1. The appellants were sued before the Magistrate court for inter alia General damages arising from a road traffic accident that occurred on 15th April 2018. It was stated in the Statement of claim paragraph 5, that the Respondent then plaintiff was lawfully walking as a pedestrian along Ngong Road near Ngong Police station when Motor Vehicle Reg No. KCH 166M was recklessly, negligently or carelessly moved, controlled, managed by the 2nd appellant that it knocked down the respondent hence causing the severe bodily injuries to her and as a result of the accident, the respondent suffered loss, Damage and injuries.
2. The Appellants filed statement of defence denying the respondent claim hence the trial which commenced before the Magistrate court culminating in judgement in favour of the respondent.
3. Dissatisfied with the judgement of the Trial court, the appellants preferred the present appeal setting out the following ten (10) grounds;
i. THAT the learned trial Magistrate erred in law and fact in failing to consider and appreciate the pleadings, evidence and submissions placed on record by the appellants on the occurrence of the accident and/or circumstances of the material accident and thereby reached a wrong finding on the issue of liability and accordingly holding the appellants 100% liable for the accident.
ii. THAT the learned trial Magistrate erred in law and in fact in making a finding that the production of the police abstract was conclusive proof of the occurrence of the material accident where the fact of the occurrence thereof had been denied by the appellants.
iii. THAT the learned trial Magistrate erred in law and in fact in dismissing the appellants Defence that there was no contact between the subject Motor Vehicle and therefore the occurrence and/or causation of the accident was not proved.
iv. THAT the learned trial Magistrate erred in law and in fact in making that the decision by the investigating officer to charge the 2nd appellant in Traffic case no1153 of 2018 even though the charge was not proved was prima facie evidence of negligence on his part.
v. THAT the learned trial Magistrate erred in law and in fact in considering and giving undue weight to the evidence of PW2 who was neither the investigating officer of the material accident and could not therefore testify on the contested facts on the material accident in the absence of production of the police investigation file which she referred to at the trial
vi. THAT the learned trial Magistrate erred in law and in fact in making a finding that the evidence of the appellant was corroborated yet the alleged corroborating witness was also the plaintiff pursuing similar remedies against the appellant.
vii. THAT the learned trial Magistrate erred in law and in fact in failing to properly analyse the testimony of the 2nd Appellant and thereby reached a wrong conclusion that he had swerved off the road and landed a ditch and knocked the Respondent while off the road.
viii. THAT the learned trial Magistrate erred in law and in fact in making an award of 1000,000 in general damages which was manifestly excessive and not supported by the pleadings, evidence and medical evidence placed on record at the trial.
ix. THAT the learned trial Magistrate erred in law in distinguishing the judicial authorities cited by the appellants purely on account of lapse of time and thereby misapprehended the principle of the application of judicial precedents in determination of suits.
x. THAT the learned trial Magistrate erred in law and in fact in failing to make a determination on the issues framed by the appellants and proceeded to narrow down and frame fresh issues for determination and thereby failed to appreciate the Defence presented by the appellants.
4. The appellants thus pray that the appeal be allowed, the judgment be set aside and substituted with an order dismissing the respondent suit with cost. In the alternative the appellants request of this court for a fresh evaluation of the evidence and make a finding consistent with the pleadings and the evidence placed before the trial court.
APPELLANTS SUBMISSIONS:
5. The appellant submits that the central issue that this court should determine is whether the accident did indeed occur and if it did, whether the appellants were responsible and therefore liable for the occurrence. It is submitted that the respondent bears the responsibility to prove the occurrence of the accident and persons responsible for it under section 7 of the Evidence Act. The appellant submits that the respondent had failed to prove that the accident occurred or that the appellant was responsible for its occurrence. Further, counsel submits that the credibility of PW1 evidence is materially affected by the contradictions in his testimony. The contradiction pointed out by counsel is the contention by the respondent that the vehicle was driven at high speed yet according to his testimony he was hit from behind and wondered how he could see that the vehicle was driven at speed. The appellant also took issue with the court reliance on the police abstract produced by Pw2 arguing that the mere reporting of an accident does not amount to proof of its occurrence. That the court erred in equating the production of the police abstract as conclusive proof of both the occurrence and attribution of liability and yet the evidence of the 2nd appellant (DW2) was clear that no accident occurred and at no point did he hear any impact, screams or witness any injured party.
