Matiku Bwana v Matiku Kwikubya and Another 1983 TLR 362 (HC)

MATIKU BWANA v MATIKU KWIKUBYA AND ANOTHER 1983 TLR 362 (HC)

Court High Court of Tanzania - Mwanza

Judge Mushi J

July 16, 1984

CIVIL APPEAL 16 OF 1982 D

Flynote

Torts - Physical injury - Fracture - Assessment of damages -Grounds for interference by an appellate court.

-Headnote

The appellant had suffered a simple fracture of the ulna of his left hand as a result of an assault by the respondent. He successfully instituted civil proceedings and was awarded Shs. 2,000/= as general damages. He appealed to the High Court on the ground that the amount was inadequate.

Held: (i) An appellate court will normally not interfere with a trial court's assessment of damages unless it is shown that the trial court acted on wrong principles such as not taking relevant facts into account or taking irrelevant facts into account resulting in an unjust decision.

Case Information

Appeal dismissed.

Case referred to:

1. Mantage and Another v Mwita [1971] H.C.D. n. 110.

[zJDz]Judgment

Mushi, J.: The appellant, Matiku Bwana, successfully instituted proceedings in the District Court for damages against the respondents, Matiku Kwikubya 1st respondent, and Mubaraka Essore - 2nd respondent and was awarded Shs. 2,000/= as damages.

The appellant had asked for Shs. 8,000/=. He is appealing against the award of Shs. 2,000/= on the grounds it appears, that it is inadequate.

Reading the memorandum of appeal carefully I find grounds No.

and 8 to cover the issues raised and for convenience I reproduce grounds No. 1 and 8 here:

"1. That the learned trial magistrate erred in assessing the compensation to be awarded to the appellant.

2. That award of compensation of Shs. 2,000/= by the lower court is a little amount in regard to the permanent incapacity of the appellant's broken hand which he can no longer use in his daily cultivation on which he depends".

The claim arose from an assault on the appellant which resulted in a simple fracture of the ulna of the left hand. The appellant also suffered some other pains as he says he was also struck with a stick on the back. The appellant therefore filed a suit against the respondents for general damages for permanent incapacity of the left hand; injuries in the chest; pain and loss of blood. For all of them he claimed Shs. 8,000/=. I will dispose of ground No. 8 which alleges permanent incapacity of the appellants hand. There is no evidence at all to support the allegation that the appellant suffered permanent incapacity and that the hand can no longer be used in shamba work. The appellant in his evidence did not at all state that he could never use his hand again. He simply said that he could E not perform heavy duties. Apart from the general allegation that he could not perform heavy duties, there was no other evidence medical or otherwise from which such inference could have been inferred. Medical evidence could only be gathered from the criminal record in which the respondents had been charged and convicted. The P.F. 3  shows that the appellant suffered a simple fracture and that he was put on a P.O.P. for eight weeks.

In the absence of any other evidence to the contrary, it is only fair to assume the appellant's hand has properly healed. Ground No. 8 therefore fails in its entirety as there was no evidence on record to support it.

I now turn to the ground No. 1 that the learned trial magistrate erred in assessing the amount of damages. This allegation must be viewed against the background on the part of the appellant that he was under wrong impression that he should be seen to have suffered permanent incapacity a fact which I have already dealt with. The assessment must be based on a simple fracture which the appellant suffered. The question is whether on the facts of this case, it can be said that the award of Shs. 2,000/= is manifestly inadequate or that the award was based on wrong principles.

This court will not normally interfere with the trial court's assessment of damages unless it I is shown that the trial court acted on wrong principles such as not taking relevant facts into account or took irrelevant facts into account resulting into reaching an unjust decision. Or if the court acted according to the A principles taking into account all the relevant factors, all in all the award is manifestly inadequate. The appellant has not shown in any way that the trial magistrate acted on wrong principles nor is there any evidence that the award is manifestly inadequate. There is nothing on the record either which shows the existence of any facts which establish the breach of the two principles above.

It is the law that damages must be awarded to adequately cover loss directly arising from the act complained of and reasonably foreseeable. In this case, the facts were simple. The appellant was assaulted during which he sustained a simple fracture of the left hand which healed after 8 weeks. There is no evidence that the appellant suffered any special damage or loss as a result of sustaining the fracture, other than the fact that the appellant suffered pain and suffering as a result of fractured arm.

The appellant stated that since the fracture of the arm he has been receiving treatment at the hospital as an out patient. There was no documentary evidence to support this allegation and even if there was, still a further question would be asked as to whether the treatment was directly related to the injuries caused by the act of the respondents. The trial magistrate was therefore restricted in his assessment of damages to the sufferings and pain resulting from the fractured hand. In his considered view taking all factors into consideration Shs. 2,000/= would adequately compensate the appellant. I found no ground to fault him. In the case of Mantage and Chacha v Mwita, [1971] H.C.D. 110, the appellants were ordered to pay Shs. 3,500/= as general damages for assault F resulting in fracture of the arm of the respondent. On appeal it was found that the respondent's hand had fully healed although the alignment was affected. It was also not established that the respondent could not make use of his hand permanently. Neither did other blows leave any permanent defects on the body. The High Court under the circumstances found that the amount of Shs. 3,500/= as general damages was excessive G and reduced it to Shs. 1,600/=. While each case must be taken on its facts and circumstances the facts of the above quoted case and the one on appeal are not different. The respondent had been prosecuted and sentenced to eight months each and ordered compensation of Shs. 200/= each which make total compensation to Shs. H 2,400/=. It is on record that the parties in this appeal are related. From what I have stated above, I am not satisfied that the trial magistrate erred in assessing the amount of damages. The award was reasonable in the circumstances. The appeal is dismissed. Each party to bear his costs of this appeal.

Appeal dismissed.

1983 TLR p365

A