Lancelot Sanderson, C.J.
1. This is an appeal by the plaintiffs against the judgment of Greaves, J.
2. The claim was in respect of injuries caused to the infant plaintiff by a dog, alleged to belong to the defendant, on the 22nd June 1917.
3. The claim was for Rs. 1,642 9-9 in respect of expenses incurred by the plaintiff Mr. F.J. Hall, the father of the infant plaintiff, which sum included Rs. 723 for salary and commission for 13 days at Rs. 1,680 per month and for Rs. 10,000, in consequence of the injuries sustained by the infant plaintiff.
4. The defendant by his written statement set up several defenses and denied liability. He then alleged that the plaintiff's claim in paragraphs 8 and 9 was fansiful and excessive and without admitting liability he paid into Court a sum of Rs. 900 as being ample to satisfy any claim of the plaintiffs.
5. At the trial after the opening of the learned Counsel for the plaintiffs, liability on behalf of the defendant was admitted, and the only question was one of damages.
6. After the plaintiff Mr. F.J. Hall was cross examined, his learned Counsel said that he would drop the question of salary and commission and he agreed to accept Rs. 900 in respect of all out of pocket expenses incurred by the adult plaintiff on behalf of his son in connection with the injuries received from the dog on the 22nd June 1917, so that the only issue which the learned Judge had to try was, what damages, if any, had the infant plaintiff suffered.
7. The learned Judge awarded the infant plaintiff Rs. 300 to compensate him 'for the pain and suffering caused to him by reason of the accident;' and the learned Judge made the order as to costs which appears in his judgment for the reason mentioned therein. The first ground urged by the learned Counsel for the appellants was that the amount of Rs. 300 was an inadequate sum.
8. First, because the learned Judge had omitted to include any damage for the scar caused to the infant plaintiff's face and for the nervousness from which it was alleged he suffered in consequence of the injury, and in any event it was urged that the sum was not sufficient for the pain and suffering.
9. And 2nd, because it was contended that this was a case for exemplary damages and the learned Judge had not awarded such damages.
10. As regard the amount of Rs. 300:
It cannot be said that the learned Judge did not consider the question of the scar: he referred to it in his judgment, and I gather that after seeing the infant plaintiff himself and hearing the evidence he did not consider it of much, if any, importance, and indeed the 9th ground of appeal makes it clear that the learned Judge had considered this matter but did not regard it as of any importance.
11. The evidence was that the scar was much better at the time of the trial. Doctor Cameron thought that it would improve and that it might disappear altogether but he did not think it would. A scar on the face may be a real disfigurement or it may be of little or no importance, and in view of the fact that the learned Judge who has seen the infant plaintiff's scar, has said that he did not regard the scar of any importance, it must be in this case that the scar is not a disfigurement and on such a point, I, sitting in the Court of Appeal, without having seen the infant plaintiff, am certainly not prepared to disagree with the learned Judge on a point of this kind.
12. As regards the nervousness:
It does not appear that much importance was attached to that by the plaintiffs. It is not referred to in the plaint, no question was put to Dr. Cameron about it in the examination-in-chief, the Doctor had not been asked to examine him with referenced to nervousness.
13. He said that when the infant plaintiff got bask from Shillong he was all right, so far as bodily health was concerned. He had suffered no after effects at all except that he supposed ha was probably a little nervous: he anticipated he would always be nervous of dogs such evidence does not lead me to think that there was really any permanent injury to the infant plaintiff's nerves.
14. I do not think the evidence of Mr. Hull as to the boy's nervous condition is reliable, for he said that after the incident in November 1916 the boy would not go anywhere near a dog. He would simply run away. He became unmanageable when a dog came by his side.
15. Yet the evidence of Mrs. Hull was that on the day of the accident, viz., the 22nd June 1917, the infant plaintiff tried to pat the dog 'Britannia,' a bull dog which Mr. W. Bryant had with him.
16. Mr. W. Bryant said the child was a little nervous but still he patted his dog. This makes me think that Mr. Hull's description of the boy's nervous state was exaggerated. Mrs. Hull said the boy was nervous of all, what he terms, 'knocker' mouth dogs, by which I suppose the boy meant, bull dogs.
