Back
DIAS J.G. v. SILVA S.A.G.
NLR55V7
1953 Present: Gratiaen
J. and Gunasekara J.
J. G. DIAS, Appellant, and S. A. G. SILVA, Respondent
S. C. 87-D. C. Colombo, 20,506
Collision-Negligence-Award of
damages-Circumstances when court of appeal will interfere.
In a running down case, a court of appeal will interfere with an award of
damages if it is satisfied that the trial judge has misapprehended the facts and
has for that reason made a wholly erroneous estimate of the damage suffered.
APPEAL
from a judgment of the District Court, Colombo.
H. W. Jayewardene, with D. R. P. Goonetilleke, for the plaintiff appellant.
H. V. Perera, Q. C., with H. Wanigatunga and M. Ramalingam, for the defendant
respondent.
cur. adv. vult.
April 28, 1953.
GUNASEKARA J.-
The plaintiff, a clerk in the employ of Messrs. Hoare and Co., 37 years of age,
was injured in a collision, brought about by the defendant's negligence, between
a motor bicycle ridden by him and one ridden by the defendant. He sued the
latter in the District Court of Colombo to recover a sum of Rs. 15,000 as
damages for the personal injuries so caused, and was awarded a sum of Rs. 3,500.
He appeals on the ground that this sum is inadequate. In his assessment the
learned judge allowed a sum of Rs. 1,900 as expenses incurred by the plaintiff
in consequence of the injuries. The question raised in the appeal is the
adequacy of the award of Rs. 1,600 under other heads of damage.
The accident occurred on the 28th May, 1948, and the plaintiff was treated for
the resulting injuries at the General Hospital in Colombo from that day till the
11th June, 1948, as an in-patient, and for some time after that as an
out-patient. Three metatarsal bones of the right foot were fractured. One of
these injuries was a compound, comminuted
fracture of the first metatarsal
bone, and the head of that bone as well as other fragments of bone had to be
removed, and the plaintiff had to have his foot and leg in plaster for about six
weeks. In the opinion of the senior surgeon of the hospital, Mr. Jayasuriya, who
had him under his care and treatment, he " would have been in. great pain on
account of this injury ". After an examination on the 18th September, 1948, four
months after the accident, the surgeon stated in a report:
"At present there is slight shortening of the right big toe and. inability to
put his weight on inner side of foot. There is also slight oedema of the foot
and ankle. At present he is not fit to perform any duties that require standing
or walking any distance."
On the 4th February, 1949, eight months after the accident, he said in a further
report:
" At present there is shortening of the right big toe with slight dorsiflexion
of toe. There is a drop of the anterior arch of the foot and neuralgic pain in
sole of foot on standing or walking. He has to put his weight on outer part of
foot. This disability [is permanent and the loss of earning capacity may be
assessed at ten per cent."
These statements he supported by evidence given at the trial, on the 30th
August, 1950. Explaining the nature of the permanent disablement he said:
" It means that the plaintiff has no longer the free and complete use of his
right foot. He would not be able to walk freely, easily and well. He cannot rest
on any part of that foot, except the outer portion, when he stands. That will be
a great strain on his foot. He would probably feel a certain amount of strain
when he stands for a long period. I doubt plaintiff's being able to walk long
distances normally. He will have a definite limp in his walk. I doubt very much
plaintiff's being able to play cricket. It is very doubtful that he will be able
to play football freely. If the plaintiff is prepared to suffer a certain amount
of discomfort and pain probably he would be able to play tennis but not as he
was able to do before the accident. If he plays cricket he will not be able to
run about. There are some peop
