Tayab v Kinanu
Court of Appeal, at Nairobi
March 30, 1983
Law, Potter & Hancox JJA
Civil Appeal No 29 of 1982
Negligence - contributory negligence - elements of contributory negligence by a minor - whether a minor is capable of contributory negligence - assessment of contributory negligence - apportionment of blame - principles applicable.
Appeal - powers of the appellate court - on findings of fact of trial court - extent to which the appellate court can interfere with findings of fact of trial court.
Damages - quantum of damages - award of - assessment of - factors to be taken into consideration - award of general damages for pain, suffering and loss of amenities.
The respondent was a girl of nine years of age who sued the appellant for damages as a result of being struck by a motor car driven by the appellant. The respondent had suffered a skull fracture and bruises on her head and hip. She had recovered from all her injuries, save that she developed epilepsy some months later. Her examining doctor, however, gave evidence that the epileptic fits could be controlled with medication. The evidence showed that the accident had occurred along a stretch of road used by children from various schools adjoining it and the appellant was a frequent user of the road. The respondent’s evidence had been that she had looked right, then left and then right again and started crossing the road at a walk and she had not seen the appellant’s car until it knocked her down. The appellant, on the other hand, stated that she had not seen the respondent before she was hit and that she had appeared to be in a hurry. Police evidence showed that there were 14 feet long brake marks made by the appellant’s car five feet from the appellant’s near side of the road. The trial judge, who had found the young respondent to have the requisite road sense, also found her to be entirely blameless as there was no evidence on which her contributory negligence could be based and awarded her Kshs 750,000 for pain and suffering and loss of amenities. The appellant appealed to the Court of Appeal.
1. The appellate court will not interfere with a judge’s findings of fact based on his assessment of the credibility and demeanour of witnesses who gave evidence before him, unless it was wrong in principle.
2. The decision as to whether or not a child can be guilty of contributory negligence depends on the circumstances and the particular child. A child cannot be expected to have the road sense of adults but her guilt ought to be assessed according to her knowledge and ability on road precautions (Gough v Thorne (1966) WLR 1387).
3. In making a decision on contributory negligence on the part of a young child the court should take into account the child’s ability to understand and appreciate the dangers involved on the road. The respondent in this case was a young child but the evidence at trial revealed that she had the requisite road sense and was capable of being contributorily negligent. However, taking into account her age, her degree of liability ought to be less than that of an adult, in this instance 10%.
4. In awarding damages, the court should be guided not only by the existence of a disability resulting from the accident, but the type of disability. In this case, the award ought to give regard to the epileptic condition arising from the accident, but also take into account the fact that the epilepsy was the controllable type.
5. The awards of damages by foreign courts must be viewed with caution having regard to comparative standards of living, levels of earning and many other factors (Kimothia v Bhamra Tyre Retreaders  EA 81).
6. The onus of establishing contributory negligence lies on the defendant.
7. (Obiter Hancox JA) It is a rule of general application that the sum that is awarded must be in proportion to awards in other cases of those who have suffered injuries of comparable severity. But if sums get too large which can only in the end have deleterious effect on the very group of persons that the court is trying to protect (Lim Poh Choo v Camden and Islington Area Health Authority  1 All ER 332 at 339).
8. (Obiter Potter JA) Recommend to trial judges the following passages:
a) “But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.” West (H) & Son Ltd v Shephard  AC 326 at 345.
b) “In considering damages in personal injury cases, it is often said: ‘The defendants are wrongdoers, so make them pay up in full. They do not deserve any consideration.’ That is a tendentious way of putting the case. The accident, like this one, may have been due to a pardonable error such as may befall any one of us. I stress this so as to remove the misapprehension, so often repeated, that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. That is not the law. She is only entitled to what is in the circumstances, a fair compensation, fair both to her and to the defendants. The defendants are not wrongdoers. They are simply the people who have to foot the bill. They are, as the lawyers say, only vicariously liable. In this case it is in the long run the tax payers who have to pay.
c) ‘Scarcely any sum could compensate a labouring man for the loss of a limb, yet you do not in such a case give him enough to maintain him for life ... You are not to consider the value of existence as if you were bargaining with an annuity office ... I advise you to take a reasonable view of the case and give what you consider fair compensation’.” (Lim Poh Choo v Camden and Islington Area Health Authority  1 All ER 332 at 339).
d) “I may add, too, that if these sums get too large, we are in danger of injuring the body politic, just as medical malpractice cases have done in the United States of America. As large sums are awarded, premiums for insurance rise higher and higher, and they are passed to the public in the shape of higher and higher fees for medical attention. By contrast we have a national health service. But the health authorities cannot stand huge sums without impeding their service to the community. The funds available come out of the pockets of the tax payers. They have to be carefully husbanded and spent on essential services. They should not be dissipated in paying more than fair compensation.” (Lim Poh Choo v Camden and Islington Area Health Authority (ibid)).
9. In awarding damages, the court ought to assess the general picture, the whole circumstances, the effect of the injuries, the particular person concerned and uniformity. The court must also be guided by recent awards in comparable cases in the local courts. In this case the High Court award was wrong in principle when measured against awards in other cases. (Bhogal v Burbidge  EA 285).
10. For pain, suffering and loss of amenities on account of a linear fracture of the right parietal bone of the skull, bruises on the face, head and hip, for which the respondent was hospitalised for a month, and for posttraumatic epilepsy brought on by a brain injury, the respondent was entitled to general damages in the amount of Kshs 300,000 (per Hancox JA (dissenting): “... I think this sum should be Kshs 400,000”) subject to a reduction proportionate to the respondent’s contributory negligence.
1. Butt v Khan  KLR 349
2. Attorney General v Vinod  EA 147
3. Gough v Thorne  WLR 1387;  3 All ER 398
4. Dick v Koinange (No 1)  EA 165
5. Jones v Griffith  2 All ER 1015
6. Muiruri v Emmy Annah HCCC No 2938 of 1975 (unreported)
7. Kimothia v Bhamra Tyre Retreaders  EA 81
8. West (H) & Son Ltd v Shephard  AC 326 at 345
9. Lim Poh Choo v Camden and Islington Area Health Authority  1 All ER 332 at 339
10. Davies v Journeaux  RTR 111
11. Mwadime v Yamani  EA 246
12. Jones v Lawrence  3 All ER 267
13. Kite (an infant) v Nolan (1982) 126 SJ 821
14. Fleming v Kerry CC (1955-6) IR 72
15. Lynch v Nurdin (1841) 1 QB 30
16. Bhogal v Burbidge  EA 285
17. Joyce v Yeomans  2 All ER 21
18. Young v Redmond & Peake  CLY 659
19. Moore v Poyner  RTR 127
20. Burke v Woolley  Kemp & Kemp Case 15-056 and 19-007
1. Bingham, L. (1960) Motor Claims Cases, London:Butterworths, 6th Edn p 86
2. Kemp, D.A. (1982) Kemp & Kemp: The Quantum of Damages in Personal Injury and Fatal Accidents Claims, London: Sweet & Maxwell, 4th Edn pp 3311, 3459
3. Heuston, R.F. (1969) Salmond on the Law of Torts, London: Sweet & Maxwell, 15th Edn pp 522, 702
4. Armitage, A. Dias, R.W (Eds) (1975) Clerk & Lindsell on Torts, London: Sweet & Maxwell, 14th Edn. para 999
5. Heuston, R.F. (1977) Salmond on the Law of Torts, London: Sweet & Maxwell, 17th Edn p 522
No statute referred to.
TC Noad for Appellant
AI Hayanga for Respondent