KRUWAH v. KALMONI AND ANOTHER

JUDGMENT OF OLLENNU J.

The plaintiff is a seamstress and lives at Techiman where she carried on her trade. On the 17th January, 1960 the second defendant, driver to the first defendant, negligently drove his master’s Albion petrol tanker No. AE.6270 on the Cape Coast to Kumasi road and brought it [p.425] into collision with a passenger vehicle No. WR.89 on which the plaintiff was travelling. In consequence of the said accident the plaintiff suffered injuries including a compound fracture of her right ulna resulting in an almost complete loss of the use of her right hand. For the said injuries the plaintiff now claims £G29 4s. special damages and £G10,000 general damages.

The defendants did not dispute the allegation of negligence on the part of the second defendant; they, however, contested the quantum of the damages claimed and contended that in view of all the circumstances the plaintiff should not be awarded more than £G900. The ground upon which the defendants resisted the amount of damages are: (i) the plaintiff failed in her duty to minimise damage, by refusing to have her said hand operated upon in time and also in not seeking an alternative job; (ii) the nature of the plaintiff’s business and her income therefrom.

In support of this submission counsel referred the court to Kemp and Kemp on The Quantum of Damages, (2nd ed) Vol. 1 page 493 and the case of Owen v. The Welsh Construction & Demolition Co. Ltd. and Another1 there cited. In that case the plaintiff was awarded £G750 damages in the High Court, but the Court of Appeal increased the award to £G2,100. That case, it was submitted is similar to the present case in many respects, namely the injury was to the right hand, and the disability was almost complete. The plaintiff there earned £G11 2s. a week, and it was difficult to obtain employment suitable to her condition after the accident.

Counsel for the plaintiff submitted that the grounds upon which the plaintiff refused to submit to proper medical treatment is that her hand was going to be amputated, but that in any event, the refusal to submit to the operation was an act of a third party, i.e. it was a decision taken by relations of the plaintiff, therefore the refusal should not be imputed to the plaintiff.

It was alleged by the plaintiff that her people had to remove her from the Obuasi hospital because the doctor in charge had said he would amputate the hand. The plaintiff said she was unconscious at the time and that it was members