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High CourtPartially Allowed

Plaintiff v 1st and 2nd Defendants and Third Party (Road Accident Damages Assessment)

High Court of Kenya
2 October 1989
JBJoseph Butler-Sloss
1,063 words in judgment
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The bottom line

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Kenya's High Court awarded a road accident victim nearly Kshs 96,000, showing how consent liability agreements shape final damage payouts.

What this practically means

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Executive summary

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This was an assessment of damages following a road traffic accident of February 22, 1985 on the Maua-Meru road, in which the plaintiff, then a District Environment Officer, suffered facial and other injuries when the vehicle in which he travelled collided with one driven by the 1st defendant, allegedly the servant of the 2nd defendant. The plaintiff sued for negligence, vicarious liability, special damages of Kshs 7,600 and general damages; the defence admitted the accident but denied negligence, alleging the negligence of the plaintiff's driver, and a third party notice issued against the Attorney-General on a vicarious liability basis. On July 13, 1989, by consent before Dugdale J, interlocutory judgment was entered for the plaintiff against the defendants for 95% of his loss, and for the defendants against the third party for 10% of the defendants' liability. At the assessment hearing, the plaintiff testified and relied on a medical report by Dr L M Macharia detailing bilateral periorbital oedema, loss of an upper incisor, a 7 cm facial cut wound, hip tenderness and nasal septum and frontal sinus fracture, with permanent disability from a depressed nasal bridge affecting tear drainage and loss of smell. Special damages were agreed at Kshs 885. Butler-Sloss Judge assessed general damages at Kshs 100,000 and, applying the consent apportionment, entered final judgment for the plaintiff against the defendants for Kshs 95,841 with interest and costs, and for the defendants against the third party for Kshs 9,584 with costs, all with interest at court rates from October 2, 1989 until payment.

Key legal issues

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01

Quantum of general damages for facial injuries, loss of smell, nasal septum and frontal sinus fracture with permanent disability

Holding

General damages assessed at Kshs 100,000, taking into account hospital treatment, permanent disability, loss of sense of smell and excessive sneezing/tearing

Reasoning

The court relied on the plaintiff's testimony and Dr Macharia's medical report listing bilateral periorbital oedema, loss of right upper incisor and chipping of the left, a 7 cm cut wound, hip tenderness and nasal septum/frontal sinus fracture. Permanent disability comprised the depressed nasal bridge interfering with the naso-lacrimal duct causing watering eyes, and loss of two upper incisor teeth with dependence on artificial teeth. Chest pains were treated as possibly subjective.

p. 2
02

Effect of the consent interlocutory judgments on final award

Holding

Final judgment computed at 95% of assessed damages against defendants, with 10% contribution recoverable from the third party (Attorney-General)

Reasoning

Following the consent recording before Dugdale J on July 13, 1989, the defendants' liability to the plaintiff was fixed at 95% of loss and damages, and the third party was to contribute 10% of the defendants' liability. The judge applied these percentages arithmetically: 95% of Kshs 100,000 (Kshs 95,000) plus 95% of the agreed special damages of Kshs 885 (Kshs 841), and one-tenth of the damages against the third party.

p. 1

Legal principles established

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  • Where liability has been apportioned by consent (defendants 95%, third party 10% of defendants' liability), final judgment must be calculated by applying those percentages to the assessed general and special damages

Court orders

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  1. 1.Final judgment for the plaintiff against the defendants in the sum of Kshs 95,841 special and general damages with interest at court rates from October 2, 1989 until payment
  2. 2.Defendants to pay the plaintiff's costs of the suit, to be taxed if not agreed, with interest at court rates from taxation or agreement until payment
  3. 3.Final judgment for the defendants against the third party in the sum of Kshs 9,584, being ten percent of the damages awarded against the defendants, with interest at court rates from October 2, 1989 until payment
  4. 4.Third party to pay the defendants' costs of the third party proceedings, to be taxed if not agreed, with interest at court rates from taxation or agreement until payment
Jurisdiction invoked
Original civil jurisdiction of the High Court in a personal injuries suit; assessment of damages following consent interlocutory judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Plaintiff v 1st and 2nd Defendants and Third Party (Road Accident Damages Assessment)", Case Analysis (1989). . Source:

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