17. The learned Judge on the evidence came to the conclusion that the infant plaintiff had suffered no permanent damage. He saw the boy and heard the witnesses give their evidence in Court, and on a question of this kind I should hesitate long before interfering with the decision of the learned Judge who has tried the suit; on the evidence as regards this matter I am by no means satisfied that the learned-Judge was wrong.
18. As regards the amount awarded for pain and suffering:
It is a difficult matter to estimate the amount of compensation for pain and suffering even in the case of an adult who can come into Court and describe his feelings, the pain and the suffering which he has undergone. It is still more difficult in the case of a small boy such as the infant plaintiff who did not give such evidence.
19. In this case it does not appear that there were any complications and apart from the operation of stitching the wound when he was given a whiff of chloroform, there does not seem to be any evidence that the boy suffered much pain, or passed sleepless nights or anything of that kind.
20. The evidence shows that the father and mother, with whose feelings I can fully sympathies, were much upset by the sight of the boy's face.
21. It must have been harrowing to Mr. Hall's feelings, as he said, seeing his son under chloroform and having his face stitched, but we have not to consider the feelings of Mr. and Mrs. Hull or the worry to which they were subjected; there is here no claim for that.
22. We have to consider the pain and suffering endured by the minor plaintiff himself. The learned Judge has thought that Rs. 300 was enough.
23. I am not trying the case in a Court of first instance but bearing an appeal. It was held by this Court in the Englishman case Englishman Limited v. Lajpat Rai 6 Ind. Cas. 81 : 37 C. 760 at p. 761 : 14 C.W.N. 713 that the Court of Appeal should not interfere unless the decision of the learned Judge on a question of damages appears to be clearly erroneous.
24. Having given this matter careful consideration I am not satisfied that the learned Judge's finding on this point was clearly erroneous.
25. As regards the claim for exemplary damages:
In my judgment there is no ground in this case for awarding such damages. Even if it were permissible to the Court to a ward such damages for a claim such as the present, upon which I express no opinion, I do not think the facts of the case are sufficient to justify an award of exemplary damages.
26. The claim to exemplary damages is based upon the failure of the defendant to fulfil his undertaking to remove the dog from the hotel, which it is alleged he gave after the incident in January 1917.
27. I think it is unfortunate that the defendant did not carry out his intention to remove the dog from the hotel.
28. Still having regard to the facts of this case and to the precaution which the defendant took, in my judgment the failure to send the dog away would not justify the Court in awarding exemplary damages.
29. It is clear from the evidence that the dog, generally speaking, was not a dangerous dog. The defendant's children and Mrs. Coachafer's children were in the habit of playing with the dog, even after the incident of the 22nd June 1917: but the dog seems to have had an antipathy against the infant plaintiff, as the learned Judge held, for some reason which has not been discovered.
30. It appears that after the January incident the defendant removed his room to another floor so that the dog and the infant plaintiff might not accidentally meet. The dog was always on the leash when he was taken out of the defendant's or Mr. Bryant's room and the learned Judge has found that such precautions as were possible with regard to the dog were taken By the defendant, and that this course was also followed while the dog was in Mr. Bryant's custody during Mr. Paull's absence.
31. The incident itself was in the nature of an accident, and in would not have happened but for the fact that the infant plaintiff had gone along the corridors of the hotel some considerable distance from Mr. Hull's room with another child and Mrs. Coachafer's nurse to the immediate neighbourhood of Mr. Bryant's room in which the dog was with M., Bryant. Mr. Bryant's brother, without thinking, left the door of the room open, when he entered Mr. Bryant's room, the dog ran out, and found the infant plaintiff immediately outside the door, and knocked him down.
32. I think it is not unreasonable that two views might be taken of the previous incidents. Mr. Hull and his wife regarded them as serious. Mr. Paull apparently took a different view. I cannot help thinking that if the dog, which was a ball dog, had been really savagely inclined towards the boy, more serious damage would have been done.
33. The same remark applies to the incident of the 22nd June 1917 for if the nurse's evidence is to be believed, the dog knocked the boy down three times there, was no evidence of a bite, though it is obvious that the gash or wound on the child's face mast have been caused by the dog's teeth, which might have been done in the knocking down of the boy without any biting by the dog.
34. Under these circumstances in my judgment this is not a case for exemplary damages. At any rate I am certainly not prepared to hold that the decision of the learned Judge, in not awarding exemplary damages was clearly erroneous.
