SJ v Francesco Di Nello & another [2015] eKLR

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: OKWENGU, MWILU & ODEK, JJ.A)

CIVIL APPEAL NO. 177 OF 2008

S J ………………………...............................……..APPELLANT

VERSUS

FRANCESCO DI NELLO ……….…………1ST RESPONDENT

SACHA FRANCESCA …….................…….2ND RESPONDENT

(Being an Appeal from the Judgment and Decree of the High Court at Nairobi (Hon. Lady Justice
Ang’awa) delivered on 22nd November, 2002

in

Civil Case No. 681 of 1997)

******************

JUDGMENT OF THE COURT

1. On the 16th April, 1994 at about 2.00 a.m. along Langata South Road S J (appellant) was a
lawful passenger in motor vehicle registration number KAC 320W which was being driven by
SACHA FRANCESCA (2nd respondent) when a self-involving accident occurred. The appellant
sustained serious injuries.

2. The appellant had a suit filed on his behalf by his next friend and father as he was a minor at
the time material to the cause of action. The plaint was variously amended to accommodate
claims that continued to arise as time went by. The last of the amendments was the Further Re-
Amended Plaint dated 6th November, 2002 vide which particulars of special damages and
projected expenses were given. In addition to the special damages, the plaintiff sought damages
for pain, suffering and loss of amenities, loss of future earnings and/or lost years, other incidental
expenses and future pecuniary expenses.

3. When the judgment was finally delivered the appellant was awarded a sum of

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 SJ v Francesco Di Nello & another [2015] eKLR

Kshs.1,500,000/= in respect of general damages for pain, suffering and loss of amenities; certain
special losses were allowed in varying sums of money together with interest at the rate of 24%
until payment in full; the claims for loss of future earnings and/or lost years and future medical
expenses were declined. Being aggrieved by that outcome the appellant filed this appeal and
raised grounds of appeal which we think expedient to reproduce, as we hereunder do, to bring
out the clear nature of the grievance;

“1. THAT having found the respondents liable in negligence to the appellant and having
computed liability at 100% against the respondents jointly and severally, the learned judge erred
in law and in fact by failing to award the appellant damages under the head of loss of future
earnings (emphasis ours)

2. THAT despite sufficient evidence having been placed before her, the learned judge
erred in law and in fact by find that the appellant did not lose his capacity to
earn (emphasis ours)

3. THAT the learned judge erred in law and in fact by failing to find that the appellant shall
require future medical treatment as a result of which the learned judge failed to make a
provision for future medical expenses (emphasis ours)

4. THAT as a result of the foregoing the learned judge erred in law in finding that the
appellant was entitled to only Kshs.1,500,000/= under the head of general damages

(emphasis ours)

4. Based on those grounds of appeal the appellant now prays for orders awarding damages
under the heads of loss of future earnings, loss of earning capacity, and future medical expenses
and an enhancement of general damages from 1.5m, and for the costs of the appeal.

5. BERYLY OUMA learned counsel for the appellant abandoned ground 1 of the appeal and
consolidated arguments for grounds 2 and 4. Counsel submitted that it was clear from the
medical report in respect of the appellant that he had become a 100% paraplegic and incapable
of using his limps and perform tasks as well as compete in the work market at the early age of 15
years. Counsel’s further submission was that it matters not that at the time of the accident the
appellant was not using his earning capacity; he was still entitled to damages under the head of
loss of earning capacity.

6. On the issue of the inadequacy of the general damages for pain, suffering and loss of
amenities, and the justification for its enhancement from the awarded sum of Kshs.1.5 million,
counsel told us was the trial court did not take into consideration the fact that the appellant had
been rendered impotent by the accident as a result of which he would never raise a family. That
the trial judge did not consider the young age of the appellant at the time of the accident and also
based her judgment on very old precedents. Counsel suggested that a sum of Kshs. 5 million
would be appropriate remedy under this head.

