Baiden v. Solomon [1963] 1 GLR 488.

BAIDEN v. SOLOMON [1963] 1 GLR 488.

 JUDGMENT OF CRABBE J.S.C.

STATUTORY REF.
Page 490

Crabbe J.S.C. This is an appeal from the judgment of Charles J.[1962] 1 GLR 506, whereby he awarded to the plaintiff the sum of £G2,300 as compensation to the dependants of Theresa Jona Solomon (deceased) who died as a result of the negligent driving of the defendant.

In his writ of summons the plaintiff, as the administrator of the estate of Theresa Jona Solomon (deceased), claimed from the defendant the sum of £G4,212 for the negligence resulting in the death of the deceased. The statement of claim filed amplified the negligence alleged and then set out the basis of the claim in the following paragraphs:

“4. The action is brought on behalf of the plaintiff, and on behalf of the following dependants.

(a) Josephine Solomon, born on the 9th January, 1955;

(b) Emmanuel Solomon, born on the 10th June, 1957;

(c) Patrick L. Kobina Solomon, born on the 22nd July, 1958.

5. The said Theresa Jona Solomon was immediately prior to the said accident, aged 28 years, and was employed as a school teacher by the Catholic Educational Unit, at a salary of £G295 per annum. She was the sole support of the aforementioned dependants who by her death have lost such support.

PARTICULARS OF SPECIAL DAMAGES

(a) Funeral expenses incurred £G82

(b) Damages for the said dependants for 14 years loss of salary at £G295 per annum £G4,130

(c) Total damages claimed £G4,212”

Although the Fatal Accidents Act, 1846, 9&10 Vict., c. 93. of the United Kingdom as amended by the Law Reform (Civil Wrongs) Act, 1959, No. 12 of 1959 of Ghana was not pleaded there can be no doubt on the face of the pleadings that this action was brought under section 3 (1) (b) of the latter enactment.

Page 491

The notice of appeal originally filed contained the following grounds:

“(a) that the learned trial judge was wrong in refusing defendant-appellant to adduce evidence in disclaiming liability.

(b) that the learned trial judge erred in holding that the defendant-appellant counsel’s open pronouncement in court for a settlement without prejudice amounted to an estoppel or admission of negligence on the part of the defendant.

(c) that the learned trial judge misdirected himself as to the legal effect of the words ‘without prejudice.’

(d) that the damages awarded were too excessive.”

On the first day of the hearing of the appeal counsel for the appellant asked the leave of the court to argue an additional ground of appeal contained in a notice which had been filed shortly before the court sat that morning. This ground was stated in these terms: “That the record of proceedings is inaccurate and or deficient in respect of material particulars.” To this notice was attached an affidavit sworn to by the appellant verifying this so-called ground of appeal. Strictly this is no ground of appeal at all, but in view of the pertinacity of counsel and in order to clarify certain features of the proceedings which had aroused
the suspicion of the court, the court decided to be over indulgent to the appellant and it accordingly granted leave for this unusual ground to be argued.

This additional ground was argued first, but before dealing with it on the merits it is necessary to set out the sequence of events from the 18th January, 1962. On that date Charles J. adjourned the case to the 13th February, 1962, “for hearing” without giving any reasons for such adjournment. On the 13th February,
1962, the learned judge made the following minutes:

“Mr. R. S. Blay appears for the plaintiff.

Mr. Cann appears for the defendant.

Mr. Cann informs court that he has got in touch with the Northern Assurance Co. in Takoradi and he hopes that this matter will be settled within a fortnight.

By court: Adjourned to the 26th February, 1962, for report.”

On the 26th February, 1962, the learned judge recorded as follows:

“Mr. Cann informs court that the defendant will only contest the case on the question of quantum.

By court to Mr. Cann: By this I understand you to mean that defendant is admitting it was his negligence which caused the death of T. J. Solomon and that Josephine, Emmanuel and Patrick
are dependants.

By court: Mr. Cann says, ‘yes.’

By court: Hearing fixed for the 12th March, 1962.”

Page 492

After two further adjournments the case finally came before the court for hearing on the 5th June, 1962, and the following notes recorded by the learned judge show the preliminary proceedings that took place before the actual hearing commenced:

“Mr. Cann informs court that he has been trying to get in touch with the insurance company to be able to report to court what sum they are prepared to pay in view of the amount suggested by the plaintiff. The insurance company had instructed him to settle the matter for £G500.

