Alli et Al v Yassen
| Jurisdiction | Guyana |
| Judge | Gonsalves-Sabola, J.A. |
| Judgment Date | 09 February 1984 |
| Neutral Citation | GY 1984 CA 2 |
| Docket Number | Civil Appeal No. 5 of 1982 |
| Court | Court of Appeal (Guyana) |
| Date | 09 February 1984 |
Court of Appeal
Fung-a-Fatt, J.A.; Gonsalves-Sabola, J.A.; Vieira, J.A.
Civil Appeal No. 5 of 1982
C. Lloyd Luckhoo, S.C., for appellants.
D. C. Jagan for respondent.
Damages - Quantum — Appeal against decision of trial judge as to liability and its apportionment and assessment of contributory negligence in the proportion of 70:30 against the appellants — Trial judge's finding of fact cannot be disturbed — Quantum of damages paid, loss of prospective earnings $43,627.90, special damages $12,718.50 and pain and suffering $10,000 — Respondent cross appeals claiming that he should have received compensation for loss of pension — Appeal and cross appeal dismissed.
There is no longer need to cite authority to establish that this Court would not disturb the primary findings of fact of a trial judge whose decision is being questioned unless, ex facie, the trial judge drew wrong or unreasonable inferences of fact or patently did not take proper advantage of the opportunity he had, but denied this Court, of seeing and hearing the witnesses testify and observing their demeanour. In the instant appeal there were two versions of how the accident in question happened. I am satisfied to adopt the narration of the facts as set out in the judgment of Vieira, J.A., which I was privileged to read in draft. It was entirely within the fact finding province of the learned trial judge either to prefer one version to the other, or to be selective of parts of one and parts of the other and amalgamate them into the findings she arrived at on a consideration of all the evidence and her assessment of the credibility of the witnesses. Where as here, there was evidence on which the trial judge could have arrived at the findings she did as to liability and its apportionment, this court cannot disturb her judgment as to how the accident occurred and her assessment of contributory negligence in the proportion of 70:30 against the appellants.
The judgment of the trial judge was criticised on the ground that it did not disclose the findings of fact, which had necessarily to be made in order to resolve the issue of liability between the parties. The criticise did not come entirely out of the blue. It was inspired by the style in which the relevant part of the judgment was written. On an analytical reading of the judgment as a whole, the complaint appears to rest wholly on the particular style used by the learned judge in setting forth her reasoning process. It goes with saying that it is preferable to adhere to the orthodox formula “I find” or some analogous expression when pronouncing findings arrived at, than merely sum up the facts which, inferentially, impressed the judge, leaving the several findings made to be deduced free the tenor of the language used and the ultimate conclusion arrived at. When a trial judge states precisely what his findings of fact are in relation to each issue in respect of which there is joinder, this Court is saved the trouble of having to entertain argument on the question whether or not or what particular findings were in fact made. In this case, however, the after due consideration of the trial judge's language, harbours no doubt as to what were the findings of fact which led her to decide liability and apportion it on a basis of the contributory negligence of the respondent. I have in mind the dictum in the Full Court decision Local Authority of Beterverwagting and Triumph v. Roopnarine, (1931–7) L.R.B.G. 59, 61 that:
“Notwithstanding a jumbled case and difficult ‘Reasons,’ it must be borne in mind that an appeal is from a decision and not from the reasons for that decision [ Sanders v. Sanders, (1881). 19 Ch. D., 373, C.A., per Jessel, M.R.] and that a Court of Appeal may look behind the judgment and the reasons for the judgment to ascertain what are the grounds of the decision [ Debenhams v. Perkins, (1925) 133 L.T. 252per Bankes, L.J.]