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 SJ v Francesco Di Nello & another [2015] eKLR

7. The appeal was strenuously opposed and learned counsel for the respondent

MR. WAMBUGU GITONGA told us that no damages could be awarded under the head of loss of
earning capacity as there was no pleading for the same, and according to counsel damages for loss of
earning capacity must be specifically pleaded and further, it must be shown to be based on payments in
the relevant industry. Counsel added that in the instant case the appellant did not lose capacity to earn,
as he could use a motor vehicle for camping purposes to earn a living, he was therefore entitled to nil
under this head.

8. Mr. Wambugu Gitonga was of the view that there was no justification for enhancing the award
of general damages for pain, suffering and loss of amenities as the authorities relied on to arrive
at the sum of 1.5 million were a year or two older than the date on which the case herein was
decided.

9. This is a first appeal. As such the burden placed on the court to discharge is that of
conducting a re-trial being careful only to give allowance for the fact that we did not see the
witnesses give evidence and are therefore not best suited to assess their demeanour and
credibility. This court must also be careful not to interfere with findings of fact and the proper
exercise of judicial discretion of the trial court – see SELLE V ASSOCIATED MOTOR BOAT
CO. LTD. [1968] E.A 123 wherein it was held;

“An appeal to this court from a trial by the High Court is by way of retrial and the principles
upon which this court acts in such an appeal are well settled. Briefly put they are that this court
must reconsider the evidence, evaluate it itself and draw its own conclusions though it should
always bear in mind that it has neither seen nor heard the witnesses and should make due
allowance in this regard. In particular this court is not bound necessarily to follow the trial
judge’s findings of fact if it appears either that he has clearly failed on some point to take
account of particular circumstances or probabilities materially to estimate the evidence or if the
impression based on the demeanour of a witness is inconsistent with the evidence in the case
generally.” See also HAHN V SINGH [1985]KLR 716.

10. What were the trial judge’s findings in respect of loss of earning capacity as raised in ground
2 of appeal" Was a claim for loss of earning capacity pleaded and was evidence on the same
led" And must a claim for loss of earning capacity be specifically pleaded and the calculations of
damages be based on payments in the relevant work industry of the victim of injury"

As regards whether or not damages for loss of earning capacity were pleaded, we find paragraph 7 of
the Further Re-Amended Plaint instructive. It states;

“7. By reason of the matters aforesaid, the plaintiff sustained severe injuries which have, inter
alia, permanently disabled and incapacitated the plaintiff and completely changed and affected
the plaintiff’s lifestyle, future prospects, ability to care for himself and earning capacity and the
plaintiff has been subjected to pain and suffering and loss and damage for which the
1st defendant is vicariously liable (emphasis provided).

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 SJ v Francesco Di Nello & another [2015] eKLR

Additionally that further re-amended plaint prayed for damages for pain, suffering and loss of
amenities at its paragraph 10.

11. The availed evidence of the appellant’s injury which resulted from the accident and rendered
him a paraplegia came from Professor Benato F. Roberto, a consultant neurosurgeon who gave
evidence as PW2. Below is what the neurosurgeon said of the appellant on his 5th review of the
appellant on 23rd January, 2002;

“--- his condition still remains the same as before with paraplegia and sensory loss at T10. His
condition is not going to change in future and permanent invalidity has to be evaluated at
[100]%.”

12. What then did the learned trial judge do with the above finding by the doctor and the
additional evidence led by the appellant" The learned trial judge, while considering that evidence
stated;

“Basically what the doctor stated in evidence that (sic) from his experience and knowledge
once a person becomes a paraplegia there is no known cure or recovery. There may be a slim
chance for young people but this must be achieved within a certain period. That period having
past (sic) the plaintiff’s condition remains permanent.

In evidence the plaintiff illustrated how he was in pain and how he had to be rehabilitated to
live with his condition at a hospital in England. Here he learnt (sic) how to manage himself and
how to undergo physiotherapy which he continued on his return to Kenya. He visited several
countries to try to find a cure. This will be discussed further below.”