6. On whether the award of damages was inordinately high, the appellant submits in the affirmative and fault the trial court for not giving due weight to its submissions on quantum. The following cases were referred to as authorities on the circumstances upon which an appellate court would interfere with the quantum of damages awarded by the trial court. Catholic Diocese of Kisumu vs Sophia Achieng Tete Civil Appeal No 284of 2001 (2004) 2 KLR 55 and Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini vs A.M Lubia & Olive Lubia (1982-88)1 KAR727 730, Kneller J.A.
7. The appellant had proposed an amount of Ksh 80,000 as general damages which it submits was disregarded by the trial court on account of lapse of time.
Analysis and Determination
The issue for determination is whether the trial court erred in holding the appellants wholly liable and in the award of general damages.
8. This being the first appellate court, it is the duty of this court under section 78 of the civil procedure Act to re-evaluate the evidence and come up with its own conclusions bearing in mind unlike the trial court it never had the advantage of hearing the witnesses and observing their demeanours. See the case of Abok James T/A A.J Odera & co. Advocates vs John Patrick Machira T/A Machira & co Advocate (2013) eklr. The court should also not interfere with the findings of the trial court unless the same were based on no evidence or on misapprehension of the evidence or the trial court applied the wrong principles in reaching its findings. (See Selle & Another v Associated Motor Boat Co. Ltd & Another (1968) EA 123.
9. The principles on which a court can interfere with an award for damages was stated by Madan JA in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] E.A 898 and restated by Kneller JA in Kemfro Africa Limited t/a Meru Express Services (1976) & Anor. vs Lubia & Anor, No. 2 [1987] KLR 30 that:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former court of appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
10. On liability the law is as provided for in Section 107 and 109 of the Evidence Act that he who alleges must prove. The burden of proof as to any particular fact lies on the person who wishes to rely on its existence and he must convince the court of the existence of that fact. In Khambi & another vs Mahithi & another (1968) EA 70 it was held;
“It is well settled that where a trial judge has apportioned liability according to the fault of the parties, his apportionment should not be interfered with on appeal, save in exceptional circumstances, as where there is some error on principle or the apportionment is manifestly erroneous and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial court”
11. General damages are damages at large and cannot be determined with mathematical precision. In awarding general damages, the court exercises best judgment to arrive at an award which is fair compensation of and reflects the nature and gravity of the injuries. I should also state that, although no two cases of personal injuries are exactly the same, previous decisions on comparable injuries offer a guide. See Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR. See also the Court of Appeal in Mbaka Nguru and Another v James George Rakwar NRB CA Civil Appeal No. 133 of 1998 [1998] eKLR where the court stated that: -
“The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.”
12. I shall then examine the evidence adduced and the law to establish whether the respondent wholly proved the existence of the fact of negligence on the part of the appellant. Two witnesses testified in the case of the respondent; the respondent himself and a police officer PW2. The respondent testified on 4th July 2019 and adopted her written statement dated 27th September 2018 as evidence in chief. The witness told the court that she was lawfully walking on the left side of the road together with a Joseph Ndichu as a pedestrian along Ngong Road and on reaching near Christian Community Church, Motor Vehicle registration number KCH 166 M which was behind knocked her down causing serious injuries complained of. The vehicle did not stop. However, Joseph Ndichu pursued the appellant vehicle while she remained at the scene of the accident until later when her friend returned and took her to Ngong Sub- County hospital. Owing to the serious nature of the injuries sustained, she was referred to Kenyatta National Hospital where she was admitted for 3 and half months undergoing treatment.
13. In cross examination, the witness denied falling in a culvert and insisted that she got injured as a result of the accident attributable to the appellants.