By court: This case has been adjourned several times and on the 31st May, 1962, court informed Mr. Ata-Bedu who held Mr. Cann’s brief that court would hear the case on the 5th June, 1962, if a settlement is not reported. Court says in the circumstances counsel for the plaintiff would only have to lead evidence to prove damages as Mr. Cann informed court on the 26th February, 1962, that the defence will only contest the case on the question of quantum of damage. So that there would be no future misunderstanding court said to Mr. Cann, ‘By this I understand you to mean that the defendant is admitting it was his negligence which caused the death of T. J. Solomon and that Josephine, Emmanuel and Patrick are dependants.’ to which Mr. Cann replied, ‘Yes.’

Court reads note made above to Mr. Cann and he says it is correct but he made those admissions as the matter was in the process of negotiation and he made it without prejudice.

By court: It was quite obvious to me that you led me to believe that the only issue in dispute was the amount of damages to be awarded and I am not prepared to permit you to retract your admission as this will be highly prejudicial to the plaintiff and you are only seeking to do so as the court is ready to hear evidence of the damage suffered.”

According to counsel for the appellant the above quoted proceedings recorded by the learned judge were figments of his own imagination because they did not take place. This was a serious allegation to make against a judge whose impartiality and integrity we had no reason to doubt, and it therefore became necessary to adjourn the hearing of the appeal in order to afford the respondent the opportunity to file an affidavit. The respondent completely repudiated the facts contained in the appellant’s affidavit and then said, “That any allegation made by the defendant-appellant-applicant that the record contains matters which did not actually take place in court is untrue.”

After a very careful consideration of the affidavits and all the circumstances I am satisfied that there is no foundation whatsoever for these scandalous and false allegations against the trial judge. It is difficult to imagine that any person holding such a high and dignified judicial office could be so base, unless his faculties were seriously impaired, as to invent and record transactions which did not actually take place in court. To put it mildly, I deplore this attempt by counsel for the appellant to throw dust into the eyes of the court, and I hope that we shall no longer be witnesses to this sort of subterfuge in advocacy.

Page 493

An interesting point which emerges from the affidavit of the appellant is that he did not “at any time or in any manner” instruct his counsel, Mr. Cann, to admit negligence. This raises the question of the scope of the authority of counsel retained in a case. A counsel instructed to appear ought to have full control over the case and conduct it throughout to the best of his ability. “The duty of counsel,” said Lord Esher M.R. in Matthews v. Munster, (1887) 20 Q.B.D. 141 at p. 143, C.A.

“is to advise his client out of court and to act for him in court, and until his authority is withdrawn he has, with regard to all matters that properly relate to the conduct of the case, unlimited power to do that which is best for his client.”

Counsel does not need the consent of the client for a matter which ordinarily falls within the ambit of his authority, and if an admission is made by counsel, or an action is settled in court in the presence of the client his consent will be inferred and he will be precluded from saying that he did not understand the proceedings: see Chambers v. Mason [1858] 5. C.B.(N.S.) 59; 141 E.R. 23.

In Strauss v. Francis, [1866] l. L.R. Q.B. 379, it was contended that counsel had only authority to conduct a cause in the manner the client instructed him, and had no general authority so as to be able to bind the client by the withdrawal of a juror without his express consent. This contention was rejected by Blackburn J. with the following observations (Ibid. at p. 381)

“Mr. Kenealy has ventured to suggest that the retainer of counsel in a cause simply implies the exercise of his power of argument and eloquence. But counsel have far higher attributes, namely, the exercise of judgment and discretion on emergencies arising in the conduct of a cause, and a client is guided in his selection of counsel by his reputation for honour, skill, and discretion. Few counsel, I hope, would accept a brief on the unworthy terms that he is simply to be the mouthpiece of his client. Counsel, therefore, being ordinarily retained to conduct a cause without any limitation, the apparent authority with which he is clothed when he appears to conduct the cause is to do everything which, in the exercise of his discretion, he may think best for the interests of his client in the conduct of the cause: and if within the limits of this apparent authority he enters into an agreement with the opposite counsel as to the cause, on every principle this agreement should be held binding.”