Of course, a gloss needs to be put on that dictum. There can be cases where, on a question of fact, the judge's reasons for decision are all-important, where the fate of an appeal against a finding of fact is wholly dependent on the goodness of the reasons given for it. If the trial judge misperceived the evidence or ignored vital aspects of it or came to a palpably unreasonable conclusion on the facts, the reasons he gives will show up these lapses and this Court, as a court of rehearing, will upset his finding. It would be otherwise where the credibility of witnesses was determinative of the facts to be found. So many well-known cases traverse this beaten track, cases like Watt v. Thomas, [1947] A.C. 487; Benmax v. Austin Motor Co, Ltd [1955] 1 All E.R. 329; Booker Stores Ltd v. Mustapha Ally, (1972) 19 W.I.R., P.C., 230, Barrow v. Barrow, (1968) 12 W.I.R. 440; Onassis v. Vergottis, (1968) Lloyd's Rep. Vol. 2, 403 and innumerable decisions of this Court following them, notably Hack v. Rahieman, (1976) 27 W.I.R. 109, 116.
Even if the trial judge's findings were better set forth in the way that is customary, sight must not be lost of the fact that this is a simple running-down case where, on conflicting testimony, the judge arrived at a conclusion which was based on the evidence and by no means unreasonable. But it cannot be denied that a process of extrapolation of a trial judge's findings by way of deduction is less to be preferred than a straight reading of then as expressed in direct and definitive language.
The real bone of contention in this appeal is the quantum of damages. That in turn raised a number of interesting points of law for our decision. These will be dealt with seriatim in due course. The appellants complain that the damages awarded were inordinately high, excessive and out of all proportion to the injuries sustained and loss suffered by the respondent. The respondent, for has part, in a cross-notice, seeks to have the award increased on the ground that it was wholly inadequate and that the finding of contributory negligence on his part was erroneous. The latter ground has already been disposed of unfavourably to the respondent and the decision of the trial judge as to contributory negligence upheld. Now damages were awarded as follows:
Special Damages … … $12,718.50
Loss of Prospective Earnings $43, 627.90
Pain and Suffering … $10,000.00
The appellants do not challenge the award for pain and suffering. In relation to special damages they make the single complaint that figure was too high because of a miscalculation of an element of it, namely the respondent's loss of salary between the date of the accident and the date when the respondent was medically discharged fifteen months thereafter. The argument was that the period for which special damages for loss of salary should have been awarded should have been fifteen and not sixteen months. That would produce the figure of $10,906.00. As a matter of arithmetic this argument is correct, but the application later on of the relevant legal principles would likely produce a different sum.
The Court was asked to discount the sick leave payment of $800 made to the respondent by his employers. Further, it was submitted that one half of the National Insurance Scheme benefit of $252 per received by the respondent for six months, an amount of $756, should have been deducted under s. 54 (2) of the National Insurance and Social Security Act, Cap. 36:01. That subsection reads as follows:
“54. (2) In an action for damages for personal injuries (including any such action arising out of a contract) there shall in assessing such damages be taken into account against any loss or wages or profits which has accrued or probably will accrue to the insured person from the injuries, one-half of the value of any rights which have accrued or probably will accrue to him therefrom in respect of injury benefit or disablement benefit for the five years beginning with the time when the cause of action accrued… …” (Underscoring mine.)
The condition precedent to the application of that provision is that the benefit in question is either “injury benefit” or “disablement benefit”. Section 19 of the Act, categorises the various kinds of benefit available under the Act. Section 19 (1) (a) (iv) deals with “sickness benefit” and describes it as being: “…..periodical payments to an injured person who is rendered temporarily incapable of work otherwise than as a result of employment injury.” Section 19 (2) (a) defines “injury benefit” and section 19 (2) (b) “disablement benefit”. These two benefits have the common element of being payable in respect of an accident “arising out of and in the course of … insurable employment or any prescribed disease being a disease due to the nature of such employment.”
It therefore follows that “sickness benefit” is by express statutory definition distinguishable from either “injury benefit” or “disablement benefit”. Since only the latter two types of benefit attract the application of section 54 (2) of the Act, it follows that sickness benefit is wholly outside that provision. The evidence on record discloses that the National Insurance Scheme benefit received by the respondent was sickness benefit. His injury had no connection with any employment of himself. There can therefore be no deduction of the amount received by the plaintiff as sickness benefit. I remark en passant that with effect from the commencement of Act No. 13 of 1983 (infra), no account can be taken of any kind of benefit under the Act received by a plaintiff.
Mr Luckhoo argued that the trial judge's award for loss of prospective earnings was in error because, inter alia, there was no credit given for pension obtainable from the respondent's employer upon his retirement. It was a contributory...
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