14. On the other hand, the appellant adopting his written statement and evidence on record in Case Number 197 of 2018. He told the court that on the material day he was heading to Milimani at around 9:00 am when two motor cycles came towards him. One on the left and the other on the right. The one on the right swerved to avoid causing an accident. The motor cycle drove away and he too drove home. On reaching his gate he saw the respondent and confronted him telling him that he had caused an accident. He stated that he did not hear any person being hit. In his written statement dated 19th February 2019, he stated that while negotiating a corner towards Ngong Hills, an unknown motor cycle suddenly entered into his lane from the left side and while trying to avoid hitting the motor cyclist, another appeared on the right. He braked, swerved towards the left and stopped at the edge of the road. A few minutes later he was accosted by a group of people who accused him of hitting pedestrian and driving off without ascertaining their state or reporting at the police station.
15. The appellants testimony corroborates in material particulars the evidence of the respondents that he and a friend were walking along the left side of the road when they were hit by a vehicle from behind. It is clear that the appellants while trying to avoid hitting the motor cycles, one on the left and another on the right, swerved to the left and stopped just at the edge of a ditch. The respondent and a friend who were walking on the left side were thus hit when the vehicle swerved on the left. The respondent was hit and fell on a ditch injured. Immediately the accident occurred, the appellant was confronted by the respondents friend Joseph and other people a fact again corroborated by the appellant himself in his written statement stating that he was accosted a few minutes later by motor cyclist who accused him of hitting pedestrians.
16. There is no doubt whatsoever in my view that an accident did occur on the material date. The same was reported to the police and police abstract issued on 23rd august 2018 under OB No 04/14/2018 which shows that the accident was reported on the same date but the police abstract was issued on 23rd August 2028. I do not see any contradiction on the respondent’s evidence and the assertion that the vehicle was driven at high speed is not material to the central issue of liability. On the issue of police abstract, I agree with counsel for the appellant that its production alone is not prove of negligence, causation or liability. It only serves as a record of the accident, that a report of an accident had been made, the victims of the accident and the involvement of the police. An abstract is Prima facie evidence of the occurrence of the accident which can be rebutted. Even where the abstract indicates the party to blame, it is not conclusive proof of liability in the absence of further corroborating evidence. Although the existence of the accident was challenged by the defence, I do not see any fault in the magistrate holding that indeed the accident did occur.
17. On quantum, the learned counsel for the appellant submitted that the trial court failed to give due weight to the evidence on record and awarded Ksh 1,000,000 in favour of the respondent which in the circumstances of the case was inordinately high. The respondent in his written statement and in his evidence in court told the court that she suffered fracture of the right midshaft and other soft tissue injuries. She told the court that she was hospitalized for three and half months. The respondent was examined by Dr Okoth Okere on 23rd august 2018 and later at the request of the appellant by Dr Modi. The report by Dr Okoth Okere indicated that the respondent had a fracture of the right femur with an implant affixed which will be removed in future at a cost of Ksh 200,000. He classified the degree of injury as harm with a permanent disability of 30%.
18. On the other hand, the report by Dr. Modi which was adopted in evidence concurred with the earlier report with regard to the nature and extent of injuries sustained by the respondent. It is Dr Modi findings that respondent right knee and hip mobility is reduced and prone to develop arthritis on the right hip and knee due to fracture of the right femur. He assessed the degree of disability at 10%.
19. The injuries sustained by the respondent and confirmed by the reports made by the two Doctors are fairly serious. In the case of Ewo (suing as the next friend of a minor COW) VS chairman Board of Governors Agoro Yombe Secondary School (2018), the plaintiff sustained fracture of the femur and was awarded Ksh 800,000. In Florence Njoki Mwangi vs PETER Chege Mbitiru (2014) eklr the plaintiff sustained fractures of the right and left Mid- shaft femur, developing wound on the right tibia and was awarded 700,000 in 2017. In the instant appeal, the respondent sustained near similar injuries as in the above cases but with a permanent disability varying between 10 to 30%.