It seems to me that one of the limits on this general authority of counsel is that he had no power to bind the client on matters collateral to the issues in the suit, unless the client expressly assents: see Swinfen v., Lord Chelmsford,[1860] 5. H. & N. 890 at p. 922; 157 E.R. 14 36 at p. 1449 per Pollock C.B.

In this case the negligence of the defendant was the foundation of the action, and it cannot be doubted that the decision of counsel concerning this all-important issue fell squarely within the scope of his authority.

Page 494

It follows, therefore, that any admissions made thereto by counsel in court would be binding on the defendant, and it would make no difference whether such an admission was made in the absence of the defendant; see Matthews v. Munster. [1887] 20 Q.B.D. 141, C.A.

In my judgment counsel has an implied authority to make admissions against his client during the actual progress of the case in court for the purpose of dispensing with proof on any issue in the case, and once this has been done the court will not hear any evidence. Where also counsel conducts the case in such a way as to lead to the inference that a certain fact is admitted by him, the court may treat that fact as proved for all purposes. See Urquhart v. Butterfield [1887] 37 Ch.D. 357, C.A., Stracy v. Blake [1836] 1 M. & W. 168; 150 E.R. 392., Bolton v. Sherman [1837] 2 M. & W. 395; 150 E.R. 811

If therefore the record of the proceedings is accurate, and I think it is, then the appellant was bound by the admission of his counsel, and the learned trial judge was justified in precluding him from adducing evidence on the issue of negligence. In my view there is no merit in the first ground of appeal and it must fail.

There is also one other complaint about the proceedings in court. At the close of the case for the plaintiff the learned trial judge recorded the following minute, “Mr. Cann informs court that he is not leading any evidence on damages.” Regarding this the appellant deposed in his affidavit as follows:

“3. That on the 26th June, 1962, after the plaintiff had closed his case, I was called by my counsel to give evidence and as I got to the witness box I heard the judge ask my counsel what I was coming to say and my counsel said I was going to give evidence in the case. The judge said to my counsel that he, the judge, would not allow me to give evidence and I was then asked to go back to my seat which I did.

4. I am informed by my counsel that according to the record of proceedings, he, counsel informed the court that he was not leading any evidence on damages.

5. That to the best of my recollection and belief this did not take place in court.

6. That I swear to this affidavit in support of my counsel’s contention that the record is inaccurate.”

However, during the course of his argument in this court counsel for the appellant, Mr. Cann, conceded that what the learned trial judge had recorded was correct but that he made that statement attributed to him because the judge had not allowed him to lead evidence on negligence. That being the case I cannot help but express utter surprise at counsel’s conduct by associating himself with the palpably false statements in the appellant’s affidavit.

Page 495

Be that as it may I think it is not open to a party, except on very strong grounds, to refuse to take further part in a hearing after an adverse interlocutory ruling has been made against him or after a remark has been made by the judge which leads him and his counsel to believe that the judge has prejudged the issues against him. Thus in Brassington v. Brassington,[1961] 3 W.L.R. 1411 at pp. 1414-1415 Holroyd Pearce L.J. said:

“Whatever be the truth of that matter, where parties refuse to call their evidence or take any further part in the trial, a very heavy onus lies upon them ‘to satisfy [the Court of Appeal] that . . the apprehension that, for them, it would have been futile to continue and that, had they done so, they would not have had a fair, proper or satisfactory hearing from the judge was truly justified’: per Lord Evershed M.R. in Badcock v. Middlesex County Council, (The Times July 29, 1960).

If it be open for counsel for the defendant or respondent to break off a losing battle when the court appears to be very much against him, and then to ask this court for a rehearing, it would create an opportunity for many applications to this court by undeserving litigants. They might, by an opportune manoeuvre, take advantage of a recourse to this court which would only be available to those who have suffered a real denial of justice. In our opinion, only in very exceptional circumstances should such relief be open to litigants who have voluntarily left the field before the battle is concluded.”

I think that the conclusion which I have arrived at in regard to the first ground of appeal also disposes of the second ground which in every respect is without substance.