When “further below” the learned trial judge got to discuss “Loss of Earning Capacity” herein below
quoted is what she stated:

“As stated earlier there is no proof that the plaintiff is unable to have a capacity to earn. He is
well from the T10 upwards and can use his TOSO well. He now drives, which is a fact that makes
him even more independent. I decline this award this as having not been proved.”(sic)”

13. Was the learned trial judge right in her such finding" Hardly. Her conclusion was neither based
on a correct assessment of the adduced evidence nor was it based on the correct principles of
law. Having dismissed the claim under loss of future earnings as unproved because no industry
evidence was led and, after noting that the appellant had not yet found employment as at the
date of hearing, and after advising the appellant to continue looking for a job as he was still
young, the learned trial judge proceeded to dismiss the claim under loss of earning capacity,
erroneously confusing the two heads of loss and clearly misapprehending how the law treats
claims under each of those two heads.

14. Claims under the heads of loss of future earnings and loss of earning capacity are distinctively
different. Loss of income which may be defined as real actual loss is loss of future earnings. Loss
of earning capacity may be defined as diminution in earning capacity. Loss of income or future
earnings is compensated for real assessable loss which is proved by evidence. On the other
hand loss of earning capacity is compensated by an award in general damages, once proved.

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 SJ v Francesco Di Nello & another [2015] eKLR

This was the position enunciated in FAIRLEY V JOHN THOMSON LTD [1973] 2 LLYOD’S
LAW REPORTS 40 at pg. 14 wherein Lord Denning M.R. said as follows:

“It is important to realize that there is a difference between an award for loss of earnings as
distinct from compensation for loss of earning capacity. Compensation for loss of future
earnings is awarded for real assessable loss proved by evidence. Compensation for diminution
in earning capacity is awarded as part of general damages.”

Learned counsel for the respondent was therefore wrong in stating that loss of earning capacity was
not pleaded and that it must be proved as though it was a claim under loss of income or future earnings.
The correct position as in the FAIRLEY case (supra) was restated by this court in the case of
CECILIA MWANGI & ANOTHER V RUTH W. MWANGI CA No. 251 of 1996 as hereunder;

“Loss of earning is a special damage claim. It must be specifically pleaded and strictly
proved. The damages under the head of “loss of earning capacity” can be classified as proved
on a balance of probability.”

15. The neurosurgeon having found as he did as set out in paragraph 11 above, there was no
doubt left in the mind of any reader of the medical report that the appellant was rendered
incapable of using his body from T10 downwards. There was no evidence that he could gainfully
use the remaining upper torso to any meaningful extent or at all. What remained is the
appellant’s evidence and the medical report which showed him as 100% paraplegic. With that in
mind the learned trial judge should have found proved, the claim under loss of earning capacity.
To the extent that she did not so find, she erred and it is now our duty to right that misdirection. In
the authority of BUTLER V BUTLER [1984] KLR 225, the issue of awarding damages for loss of
earning capacity was carefully considered and CHESONI Ag. JA (as he then was) said,

“Whilst loss of earning capacity or earning power should be included as an item of general
damages, it is not improper to award it under its own heading ---. Once it is in principle accepted
that the victim of personal injuries who has lost his earning capacity is entitled to compensation
in the form of damages it is of little materiality whether the award is under the composite head of
general damages or as an item on its own, as a loss of earning capacity. At any rate, what is in a
name if damages are payable.”

16. There can be no doubt that the appellant sustained such injuries as to reduce, to the extent of
100% his earning capacity. That was clear from his doctor’s report. What remains then is the
issue of assessing the amount of damages to be awarded. As already evidenced in the case of
CECILIA MWANGI (supra) once a case is found proved on a balance of probability, which we
find was proved in the case before the trial court. The assessment of damages for loss of earning
capacity is not an easy one as there is no possible mathematicalcalculation because it is
impossible to suggest any formular for determination of the extent to which a plaintiff would be
handicapped by his disability if he is thrown on the open labour market – see Brown L.J’s
judgment in the case of MOELIKER V REUROLL & CO. LTD [1977] IWLR 132.