35. The last ground upon which the judgment was impugned was that the order of the learned Judge as to costs was wrong. The defendant paid into Court Rs. 100 and the plaintiffs were awarded Rs. 900 and Rs. 300, i.e., Rs. 1,200 in all.
36. Prima facie, therefore, the plaintiffs would get the costs of the suit.
37. But the costs were in the discretion of the Judge such discretion must, of course, be a judicial discretion to be exercised on legal principle , not by chance medley, nor by caprice nor in temper, as was said by Lord Coleridge, C.J., In Huxley v. West London Extension Railway Co. (1886) 17 Q.B.D. 373 at p. 376 : 55 L.J.Q.B. 506 and it was held in Ranchordas Vithaldas v. Bai Kasi 16 B. 676 : 8 Ind. Dec. (N.S.) 929 that the .Appeal Court could interfere with the exercise of discretion as to costs by the lower Court, when there has been any misapprehension of facts or violation of any established principle, or where there has been no real exercise of discretion at all.
38. In this case the learned Judge said: 'so far as costs are concerned, the plaintiff has succeeded in his claim for damages to the extent of Rs. 300 but his claim was Rs. 10,000 and I think if he had been reasonable in his attitude certainly yesterday morning the case would have been settled, and I think I must take this into account and his attitude as shewn by the correspondence with regard to the costs,' and he then made an order as to costs giving to the plaintiffs three-fourths of their costs of the suit, the costs were to be on scale No. 2 as of one day's hearing and included the de bene esse examination. The learned Judge had said in a previous part of his judgment: 'I think this letter and telegram shew that Mr. Paull was genuinely sorry for what had happened and was genuinely anxious so far as lay in his power and if he was allowed to do so, to make full compensation for all expenses in connection with the accident , that he did all be could to settle the matter amiably and I cannot help thinking that if the parties had been left to themselves or if some reasonable sum had been claimed for damages, this suit would never have come into Court and the matter would have been amiably arranged between the parties.'
39. The learned Judge further referred to the claim for Rs. 10,000 and held it to be a most excessive sum, and that although the natural indignation of Mr. and Mrs. Hull must be taken into account especially at the time of the accident , he thought this action had been pursued in some spirit of vindictiveness and with a desire to inflict punishment.
40. In my judgment there is no doubt that the claim for Rs. 10,000 was an exorbitant claim.
41. It was urged that the plaintiffs had to insert some figure in the claim, and it was desired to insert a sufficiently large one.
42. But this, in my judgment, is no excuse in this case; further from the plaintiffs' Solicitor's letters, notably the letter of the 20th July 1917 in which the Solicitors wrote at the end of the letter 'if your client is not prepared to pay the sums claimed, Rs. 12,000 in all, will you kindly let us know if you will accept service of the writ on his behalf,' it is clear that Mr. Hull the plaintiff would be satisfied with nothing less than the sums he claimed.
43. Further at the trial he persisted in what I consider was his exorbitant claim. There, is the further fact that the plaintiff Mr. Hull included in his claim Rs. 728, for salary and commission. He had lost no salary at all and he dropped his claim for commission, when he was being cross-examined, though he had given evidence in support of his claim for the salary and commission during his examination-in chief. I do not lay great stress on this, for the learned Judge, has not relied upon it; it is some evidence, however, of the spirit in which this claim was made and of the nature of the claim.
44. There is also no doubt that the learned Judge was right on the facts of the case and the evidence given by Mr. Hull himself that this suit was pursued in a vindictive spirit and with a desire to inflict punishment upon the defendant. He admitted that one reason for the action was to punish Mr. Paull, and he considered that rather lees than half the claim of Rs. 10,000 should be put down for punishment of the defendant and that the balance of the Rs. 10,000 should be awarded to his son for damages.
45. These matters were obviously present to the learned Judge's mind when be made the order as to costs; and were matters which he could legitimately consider. He, however, took into consideration a matter upon which, in my judgment, it would be unsatisfactory to rely. He referred to some thing which had evidently taken place in Court the day before he delivered his judgment and he thought the case could certainly have been settled then if the defendant had been reasonable in his attitude. What exactly took plane, I do not know as the learned Judge has not stated in his judgment what took place in Court on the previous day, or what it was that he had in his mind, If what occurred amounted to no more than negotiations between the parties as to a settlement, which same to nothing, I do not think that was a matter which the learned Judge should have taken into consideration, for it seems to me that this must involve, to some extent speculation on his part, as to the attitude of the respective parties.