In the third ground of appeal this court is called upon to determine the legal effect of the words “without prejudice.” In their endeavour to settle a dispute, the parties may often make statements “without prejudice.” The contents of such statements cannot be tendered in evidence without the consent of the parties. In law “without prejudice” statements apply to negotiations between the parties personally, or between their solicitors, which take place with a view to compromising the suit. In Walker v. Wilsher[1889] 58 L.J.Q.B. 501 at p. 502, C.A. Lindley L.J. said:

“I think the words ‘without prejudice’ mean without prejudice to the position of the writer of the letter. It does not affect his position outside and independently of the letter. If the terms proposed in the letter are accepted, a complete contract is established, and the letter, although written without prejudice, operates so as to alter the old state of things and to establish a new one. A contract is constituted of which specific performance would be given. Supposing that a letter is written without prejudice, it is according alike to authority and to good sense that the answer also should be without prejudice.”

I know of no law that counsel acting within the scope of his authority can make statements without prejudice to the judge trying the case. I think that this third ground of appeal is utterly misconceived.

Page 496

The final question for our decision on this appeal is whether the damages were excessive. The general principles which the appellate court should apply in determining this question are now well settled. Whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would itself have awarded a different figure if it had tried the case at first instance. Even if the court of first instance was a judge sitting alone, as in this case, then, before this court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or short of this, that the amount awarded is either so inordinately low or so in ordinately high that it must be a wholly erroneous estimate of the damages.

These are the principles which must be borne in mind in considering the facts of this case. The following statement of the facts is taken from the judgment of the trial judge [1962] 1 GLR 506 at p. 507.

“The deceased who was married to J. E. Solomon was born on the 25th April, 1932. There are three children of the marriage viz. Joseph Solomon born on the 9th January, 1955, Emmanuel Solomon born on the 10th June, 1957, and P. L. K. Solomon born on the 22nd July, 1958. The deceased died on the 30th April, 1960, as a result of a motor accident due to the negligence of the defendant. At the time of her death she was a certificate A (post secondary) teacher earning a salary of £G295 per annum. The salaries of teachers have been revised since her death and if she was alive her salary would be £G415 per annum. She was an efficient teacher and she was qualified to be promoted a senior teacher on the salary scale of £G525-£G700 per annum.

At the time of her death the three children were solely dependent on her, and she paid £G8 per month to her mother for the purpose of feeding the children. She also had to provide them with clothing and a home. Her widower has been pursuing studies in the United Kingdom for the past three years, but there is no evidence as to when he would conclude his studies and secure employment. There is no evidence that he has been contributing towards the maintenance and education of the children but I must take into account the reasonable prospect of his being able to do so in future.”

After stating these facts the learned trial judge concluded his judgment in these words (Ibid)

“Having regard to all the circumstances of the case including the ages of the children and the reasonable prospects of future promotion of the deceased I consider the sum of £G2,300 a reasonable sum to award as damages.

I therefore enter judgment in favour of plaintiff against the defendant for the sum of £G2,300 with costs fixed at ninety guineas inclusive of fee to counsel.”

Page 497

The basis of the action was the pecuniary loss suffered by the dependants as a result of the deceased’s death. The mere existence of the relationship of parent and child is not sufficient to show pecuniary loss, and does not even raise a presumption of such loss. The question of dependency is one of fact and cannot be presumed from the legal obligation to support. The evidence in this case clearly shows that the three children of the deceased depended upon her during her lifetime when she was employed as a school-teacher. But it was contended on behalf of the appellant that the deceased had resigned and was not working at the time of her death therefore she was not earning any salary or wages from which she could support the children. Moreover, she was going to England on a study course for an indefinite period. It is not, however, necessary that the deceased should have been actually earning a salary or wages at the time of her death, if there is a reasonable expectation that a salary or wages will be earned in the future, with the result that financial benefits will accrue to the dependants. It is also not essential that there should be strict proof of pecuniary advantage actually derived from the deceased prior to her death, and though a future loss may be taken into account it must be the loss of a “reasonable expectation of pecuniary advantage” and not a “mere speculative possibility.” The fact that the deceased has in the past contributed to the support of the dependants is sufficient evidence of a reasonable expectation of pecuniary benefit and from that fact it may be presumed that the support would be continued in the future. “The fact of past contribution may be important in strengthening the probability of future pecuniary advantage, but it cannot be a condition precedent to the existence of such a probability”: per Lord Moulton in Taff Vale Rly. Co. v. Jenkins [1913] A.C. 1 at p. 10, H.L.

