trapped in the car. I sustained injuries as a result of the accident for which reason I have never been able to walk again. I cannot also get erection I am always to ease myself in pampers. I cannot also use my left wrist.”

One may take judicial notice of the cultural environment in which we live where sexual performance or the ability to use one’s genital organs is very crucial. Indeed, some people believe that when one is deprived of the genital functions, as the Appellant has in the instant case, then there is no reason to live. Such a person goes through psychological and mental trauma and may be the subject of ridicule. He cannot have sex again. As it is, he will have to contend with the lone child he had before the accident.

Therefore, applying the principles as enunciated in the above cases, one is fortified that the Appellant deserves to be awarded for pain and suffering as a result of the accident. It is regrettable that the trial court failed to consider the parameters necessary in the award of compensation to the Appellant.

In making this award, one also takes cognisance of the fact that the Appellant was 39 years at the time of the incident and taking the public sector retiring age of 60 years (although the Appellant was privately employed as a timber merchant), he would have an expected working life of twenty-one years.

The Appellant did not provide his monthly or annual earnings, therefore, a specific amount cannot be provided under the head of loss of future earnings. Be that as it may, it is not in dispute that he was gainfully employed as a timber merchant.

On the issue of cost, the trial took three years (from 20^th June 2012 to 2015). There was also the criminal trial at the Circuit Court in 2011.

I therefore make an award, for the non-pecuniary losses of the Appellant such as his pain and suffering, loss of amenities and loss of future earnings as a timber merchant, of GH¢ 140 000.00. I also make an award of GH¢ 10 000.00 for the Appellant’s pecuniary losses such as his medical expenses and travelling cost in and out of hospital.

In conclusion, the appeal succeeds in its entirety and the judgment of the trial court dated 30^th October 2015 is hereby set aside.

Cost of GH¢10,000.00 awarded to Appellant.