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 SJ v Francesco Di Nello & another [2015] eKLR

In our present case the appellant was only 15 years old when the accident that rendered him 100%
paraplegic happened. He lost his power to establish a family of his own. He lost his competitive edge in
the work place. And lost the employment of a full limped life, and no doubt diminished his capacity to
earn. He is entitled to general damages as pleaded in his further re-amended plaint and proved in his
oral evidence and the medical evidence of PW2. Doing the best we can with the evidence on record and
in the circumstances of this case, we would assess general damages for loss of earning capacity at a
sum of Kshs.1,500,000/-.

17. The guiding principle in the assessment of damages has been the subject of numerous
authorities. For the purposes of this case we refer to that of

OSSUMAN MOHAMED & ANOTHER V SALURO BUNDIT MOHUMED, Civil Appeal No. 30 of
1997 (unreported) wherein the following passage, in the case of KIGARAGARI V AYA [1982 – 1988]
IKAR 768 is employed;

“Damages must be within limits set out by decided cases and also within limits the Kenyan
economy can afford. Large awards are inevitably passed on to the members of the public, the
vast majority of whom cannot afford the burden, in the form of increased costs for insurance or
increased fees.”

And as to the extent to which an appellate court can interfere with a trial court’s assessment of
general damages, the principles are well established,

see SALIM ZEIN AND ANOTHER V ROSE MULEE MUTUA Civil Appeal No. 147 of 1994 in the
following words;

“The appeal court must be satisfied either that the judge, in assessing the damages, took into
account an irrelevant factor, or left out of account a relevant one, or that the amount is so
inordinately low or so inordinately high that it must be a wholly erroneous estimate of damage.”

18. Taking the above to mind we now turn to consider whether or not the award of general
damages for pain, suffering and loss of amenities to the tune of 1.5 million is adequate. We are
also mindful of what this court said in the case of

MASENO NGALA & ANOTHER V DAN NYANAMBA OMARE Civil Appeal No. 320 of
2002, quoting from RAHIMA TAYAB AND ANOTHER V ANNA MARY KINARU [1987-88]1 KAR
90 wherein POTTER JA gave the following advice:-

“I would commend to trial judges the following passage from the speech of Lord Morris of
Borth-y-Gest in the case of West(H) & Son Ltd. v Shephererd (1964) A.C. 326 at pg. 345:-

“But money cannot renew a physical frame that has been battered and shattered. All that
judges and courts can do is to award sums, which must be regarded as giving reasonable
compensation. In the process there must be the endeavour to secure some uniformity in the
general method of approach. By common consent awards must be reasonable and must

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be assessed with moderation. Furthermore, it is eminently desirable that so far as possible

comparable injuries should be compensated by comparable awards. When all this is said it still
must be that amounts which are awarded are to a considerable extent conventional.”

The approach of Lord Morris to the matter of compensatory damages was supported by Lord
Denning MR in Lim Poh Choo v Camden and Islington Area Health Authority [1979]1 AII ER 332 at
339:

“In considering damages in personal injury cases, it is often said: “The defendants are
wrongdoers, so make them pay up in full. They do not deserve any consideration.” That is a
tendentious way of putting the case. The accident, like this one, may have been due to a
pardonable error such as may befall any one of us. I stress this so as to remove the
misapprehension, so often repeated, that the plaintiff is entitled to be fully compensated for all
the loss and detriment she has suffered. That is not the law. She is only entitled to what is in the
circumstances, a fair compensation, fair both to her and to the defendants. The defendants are
not wrongdoers. They are simply the people who have to foot the bill. They are, as the lawyers
say, only vicariously liable. In this case it is the tax payers who have to pay. It is worthy
recording the wise words of Parke B over a century ago:

“Scarcely any sum could compensate a laboring man for the loss of a limp, yet you do not in
such a case give him enough to maintain him for life --- You are not to consider the value of
existence as if you were bargaining with an annuity office --- I advise you to take a reasonable
view of the case and give what you consider fair compensation.”

