KRUWAH vs. KALMONI AND ANOTHER [0961]DLHC5408

Date	0961-06-26
Suit No.
Citation No.	[0961]DLHC5408

OLLENNU J

J. HEWARD-MILLS FOR THE PLAINTIFF

E. D. KOM (KWAKU WITH HIM) FOR THE DEFENDANTS

[0961]DLHC5408
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">KRUWAH<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">KALMONI AND ANOTHER<o:p></o:p><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;[HIGH COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

J.
HEWARD-MILLS FOR THE PLAINTIFF.<o:p></o:p>

E.
D. KOM (KWAKU WITH HIM) FOR THE DEFENDANTS.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU, J<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
OLLENNU J.<o:p></o:p>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 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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 &amp; Demolition Co. Ltd. and Another1(1) 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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 of her family who informed her of what the doctor had said he would do.
None of those members of the family was called to give evidence of the fact,
and her father who gave evidence never said anything about it. The only other
evidence on the record in that regard is that of the doctor, defence witness,
who swore positively that he never told any one that he would amputate the
plaintiff’s hand and there was no necessity to amputate it, and that the
purpose of the operation he was going to perform was to get the hand back to
normal or as nearly as possible to it. I accept the evidence of the doctor. I
am also satisfied from the nature of the operation performed on the plaintiff
when she at last submitted to operation that none of the doctors who dealt with
the case advised amputation.<o:p></o:p><o:p>&nbsp;</o:p>