20. There is no reason for me to disturb the finding of the learned magistrate in awarding the respondent Ksh. 1,000,000 as general damages. The court correctly took into account all the relevant factors and was alive to the effect of inflation in assessing and awarding damages.
21. Consequently, I find the appeal without merit and dismiss the same with Cost.
2. The Appellants filed statement of defence denying the respondent claim hence the trial which commenced before the Magistrate court culminating in judgement in favour of the respondent.
3. Dissatisfied with the judgement of the Trial court, the appellants preferred the present appeal setting out the following ten (10) grounds;
i. THAT the learned trial Magistrate erred in law and fact in failing to consider and appreciate the pleadings, evidence and submissions placed on record by the appellants on the occurrence of the accident and/or circumstances of the material accident and thereby reached a wrong finding on the issue of liability and accordingly holding the appellants 100% liable for the accident.
ii. THAT the learned trial Magistrate erred in law and in fact in making a finding that the production of the police abstract was conclusive proof of the occurrence of the material accident where the fact of the occurrence thereof had been denied by the appellants.
iii. THAT the learned trial Magistrate erred in law and in fact in dismissing the appellants Defence that there was no contact between the subject Motor Vehicle and therefore the occurrence and/or causation of the accident was not proved.
iv. THAT the learned trial Magistrate erred in law and in fact in making that the decision by the investigating officer to charge the 2nd appellant in Traffic case no1153 of 2018 even though the charge was not proved was prima facie evidence of negligence on his part.
v. THAT the learned trial Magistrate erred in law and in fact in considering and giving undue weight to the evidence of PW2 who was neither the investigating officer of the material accident and could not therefore testify on the contested facts on the material accident in the absence of production of the police investigation file which she referred to at the trial
vi. THAT the learned trial Magistrate erred in law and in fact in making a finding that the evidence of the appellant was corroborated yet the alleged corroborating witness was also the plaintiff pursuing similar remedies against the appellant.
vii. THAT the learned trial Magistrate erred in law and in fact in failing to properly analyse the testimony of the 2nd Appellant and thereby reached a wrong conclusion that he had swerved off the road and landed a ditch and knocked the Respondent while off the road.
viii. THAT the learned trial Magistrate erred in law and in fact in making an award of 1000,000 in general damages which was manifestly excessive and not supported by the pleadings, evidence and medical evidence placed on record at the trial.
ix. THAT the learned trial Magistrate erred in law in distinguishing the judicial authorities cited by the appellants purely on account of lapse of time and thereby misapprehended the principle of the application of judicial precedents in determination of suits.
x. THAT the learned trial Magistrate erred in law and in fact in failing to make a determination on the issues framed by the appellants and proceeded to narrow down and frame fresh issues for determination and thereby failed to appreciate the Defence presented by the appellants.
4. The appellants thus pray that the appeal be allowed, the judgment be set aside and substituted with an order dismissing the respondent suit with cost. In the alternative the appellants request of this court for a fresh evaluation of the evidence and make a finding consistent with the pleadings and the evidence placed before the trial court.
APPELLANTS SUBMISSIONS:
5. The appellant submits that the central issue that this court should determine is whether the accident did indeed occur and if it did, whether the appellants were responsible and therefore liable for the occurrence. It is submitted that the respondent bears the responsibility to prove the occurrence of the accident and persons responsible for it under section 7 of the Evidence Act. The appellant submits that the respondent had failed to prove that the accident occurred or that the appellant was responsible for its occurrence. Further, counsel submits that the credibility of PW1 evidence is materially affected by the contradictions in his testimony. The contradiction pointed out by counsel is the contention by the respondent that the vehicle was driven at high speed yet according to his testimony he was hit from behind and wondered how he could see that the vehicle was driven at speed. The appellant also took issue with the court reliance on the police abstract produced by Pw2 arguing that the mere reporting of an accident does not amount to proof of its occurrence. That the court erred in equating the production of the police abstract as conclusive proof of both the occurrence and attribution of liability and yet the evidence of the 2nd appellant (DW2) was clear that no accident occurred and at no point did he hear any impact, screams or witness any injured party.