46. On the other hand, it may have been, and probably was, something much more definite than the above; at the same time, as stated already, I do not know exactly what it was to which the learned Judge referred. In my judgment, therefore, it is safer to say that this was a matter which should not have been taken into consideration.
47. I think further that the matter referred to may have influenced his mind, for part of his order was that the costs should be taxed as of one day's hearing which rather goes to show that he thought if the plaintiff Mr. Hull had been reasonable on the first day of hearing, two days would not have been necessary.
48. I am 10th to interfere with the order as to costs which the learned Judge in his discretion has made, for I feel that there was ample material before him, apart from the above mentioned matter, to justify him in interfering with the ordinary rule as to costs; at the same time I cannot help feeling that he has been influnesd to some extent by the matter to which I have referred, and which, I think, should be left out of consideration.
49. In my judgment, therefore, the learned Judge's order as to costs may be reviewed by this Court.
50. Apart from the matter to which I have just referred, there are matters which the learned Judge could, and no doubt did, legitimately consider; the exorbitant claim made and persisted in at the trial by the plaintiff, Mr. Hull -- the fact that the suit was prosecuted in a spirit of vindictiveness and with a desire to punish the defendant, and the uncompromising and unreasonable attitude of the plaintiff Mr. Hah before the trial as disclosed by the correspondence.
51. In Jones v. Curling (1884) 13 Q.B.D. 262 at p. 268 : 53 L.J.Q.B. 373 : 50 L.T. 349 : 32 W.R. 651 it was held by the Master of the Rolls that the facts must show the existence of something, having regard either to the conduct of the parties or to the facts of the case, which makes it more just that an exceptional order should be made than that the case should be left to the ordinary course of taxation, and the learned Judge proceeded to give examples which would in his opinion be a good cause for a Judge interfering; one of such examples was if the plaintiff had made an exorbitant claim by carelessness or recklessness.
52. In this case in my judgment the claim was not only exorbitant but also it was made and pursued in a vindictive spirit and with a desire to punish.
53. Further it was held by Lord Halsbury in Huxley v. West London Extension Railway Company (1889) 14 A.C. 26 at p. 32 : 58 L.J.Q.B. 305 : 60 L.T. 642 : 37 W.R. 625 as follows:
Everything which increases the litigation and the costs, and which please on the defendant a burden which he ought not to bear in the litigation is perfectly good cause for depriving the plaintiff of costs.
54. In this case there can be no doubt that the exorbitant claim and the way in which it was persisted in increased the litigation and pro-longed the hearing of the suit.
55. In my judgment the exorbitant claim, the uncompromising attitude of the plaintiff Mr. Hull in persisting both before and at the trial in such exorbitant claim, and the vindictive spirit in which the suit was pursued are sufficient grounds for interfering with the ordinary course as to coats.
56. For the reasons above mentioned I think the proper order as to costs will be to vary the learned Judge's order by striking out of the decree the words 'other than the costs of this day's hearing,' which, as already stated I think, probably were inserted by reason of the matter to which 1 have already referred and which, I think, should be left out of consideration. As regards the costs of this appeal, according to my judgment the plaintiffs have failed upon the main grounds of the appeal, but have succeeded to a small extent as to the order for costs.
57. It is difficult to allocate the costs, which have been incurred in the Court of Appeal, to the various points argued, and I think under the circumstances it will meet the justice of the case if an order is made that each party should bear his own costs of the appeal.
58. Consequently in my judgment the appeal should be dismissed except that the decree as to costs should be varied, as above mentioned, and each party should pay his costs of the appeal,
