HOPE HAHAYI vs. MAX GHANA LTD. AND ANOTHER [2011]DLHC8501

Date	2011-04-11
Suit No.	SUIT NO. C8/33/10
Citation No.	[2011]DLHC8501

HIS LORDSHIP JUSTICE JACOB B. BOON

F.C.K HARSA FOR PLAINTIFF

VICTOR WALANKAKI FOR THE DEFENDANT

[2011]DLHC8501
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													<main id="main" class="content" style="min-height: 60rem" >HOPE HAHAYI<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>MAX GHANA LTD.
AND ANOTHER<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. C8/33/10&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
11TH APRIL, 2011<o:p></o:p>

</div>COUNSEL:<o:p></o:p>F.C.K
HARSA FOR PLAINTIFF<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

VICTOR
WALANKAKI FOR THE DEFENDANT<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

HIS LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>On 2nd February, 2011, this court gave
judgment in favour of the plaintiff/applicant in a running down case involving
him and the vehicles of the defendants. He sustained personal injuries and in
an action for damages, he was awarded a total of GH¢ 25,000.00. At the trial,
Dr. Paa Kwasi Baiden, a medical officer at Komfo Anokye Teaching Hospital,
Kumasi, who treated him for the injuries gave evidence in his favour, and said
inter alia, that the plaintiff might require a total hip replacement in future
as a result of the injuries he sustained in the accident. According to him, it
might cost him between GH¢13,000.00 and GH¢15,000.00 for such an operation
which might be carried out in every ten year.<o:p></o:p><o:p>&nbsp;</o:p>In the instant application for a review upwards of the
damages awarded in his favour, the plaintiff deposed that though the court
acknowledged the evidence of the medical officer about the possibility of the
hip replacement operation, no award was made to cover such future expenses. He
thus prayed the court to make an award in that regard to facilitate any such
operation in future. He added that at his present age, he will require three of
such operations. Indeed in paragraph 11 of the affidavit in support of the
motion, it was deposed as follows:<o:p></o:p><o:p>&nbsp;</o:p>“11
That the cost of the hip replacement is so expensive that if no award is made
for same the plaintiff will have to bear the cost himself and the damages so
far awarded to him, will not even be enough to cater for same leaving him with
nothing and making him incur additional expenses in additional to the injuries”<o:p></o:p><o:p>&nbsp;</o:p>The application was opposed by counsel for the first
defendant against whom alone the judgment was given. His main ground of
opposition was that the medical officers evidence was not certain the plaintiff
will require a hip replacement; that in so far as the evidence was not
conclusive, it should not be relied on to make an award in favour of the
plaintiff. In effect his contention is that the plaintiff would have made an
unjustifiable gain if such an award is made, but he does not undergo any such
operation.<o:p></o:p><o:p>&nbsp;</o:p>In his view, the court averted its mind to the condition
of plaintiff when it made an award of GH¢12,000.00 in his favour for pain and
suffering instead of the GH¢ 5,000.00 prayed for by his counsel under that head
of damages. It was further contended that at the age of fifty–three, there is
no degree of certainty that the plaintiff will live long enough to require
three hip replacements at the interval of ten years. Indeed, from the record,
the plaintiff is now fifty–five years old and not fifty-three, as his statement
of claim indicates that he was fifty-one at the time of the accident on 18th
February, 2007.<o:p></o:p><o:p>&nbsp;</o:p>Though counsel for the plaintiff failed to indicate in
the motion paper under which rule the application was filed, it is obviously
one under Order 42 of the High Court (Civil Procedure) Rules, 2004, C.I. 49,
and from the wording of the affidavit in support, rule 1(1) of Order 42 is
ap</main>