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Court of AppealPartially Allowed

Butt v Khan [1978] KECA 24 (KLR)

Court of Appeal for East Africa
1 February 1978
ELE. J. E. LawSWS. W. W. WambuziCMC. B. Madan
4,520 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan appeal court cut a child's injury payout but confirmed that very young children hurt in road accidents are rarely to blame.

What this practically means

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Executive summary

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This is an appeal by the defendant against a High Court decision (Sachdeva J) awarding an infant plaintiff, struck by the defendant's car while crossing Karakoram Road, Nairobi, general damages of Kshs 400,000 and special damages of Kshs 3,276. The appeal did not challenge the finding of negligence but contended that the plaintiff, aged 7½ years, was contributorily negligent and that the general damages were manifestly excessive. The court (Law, Wambuzi and Madan JJA) unanimously dismissed the appeal on contributory negligence, following Andrews v Freeborough and Gough v Thorne: a very young child cannot ordinarily be blamed, and the plaintiff's act was at most an error of judgment. Madan JA added that normally a person under ten years cannot be guilty of contributory negligence, and that even travelling within the speed limit may be negligent where a driver knew children crossed the road near schools. On quantum, all three judges agreed the trial judge erred in fixing the probability of post-traumatic epilepsy at 25% when the evidence, supported by medical texts on closed-head injuries, indicated 5%, and five years had passed without any sign of epilepsy. Law JA, with Wambuzi JA concurring (though considering even the reduced figure high), reduced general damages to Kshs 300,000, applying the principle that an appellate court interferes only where the award represents an entirely erroneous estimate. Madan JA dissented on quantum, holding the award fair global compensation for a child rendered 50% permanently disabled. The decree of the High Court was amended accordingly, with each party bearing their own costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiff, a child of 7½ years, was guilty of contributory negligence in crossing the road
  2. 2.Whether the award of general damages of Kshs 400,000 was manifestly excessive
  3. 3.Whether the trial judge erred in his assessment of the probability of post-traumatic epilepsy developing

Key legal issues

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01

Contributory negligence of a young child

Holding

A child of 7½ years who was struck when almost half-way across the road was not contributorily negligent; at most he committed an error of judgment.

Reasoning

The court applied Andrews v Freeborough and Gough v Thorne, holding that the test is whether the child was of such an age as to be expected to take precautions for his own safety and that a finding of contributory negligence should only be made if blame could be attached to the child. Attorney General v Vinod, where an 8-year-old was held 10% negligent, was distinguished on its peculiar facts.

p. 2
02

Excessive quantum of general damages

Holding

The award of Kshs 400,000 was excessive because the trial judge erred in fixing the chance of post-traumatic epilepsy at 25% when the evidence and medical texts supported 5%; general damages were reduced to Kshs 300,000.

Reasoning

Medical textbooks established that the incidence of epilepsy in closed-head injury cases is not more than 5%, and more than five years had passed without any manifestation of epilepsy, making the risk remote in the extreme. The trial judge's overestimate must have influenced the quantum. Madan JA dissented, treating the award as a global sum of fair compensation.

p. 3
03

Standard for appellate interference with damages

Holding

An appellate court will interfere only where the judge proceeded on wrong principles or misapprehended the evidence in a material respect and so arrived at a figure inordinately high or low.

Reasoning

The court restated the classic test for appellate review of damages: the award must be so inordinately high or low as to represent an entirely erroneous estimate. Here the misapprehension lay in the assessment of the epilepsy risk, not in the assessment of permanent disability, which findings were left intact.

p. 3

Legal principles established

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  • An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate.
  • A very young child cannot normally be guilty of contributory negligence; blame should be attributed only if the child was of an age to be expected to take precautions for his or her own safety.
  • Speed within the permitted limit may still constitute negligence where the driver knew children were crossing the road near schools.

Court orders

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  1. 1.Appeal against the finding of contributory negligence dismissed
  2. 2.General damages reduced from Kshs 400,000 to Kshs 300,000
  3. 3.Decree of the High Court amended accordingly
  4. 4.No order as to the costs of the appeal; the parties to bear their own costs

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

EL
majority

Wrote the judgment

Wrote the leading judgment. Upheld the trial judge's finding that the 7½-year-old plaintiff was not contributorily negligent, following Andrews v Freeborough and Gough v Thorne. Found the assessment of general damages of Kshs 400,000 excessive because the trial judge erred in fixing the probability of post-traumatic epilepsy at 25% when the evidence supported 5%. Would reduce general damages to Kshs 300,000 and make no order as to costs.

The learned judge in my respectful view, erred in holding that the probable chance of epilepsy supervening in this case was as high as 25%.p. 3
SW
majority

Wrote the judgment

Agreed on contributory negligence but separately reasoned that the damages were inordinately high, comparing Attorney General v Vinod and Oluoch v Robinson. Considered Kshs 300,000 proposed by Law JA 'on the high side' but concurred in it and in the other orders proposed.

I am alive to the difficulties attendant upon determining compensation in money terms... But I would think that in the circumstances of this case and for the foregoing reasons an award of Kshs 300,000 proposed by Law JA is on the high side but I would concur in the proposal and also in the other orders as he proposes.p. 4
CM
partial dissent

Wrote the judgment

Dissented on quantum. Agreed the trial judge erred in fixing the epilepsy risk at 25%, but held the award of Kshs 400,000 should be upheld as a global sum of reasonably fair compensation, emphasising changed economic conditions in Kenya. Would have dismissed the appeal in its entirety; acquiesced in the majority result and concurred in the costs order.

I am of the opinion that the award made by the learned judge should be upheld... As Wambuzi JA and Law JA are both of the opinion that the award of general damages be reduced from Kshs 400,000 to Kshs 300,000, the order will be to allow the appeal to this extent, and the decree of the High Court will be amended accordingly.p. 6
On appeal from
High Court of Kenya
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal for East Africa over a High Court decision

Relief refused

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Finding of contributory negligence against the plaintiff

The child had committed at most an error of judgment; contributory negligence should not be attributed to a very young child

p. 2

Complete reversal of the general damages award (Madan JA's preferred view was upheld only by himself)

The majority held the trial judge overestimated the epilepsy risk and that the award required partial reduction

p. 3

Costs

No order as to the costs of the appeal; the parties to bear their own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate.
p. 3appellate review of damages
Indeed, I am of the opinion the practice of the civil courts ought to be that normally a person under the age of ten years cannot be guilty of contributory negligence, and thereafter, insofar as a young person is concerned, only upon clear proof that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.
p. 4contributory negligence of children
The safe speed on an occasion like this is that which will bring the driver out of the area unscathed and free from accident.
p. 5speed as prima facie negligence
the order will be to allow the appeal to this extent, and the decree of the High Court will be amended accordingly.
p. 6disposition - reduction of damages
Notwithstanding this partial success, I would make no order as to the costs of this appeal and would leave the parties to bear their own costs.
p. 3costs order

Issues in the judgment

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minor

The judgment contains inconsistent spellings and citations of the same authorities and experts (e.g. 'Femandes v People Newspapers Ltd [1972] EACA 63' and 'Gomes v Attorney General, Uganda [1969] EA 259' vs '[1969] EACA 259'; the expert is called 'Dr Ruberti', 'Dr Rubert' and 'Dr Nevill'/'Mr Nevill' in different passages).

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Butt v Khan [1978] KECA 24 (KLR)", Case Analysis (1978). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1978/24/eng@1978-02-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.