59. I regret I am unable to agree in the conclusion at which the Chief Justice has arrived.
60. This is a suit in tort by the infant plaintiff, a child of Mr. F.J. Hull, for Rs. 10,000 damages and Rs. 1,642-9.9 out of pocket expenses for injuries caused by the defendant's dog. The written statement denied liability and was accompanied by payment of the sum of Rs. 900 into Court, which was alleged to be sufficient to satisfy the plaintiff if he was found entitled to anything. This denial of liability was abandoned at an early stage of the trial after framing of issues. It was admitted that the plaintiff was entitled to Rs. 900, as an agreed sum by way of out of pocket expenses (Rs. 1,642-9-9) claimed. It was never admitted that the plaintiff was entitled to anything for pain and suffering and injury over and above the amount now admitted as payable for out of pocket expenses. For though the written statement is wide enough to cover claims of every kind, the evidence of the defendant and what; occurred at the trial make it quite clear that the defendant was unwilling to pay anything on account of pain and injury. The trial accordingly proceeded, with the result that the learned Judge held as against the defendant that the plaintiff was entitled to something (evidently in the learned Judge's opinion not much) and the decree was given to him for the sum of Rs. 300 in addition to the sum of Rs.900 above stated; but for certain reasons he deprived the father and next friend of the infant of 1/4h of the general costs of the snit, of 1/4th of the costs of the 1st day's hearing and whole of the costs of the 2nd day's hearing.
61. There is, as I have stated, no question of liability of the defendant to pay damages. The two questions before us are, firstly, as to the amount he should pay by way of damages and, secondly, as to the next friend's costs of which he has been deprived.
62. A number of English oases have been cited to us with a view to show when the Court may and when it may not interfere in an appeal on the question of the sufficiency of damages awarded. I adhere to the opinion which I expressed in Englishman Limited v. Lajpat Rai 6 Ind. Cas. 81 : 37 C. 760 at p. 761 : 14 C.W.N. 713 that the English oases which deal with the question of the revision of damages by the Court of Appeal have no application in this country where the Jury system, with respect to which the English decisions have been given, does not prevail. Here the question of damages is to be dealt with by the Court of Appeal as any other portion of the case, that is the Court in appeal will not interfere either as regards award of damages or any other matter (both classes of facts standing on the same footing), unless the decision appealed against appears to be clearly erroneous. In that ease the Court of Appeal reduced the damages.
63. The first question then is whether the sum of Rs. 300 should be increased. As regards this I may in advance observe that the conduct of the plaintiff's next friend car, in no way, affect the damages to be paid to his infant son for actual injury and suffering. Whatever claim his father may have made, he is entitled to be compensated for his suffering and injury. It must be first ascertained (so far as is possible) what is a proper turn to pay, and this sum may be on a larger scale if the conduct of the defendant has been such as to justify it. The second question is as regards the costs. I will take up the former first.
64. In this case we have not to deal with a single attack but with four attacks by the same dog on the same child in November 1916, 10th January 1917, 17th January 1917 and 22nd June 1917. After the third attack Mr. Hull saw the defendant and the following is his evidence:
I said it was fortunate that no very great physical injury had been done, and that I hoped that we could settle the matter but that I thought that there was only one way, and that was by destroying the dog, and then I offered to bay the dog at Mr. Paull's own price. Mr. Paull said that the dog was a prize dog and he wished to keep it, and that he intended to show it at the dog show which would take place at the end of February, and then he would take it away to Darjeeling and that I would not see it again, He said that in the meantime he would keep the dog under look and key and that I would never see it again: He also said that be would remove to other rooms in the hotel and asked me if I would be kind enough to tell my servant not to take the boy in that direction.' After he got back to his rooms Mr. Hull then wrote the following letter:
17th January 1917.
Dear Mr. Paull,
After further consideration I want, in the most friendly yet firm way, to put in writing just what I feel concerning what happened yesterday.
The dog has now attacked the child on three different occasions. The first time it drew blood; on the second occasion I was present and my wife and I were able to prevent any bodily harm being done; yesterday the dog bit the child on the foot, and it would certainly have drawn blood but for the fortunate fact that its teeth fastened on the child's shoe. On no occasion has the child given the dog any provocation.
The above proves that so far as my child is concerned, the dog is dangerous.
You and I both want to do the right thing to prevent anything really serious happening or even a recurrence of what has already happened. In my view, the only way to make sure is for the dog to be sent away or destroyed.
I understand that you wished to show the dog on the 26th and that immediately after the show, it is to be sent to Darjeeling. This is all right so far as it gees, but. I would like an insurance of what is to be done in the meantime. It is due to my child, and my wife (who was seriously upset yesterday and on the first occasion.), to say that I shall hold you Strictly to account for any physical or mental suffering which may be caused by your dog.
I feel certain that you will make it impossible for the dog, either in hotel or outside, to attack the child in future.
to which the defendant replied as follows:
324, Grand Hotel,
17th January 1917.
