This was an appeal by the plaintiff against a judgment of the High Court dismissing his claim for damages for negligence against the defendants. The claim was based on a motor accident in which his vanette was so badly damaged that it had to be sold as a write - off.
During the trial a sketch plan was never produced on objection by counsel for the plaintiff that it had not been disclosed on discovery. Counsel for the plaintiff objected to the second defendant's allegation that the first defendant was dazzled because the plaintiff had not dipped 5 his lights since this was not pleaded. He contended that since this allegation was only raised during his final submission it should be excluded. In commenting on his apparent acceptance of this evidence the Commissioner said that this evidence had not been challenged. However the Supreme Court decided to interfere with the Commissioner's findings on the facts on the ground that the reason given for arriving at that conclusion were not supported by the evidence on record.
As regards the damages claimed, the Commissioner made no assessment because the claim was dismissed. The plaintiff had claimed damages for the loss of use of his car, special damages and damages for injury 15 to his skull, rib, knee and tooth.
Held:
(i) When a case concerns a motor accident, all possible material evidence should be put before the court and in a case where the material evidence had not been disclosed on discovery, the court should offer an adjournment, if counsel has been taken by surprise, the costs to be paid by the defendant and then allow the production of this evidence.
(ii) Where a party refers to evidence not pleaded, the proper course is for the other party to object immediately to this reference, thereupon it would be the duty of the court to decide whether or not it is necessary to grant an adjournment to the other party and whether to allow an amendment of the pleadings subject to an order for costs against the defendant and where it is necessary to cross - examine a witness on this issue, it is for the party affected to apply to recall the witness to rebut the unexpected evidence.
(iii) Where a defence not pleaded is let in evidence and not objected to by the other side, the rule is not one that excludes from consideration of the court the relevant subject matter for decision simply on the ground that it had not been pleaded. It leaves the party in mercy and the court will deal with him as is just.
(iv) The appellate court would be slow to interefere [sic] with a finding of fact made by a trial court, which has the opportunity and advantage of seeing and hearing the witnesses but in discounting 40 such evidence the following principles should be followed: That:
"(a) by reason of some non-direction or mis - direction or otherwise the judge erred in accepting the evidence which he did accept; or
(b) in assessing and evaluating the evidence the judge has taken into account some matter which he ought not to have taken into account, or failed to take into account some matter which he ought to have taken into account; or
(c) it unmistakably appears from the evidence itself, or from the unsatisfactory reasons given by the judge for accepting it, that he cannot have taken proper advantage of his having seen and heard the witnesses, or
(d) in so far as the judge has relied on manner and demeanour, there are other circumstances which indicate that the evidence of the witnesses which he accepted is not credible, as for instance, where those witnesses have on some collateral matter deliberately given an untrue answer."
(v) Where there is a likelihood of an appeal it is proper for a trial court to assess the damages which would have been awarded had judgment been found in favour of the plaintiff.
(vi) A person whose car is so damaged that it is beyond repair cannot claim loss of use forever, and in default of any other evidence it is quite impossible for any court to make an assessment of damages.
(vii) Where a man is deprived of the use of his property by the wrongful act of another, a claim for damages may be sustained and damages in such a case are real and not merely nominal even though no actual pecuniary loss is proved.
(viii) A sum of K500 was awarded for personal injuries.