The measure of damages is the pecuniary loss which has been suffered or is likely to be suffered by each of the three children as the result of the death of their mother. The method of assessing damages was stated thus by Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd. (No. 2) [1942] 1 All E.R. 657 at p. 665, H.L.:

“The starting point is the amount of wages which the deceased was earning the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years’ purchase. The sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependant, and other like matters of speculation and doubt.”

In applying this rule there are certain factors which should be taken into consideration, such as the expectation of the life of the deceased and of each of the dependants claiming compensation. Taking these and other factors into consideration the method of calculating the damages based

Page 498

on Lord Wright’s rule and other decided cases has been admirably and concisely summarised thus in Charlesworth on Negligence (3rd ed.), pp. 560 and 561, para. 909:

“Method of calculating damages. When the income of the deceased was derived from his own earnings, ‘it then becomes necessary to consider what, but for the accident which terminated his existence, would have been his reasonable prospects of life, work and remuneration; and also how far these if realised, would have conduced to the benefit of the individual claiming compensation.’ The manner of arriving at the damages is (a) to ascertain the net income of the deceased available for the support of himself and his dependants; (b) (i) to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, whether for maintenance or pleasure, or (ii) what should amount to the same thing, to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants; and then (c) to capitalise the difference between the sums (a) and (b) (i) or (b) (ii) (sometimes called the ‘lump sum’ or the ‘basic figure’) by multiplying it by a figure representing the proper number of years’ purchase arrived at having regard to the deceased’s expectation of life, the probable duration of his earning capacity, the possibility of his earning capacity being increased or decreased in the future, the expectation of life of the dependants and the probable duration of the continuance of the deceased’s assistance to the dependants during their joint lives. From the sum thus ascertained must be deducted any pecuniary advantage received by the dependants in consequence of the death.”

Adopting this method of calculating the damages and applying it in this case it is difficult to say, apart from the elements of the children’s ages and the possibility of future earnings being increased, what other important factors the learned trial judge took into consideration. With respect it is not clear from the judgment how the learned trial judge arrived at the figure £G2,300, because he made no arithmetical calculations of the various elements which should determine his final figure. The expression, “Having regard to all the circumstances of the case,” which appears in the judgment does not explain what irrelevant factors the learned judge took into account or what relevant ones he left out of his consideration. But failure to compute the loss by any statistical or actual test a difficult and wearisome exercise in any case-does not vitiate the assessment if fair and in accord with common sense. Thus in the recent case of Daniels v. Jones,[1961] 1 WLR 1103, C.A., where an arithmetical error by the trial judge in the calculation of the total dependency was alleged as one of the grounds of appeal Holroyd Pearce L.J. stated the following basic principle (ibid. at p. 1110, C.A.):

“Since the question is one of actual material loss, some arithmetical calculations are necessarily involved in an assessment of the injury. But they do not provide a substitute for common sense. Much of the calculation must be in the realms of hypothesis, and in that region arithmetic is a good servant but a bad master.”

Page 499

Willimer L.J. also said (Ibid at p. 1113, C.A.)

“. . . I do not think that in a case of this character an appellant can succeed in this court merely by showing (assuming that he can show) that this or that figure is erroneous, or this or that calculation is inaccurate. In what is essentially a jury question the over-all picture is what matters. It is the wood that has to be looked at, and not the individual trees.”

The learned trial judge in this present case made no actuarial calculations of the loss suffered by each of the dependants, but he appears to have adopted the method recommended in Daniels v. Jones and was therefore able to reach a common-sense decision.

Where a judge has not given adequate or precise reasons or one cannot see from his judgment exactly what he took into account; whether he took into account something he ought not or omitted something he should, this court can only look at the total amount and consider whether it is excessively high or unreasonably low and so amounts to an erroneous estimate: see Dolbey v. Goodwin,[1955] 1 WLR 553 at p. 554, C.A. per Lord Goddard C.J.

Given the best consideration I can to the facts of this case I have come to the conclusion that the award by the learned trial judge of the sum of £G2,300 was fair and reasonable and I do not feel inclined to interfere with it.

In the result I would dismiss the appellant’s appeal with costs assessed at £G32 5s. in favour of the respondent.

JUDGMENT OF OLLENNU J.S.C

Ollennu J.S.C.I agree.

JUDGMENT OF AKUFO-ADDO J.S.C

Akufo-Addo J.S.C. I also agree.

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