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MAGBOEKWO
V.
SIMON ENECHUKWU
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
22ND DAY OF MAY, 1954
2PLR/1953/28 (WACA)
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OTHER CITATION(S)
2PLR/1953/28 (WACA)
(1954) XIV WACA PP. 512 – 514
LEX (1954) – XIV WACA 512 – 514
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
DE COMARMOND, Ag. C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
MAGBOEKWO – Appellant
AND
SIMON ENECHUKWU – Respondent
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ORIGINATING COURT(S)
Appeal by plaintiff: No. 198/1953.
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REPRESENTATION
R. T. E. Wilcox — for Appellant
D. O. Ibekwe — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURIES LAW – NEGLIGENCE:- Injury – Plaintiff’s, contributory negligence – Reasonableness of conduct – Cause of damage.
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CASE SUMMARY
Plaintiff (now appellant) was a passenger on defendant’s lorry; his seat was badly fixed and came out of its position; he fell and broke the bones of his hand badly. The defendant’s driver offered to take him to hospital, but he was afraid his hand might be amputated there and chose to go to a native doctor for treatment. Some days later he was taken to hospital suffering from a septic wound of his hand which was festering and gangrenous, and his arm was amputated. The doctor gave evidence that he was convinced if the plaintiff had come to hospital immediately, he might have been saved from amputation, and that the fracture could have been cured.
The plaintiff sued for damages for the loss of his arm which he alleged was due to the negligence of the defendant’s servants. The trial Judge gave damages on the footing of the fracture of the bones: he held that the amputation was a result of plaintiff’s contributory negligence and too remote besides; also that the plaintiff not having chosen the course which a reasonable man would take, the defendant was not responsible for the further damage caused by the plaintiff’s own act. The plaintiff appealed.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal and increasing the damages awarded) that:
(1) There being a widespread strong belief in native doctors, it could not be said that the plaintiff, suffering from shock and great pain as he was, had acted unreasonably in that sudden emergency in choosing to go to a native doctor for treatment.
(2) The doctor’s evidence meant no more than that if plaintiff had gone straight to hospital, there was a high probability that amputation would not have been necessary: it could not be held that there was no direct physical connection between the negligence and the amputation.
Case cited:-
(1) Weld-Blundell v. Stephens (1920), A.G. at p. 986.
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MAIN JUDGMENT
The following judgment was delivered:
FOSTER-SUTTON, P.
In this case the plaintiff claimed damages for the loss of his right arm which he alleged was due to the negligence of the defendant’s servant.
As is usual in these cases there was considerable conflict in the evidence, but the facts as found by the learned trial Judge are that on the 11th July, 1951, the plaintiff boarded a motor lorry, driven by the defendant’s servant, as a passenger bound from Port Harcourt to Onitsha, and that during the journey a seat upon which the plaintiff was sitting, due to the negligent fixing of it by the defendant or his servants, came out of its position and that the plaintiff fell with his right hand under the seat the weight of which, coupled with the force with which it fell, fractured the bones of his right hand.
In the Court below there was a second defendant, but since the learned trial Judge found that the motor lorry owned by him had no connection with the accident and there has been no appeal against that finding he is not a party in this appeal.
Immediately after the accident the defendant’s driver offered to take the plaintiff to the Aba hospital and the driver of the second defendant’s motor lorry offered to take him to the hospital in Port Harcourt.
The trial Judge found that he refused to go to either hospital and elected to be taken to a native doctor at Aba. The defendant’s driver gave evidence that the plaintiff said “he was afraid of the hospital as his hand might be amputated”, and thereupon a man standing at the scene suggested the plaintiff should go to a native doctor at Aba.
Another witness called by the defendant, Elizabeth John, testified that persons from a nearby village came on the scene and that “most of them suggested that he should be taken to one of the two native doctors in the village who could reset his hand”.
Seven days after the accident the plaintiff was taken by a friend of his to the Port Harcourt hospital where he was admitted and found to be suffering from a septic wound of the right hand which was in a festering, gangrenous condition.