6. On whether the award of damages was inordinately high, the appellant submits in the affirmative and fault the trial court for not giving due weight to its submissions on quantum. The following cases were referred to as authorities on the circumstances upon which an appellate court would interfere with the quantum of damages awarded by the trial court. Catholic Diocese of Kisumu vs Sophia Achieng Tete Civil Appeal No 284of 2001 (2004) 2 KLR 55 and Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini vs A.M Lubia & Olive Lubia (1982-88)1 KAR727 730, Kneller J.A.
7. The appellant had proposed an amount of Ksh 80,000 as general damages which it submits was disregarded by the trial court on account of lapse of time.
Analysis and Determination
The issue for determination is whether the trial court erred in holding the appellants wholly liable and in the award of general damages.
8. This being the first appellate court, it is the duty of this court under section 78 of the civil procedure Act to re-evaluate the evidence and come up with its own conclusions bearing in mind unlike the trial court it never had the advantage of hearing the witnesses and observing their demeanours. See the case of Abok James T/A A.J Odera & co. Advocates vs John Patrick Machira T/A Machira & co Advocate (2013) eklr. The court should also not interfere with the findings of the trial court unless the same were based on no evidence or on misapprehension of the evidence or the trial court applied the wrong principles in reaching its findings. (See Selle & Another v Associated Motor Boat Co. Ltd & Another (1968) EA 123.
9. The principles on which a court can interfere with an award for damages was stated by Madan JA in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] E.A 898 and restated by Kneller JA in Kemfro Africa Limited t/a Meru Express Services (1976) & Anor. vs Lubia & Anor, No. 2 [1987] KLR 30 that:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former court of appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
10. On liability the law is as provided for in Section 107 and 109 of the Evidence Act that he who alleges must prove. The burden of proof as to any particular fact lies on the person who wishes to rely on its existence and he must convince the court of the existence of that fact. In Khambi & another vs Mahithi & another (1968) EA 70 it was held;
“It is well settled that where a trial judge has apportioned liability according to the fault of the parties, his apportionment should not be interfered with on appeal, save in exceptional circumstances, as where there is some error on principle or the apportionment is manifestly erroneous and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial court”
11. General damages are damages at large and cannot be determined with mathematical precision. In awarding general damages, the court exercises best judgment to arrive at an award which is fair compensation of and reflects the nature and gravity of the injuries. I should also state that, although no two cases of personal injuries are exactly the same, previous decisions on comparable injuries offer a guide. See Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR. See also the Court of Appeal in Mbaka Nguru and Another v James George Rakwar NRB CA Civil Appeal No. 133 of 1998 [1998] eKLR where the court stated that: -
“The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.”
12. I shall then examine the evidence adduced and the law to establish whether the respondent wholly proved the existence of the fact of negligence on the part of the appellant. Two witnesses testified in the case of the respondent; the respondent himself and a police officer PW2. The respondent testified on 4th July 2019 and adopted her written statement dated 27th September 2018 as evidence in chief. The witness told the court that she was lawfully walking on the left side of the road together with a Joseph Ndichu as a pedestrian along Ngong Road and on reaching near Christian Community Church, Motor Vehicle registration number KCH 166 M which was behind knocked her down causing serious injuries complained of. The vehicle did not stop. However, Joseph Ndichu pursued the appellant vehicle while she remained at the scene of the accident until later when her friend returned and took her to Ngong Sub- County hospital. Owing to the serious nature of the injuries sustained, she was referred to Kenyatta National Hospital where she was admitted for 3 and half months undergoing treatment.
13. In cross examination, the witness denied falling in a culvert and insisted that she got injured as a result of the accident attributable to the appellants.