Later in his judgment, at 341, Lord Denning had this to say about extravagant awards:-

“I may add, too, that if these sums get too large, we are in danger of injuring the body politic,
just as medical malpractice cases have done in the United States of America. As large sums are
awarded, premiums for insurance rise higher and higher, and they are passed to the public in the

shape of higher and higher fees for medical attention. By contrast we have a national health
service. But the health authorities cannot stand huge sums without impending their service to
the community. The funds available come out of the pockets of taxpayers. They have to be
carefully husbanded and spend on essential services. They should not be dissipated in paying
more than fair compensation.”

19. The appellant sought 5 million by way of general damages for pain, suffering and loss of
amenities. The respondents countered that with an offer of 1m, and the court awarded a sum of
Kshs.1.5 million. Considering all the authorities relied upon by both sides, the age of those
authorities vis-à-vis the date of the instant injury to the appellant, the age of the appellant at the
time of injury, on our part we consider the cases of GEOFFREY MUTUBA (MINOR) V MANIE
KURIA & ANOTHER, NBI HCCC NO. 821 OF 1991 wherein Msagha J awarded a sum of
Kshs.2m for pain, suffering and loss of amenities on 17th April, 1993 for paraplegia and resultant
disabilities; JAMES NYAMBOGA MASOGO V KIPKEBE LIMITED Civil Appeal no. 225 of

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 SJ v Francesco Di Nello & another [2015] eKLR

2007, where an award of general damages for pain, suffering and loss of amenities was
confirmed by this Court to a manual labourer rendered 80% incapable of earning to the tune of
Kshs.1.7m; to be closer to the adequate damages for similar injuries.

In that regard we do not find that the learned trial judge properly assessed general damages for pain
suffering and loss of amenities. We think that a proper case for our interference has been made out. We
so interfere andaward a sum of Kshs.2.2 million in respect of general damages for pain, suffering and
loss of amenities.

21. As regards ground 3 of appeal that the learned trial judge failed to find that the appellant shall
require future medical treatment, the trial court found that nothing was said about it during the
hearing. Our perusal of the record shows that to be the correct position. Save for the pleading
under the hearing

“Projected Expenses over the next (5) years”, no evidence was led and proof given to support the
amounts sought thereunder. The nature of this loss is a special damage which must be strictly proved.
There was no such strict proof or at all. And not surprisingly there was not much of a submission on the
same when the appeal was canvassed before us. It is trite that he that alleges must prove and in this
case such proof is strict proof. A plaintiff (appellant) cannot throw material at the court without
discharging his/her onus of proof and expect success. Ground 3 of appeal therefore fails.

22. In the end grounds 2 and 4 of appeal succeed with the result that the appeal is allowed to the
extent that we set aside the award of the trial court and substitute thereto judgment for the
appellant in the sum of Kshs. 2.2 million in respect of damages for pain, suffering and loss of
amenities. We were informed by counsel from the bar that the decretal sum has since been
settled in full. The difference between the High Court award and the award of 2.2 million which
we now grant is Kshs.700,000/=. The trial court declined an award under the head of damages
for loss of earning capacity. As already stated earlier, under this head of loss there shall be
judgment in damages to the tune of Kshs.1.5 million. Accordingly there shall be final orders as
follows:-

a. Judgment be and is hereby entered for the appellant for pain, suffering and loss of amenities in
damages to the tune of 2.2 million, with the sum of Kshs.700,000/= attracting interest at court
rates from the date of the High Court judgment until payment in full.

b. Judgment be and is hereby entered for the appellant in the sum of Kshs.1.5 million in respect of
damages for loss of earning capacity. There shall be no interest on this sum. That is the law.

c. The appellant shall have the costs of the appeal.

DATED and DELIVERED at NAIROBI this 19th day of June, 2015.

H. M. OKWENGU

JUDGE OF APPEAL

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 SJ v Francesco Di Nello & another [2015] eKLR

P. M. MWILU

JUDGE OF APPEAL

J. OTIENO-ODEK

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR

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