The doctor who attended the plaintiff in the hospital gave evidence that the treatment and amputation was a result of the· septic wound; he also said:
“I am convinced if the plaintiff had come into the hospital immediately, he might have been saved from amputation. The fracture could have been cured.”
The learned trial Judge held that “the amputation was a result of the contributory negligence caused by the refusal of the plaintiff to go to the hospital and have the fracture treated but instead entrusted himself to a native doctor”, that the amputation was too remote, and that as he did not choose the course a reasonable man would take the defendant could not be held responsible for the further damage caused by the plaintiff’s own act. He, therefore, awarded damages only on the footing of a fracture of the bones of the right hand, and it is against that decision that the plaintiff has appealed.
Counsel for the appellant did not dispute the findings of fact, confining himself to the submission that the learned trial Judge erred in holding that the plaintiff acted unreasonably, and that the amputation of his arm was the result of his own contributory negligence in choosing the course he did.
The general rule undoubtedly is that no person aggrieved by an injury is entitled to increase his claim for damage by any voluntary act. A person is entitled to recover only those damages which he has incurred while acting reasonably, and, if acting reasonably he could have minimised or reduced the damage that he has sustained to a smaller amount, it is only that smaller amount that he can recover. I think, however, that in considering that proposition in regard to such a case as this, one must, in estimating the standard of reasonableness, take into account all the circumstances affecting the plaintiff.
It seems to me that the decision in this appeal depends upon the answer to either of the following questions, firstly, did the plaintiff act unreasonably in choosing the course he did, and secondly, can it be said with reasonable certainty that an independent cause intervened between the defendant’s negligence and the necessity for the amputation.
In determining the answer to the first question I think it is important to remember that the accident occurred in Nigeria where it is common knowledge that a considerable proportion of the population still hold a strong belief in their native doctors. In my view this is not an occasion for considering the merits of such belief, it is the widespread existence of it which is relevant.
There can be no doubt that the plaintiff was in great pain as a result of the crushing of his hand, and the doctor said it is safe to assume that it bled a lot. The defendant’s driver said, “I cried bitterly when I saw the injury to the plaintiff.”
In all the circumstances can it fairly be said that the plaintiff must be regarded as having acted unreasonably in making the choice he did, suffering from shock and in great pain as he undoubtedly was, and bearing in· mind the belief in native doctors to which I have already referred? I think an injustice would be done by holding that he did, if in a sudden emergency he makes a choice which he might reasonably think proper; although those before whom the case comes for trial are, with more time to consider the matter and not sharing the belief in native doctors, able to see that the course which he adopted was not in fact the best. As Lord Sumner said in Weld-Blundell v. Stephens (1): “The trial of an action for damage is not a scientific inquest into a mixed sequence of phenomena … It is a practical inquiry.”
If I am right in my view as to the answer to the first question, the plaintiff is clearly entitled to damages on the footing contended for by his counsel.
The answer to the second question must largely depend upon the medical evidence. As I have already said the doctor stated that he was “convinced if the plaintiff had come into the hospital immediately, he might have been saved from amputation. The fracture could have been cured “. I think the inference to be drawn from the doctor’s evidence is that had the plaintiff gone straight into hospital at Port Harcourt his hand would not have become as badly infected as it did, and there is a high probability that amputation would not have been necessary. I do not think his evidence ought to be put any higher than that, and I am not, therefore, prepared to hold that there is no direct physical connection between the negligence and the amputation.
For the reasons I have given I would allow this appeal, and amend the judgment of the Court below by increasing the special damages awarded to £30, allowing loss of earnings for six months instead of two months, and by increasing the general damages to £500.
The appellant to have his costs on this appeal fixed at £38 6s. 0d.
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DE COMARMOND, AG. C.J., NIGERIA.
I concur.
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COUSSEY, J. A.
I concur.
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Appeal allowed; damages increased.
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