14. On the other hand, the appellant adopting his written statement and evidence on record in Case Number 197 of 2018. He told the court that on the material day he was heading to Milimani at around 9:00 am when two motor cycles came towards him. One on the left and the other on the right. The one on the right swerved to avoid causing an accident. The motor cycle drove away and he too drove home. On reaching his gate he saw the respondent and confronted him telling him that he had caused an accident. He stated that he did not hear any person being hit. In his written statement dated 19th February 2019, he stated that while negotiating a corner towards Ngong Hills, an unknown motor cycle suddenly entered into his lane from the left side and while trying to avoid hitting the motor cyclist, another appeared on the right. He braked, swerved towards the left and stopped at the edge of the road. A few minutes later he was accosted by a group of people who accused him of hitting pedestrian and driving off without ascertaining their state or reporting at the police station.
15. The appellants testimony corroborates in material particulars the evidence of the respondents that he and a friend were walking along the left side of the road when they were hit by a vehicle from behind. It is clear that the appellants while trying to avoid hitting the motor cycles, one on the left and another on the right, swerved to the left and stopped just at the edge of a ditch. The respondent and a friend who were walking on the left side were thus hit when the vehicle swerved on the left. The respondent was hit and fell on a ditch injured. Immediately the accident occurred, the appellant was confronted by the respondents friend Joseph and other people a fact again corroborated by the appellant himself in his written statement stating that he was accosted a few minutes later by motor cyclist who accused him of hitting pedestrians.
16. There is no doubt whatsoever in my view that an accident did occur on the material date. The same was reported to the police and police abstract issued on 23rd august 2018 under OB No 04/14/2018 which shows that the accident was reported on the same date but the police abstract was issued on 23rd August 2028. I do not see any contradiction on the respondent’s evidence and the assertion that the vehicle was driven at high speed is not material to the central issue of liability. On the issue of police abstract, I agree with counsel for the appellant that its production alone is not prove of negligence, causation or liability. It only serves as a record of the accident, that a report of an accident had been made, the victims of the accident and the involvement of the police. An abstract is Prima facie evidence of the occurrence of the accident which can be rebutted. Even where the abstract indicates the party to blame, it is not conclusive proof of liability in the absence of further corroborating evidence. Although the existence of the accident was challenged by the defence, I do not see any fault in the magistrate holding that indeed the accident did occur.
17. On quantum, the learned counsel for the appellant submitted that the trial court failed to give due weight to the evidence on record and awarded Ksh 1,000,000 in favour of the respondent which in the circumstances of the case was inordinately high. The respondent in his written statement and in his evidence in court told the court that she suffered fracture of the right midshaft and other soft tissue injuries. She told the court that she was hospitalized for three and half months. The respondent was examined by Dr Okoth Okere on 23rd august 2018 and later at the request of the appellant by Dr Modi. The report by Dr Okoth Okere indicated that the respondent had a fracture of the right femur with an implant affixed which will be removed in future at a cost of Ksh 200,000. He classified the degree of injury as harm with a permanent disability of 30%.
18. On the other hand, the report by Dr. Modi which was adopted in evidence concurred with the earlier report with regard to the nature and extent of injuries sustained by the respondent. It is Dr Modi findings that respondent right knee and hip mobility is reduced and prone to develop arthritis on the right hip and knee due to fracture of the right femur. He assessed the degree of disability at 10%.
19. The injuries sustained by the respondent and confirmed by the reports made by the two Doctors are fairly serious. In the case of Ewo (suing as the next friend of a minor COW) VS chairman Board of Governors Agoro Yombe Secondary School (2018), the plaintiff sustained fracture of the femur and was awarded Ksh 800,000. In Florence Njoki Mwangi vs PETER Chege Mbitiru (2014) eklr the plaintiff sustained fractures of the right and left Mid- shaft femur, developing wound on the right tibia and was awarded 700,000 in 2017. In the instant appeal, the respondent sustained near similar injuries as in the above cases but with a permanent disability varying between 10 to 30%.
20. There is no reason for me to disturb the finding of the learned magistrate in awarding the respondent Ksh. 1,000,000 as general damages. The court correctly took into account all the relevant factors and was alive to the effect of inflation in assessing and awarding damages.
21. Consequently, I find the appeal without merit and dismiss the same with Cost.