F.J. Hull, Esqr.
I am in receipt of your letter of date and regret the unfortunate occurrence to which you refer. The dog is used to children and has no vice, but, of course, I wish to meet you in this matter, so have made arrangements to move to rooms on the next floor, as soon as available in a few days. As suggested by you, it would be better if your little boy would use one of the other staircases until I have made the change of rooms. I on my part will naturally take care the dog is chained up in the interior.
65. The statement in Mr. Hull's letter about the dog being sent to Darjeeling is not here challenged, though the defendant in his evidence says that he is not sure whether he told Mr. Hull that he would send the Jog away to Darjeeling or not. The defendant then says that it is quite likely that Mr. Hull invented that statement. In my opinion Mr. Hull is stating the truth in this matter. In his evidence the defendant says he pooh poohed' the whole thing absolutely, that Mr. and Mrs. Hull were 'making a mountain out of a mole hill,' that they 'exaggerated' and that it was 'a paltry thing,' and that they were 'making a great fuss and that even the last occasion when the dog made a wound on the Childs, face, which was 1 inches long and a 1/4th to 1/8th of an inch deep and which had to be sewn up, leaving what the doctor said was likely to be a permanent scar, it was ' a very doubtful thing,' Seeing these constant attacks by the dog on this child which was only 1/4 years old, I think that his parents were very naturally apprehensive and that it was not a matter to be 'pooh poohed' at all. If greater injury was not caused, it was, I think, due to the fortunate circumstance that on each occasion some one was present to help the child and to take off the dog. I do not accept the defendant's statement that Mr. and Mrs. Hall were exaggerating. If they were, why did not the defendant deny the statements in Mr. Hull's letter of the 17th January? The attitude taken by the defendant in his evidence has also a bearing on the argument that the defendant before suit was so entirely reasonable and willing to make such compensation as was proper that the suit was unnecessary, a matter with which I deal later.
66. The fourth attack by the plaintiff's dog on the 22nd June 1917 is the subject-matter of this suit.
67. The defendant had promised that the dog should be sent away after the dog-show which took place at the end of January. The reasons why he did not do so are immaterial. It may not have suited the defendant, but a promise made was a promise to be kept. It has been suggested that it was a good thing that the dog was not sent to Darjeeling, as it might have attacked the child when the latter was also there. The defendant does not himself say that the dog was not sent to Darjeeling on account of any such fears. Moreover the gist of the matter was not that the dog should be sent to Darjeeling in particular, but that it. should be sent away. On the contrary the dog was kept in the hotel and afterwards made over to a Mr. Latouche. Meanwhile the defendant went himself to Darjeeling and retained about the middle of June. At that time the Hull family had returned. Then the defendant returns and knowing that the Hall family were in the hotel, he brought the dog again into the hotel. For sometime the dog was in his control and was then left, on his going to the Sand heads, in the hotel in charge of his friend Mr. Bryant, who lived on the same landing and used the same lift as the Hull family. And this was done though in the defendant's letter of the 17th January previous, the defendant has suggested that the child should use one of the other staircases until he had moved to rooms on another floor. The result then was that the dog was not sent away but kept in the hotel under circumstances similar to those under which the first three attacks had occurred. The defendant, however, had told Mr. Bryant to be careful with the dog. The dog WAS loose in his room and when his brother Mr. W. Bryant opened the door, the dog rushed out, attacked the child who was almost at once picked up by Mr. W. Bryant and saved from further injury than that which it has suffered. As to this we have Dr. Cameron's evidence. The left cheek was out and there were two small wounds on the hand. The first wound was he says fairly serious, being 1 inches long and the depth varied from .1/4th of an inch to 1/8 h or 1/2 to 1/8th. . It required stitching, which was done after the child was given chloroform. He says that he certainly thinks there will be a permanent scar. He described it as prominent. The learned Judge in his judgment, dated the 5th July of last year', that is more than a year after the event, states that the scar was still visible from where he was sitting at a distance of 5 or 6 yards. The Doctor was twice questioned as to his statement that the scar would he permanent ani said that he did, not think it would disappear. On the right hand, the skin was just broken and showed tooth marks. Being cross-examined whether he anticipated any further permanent result?, Doctor Cameron said that the question was a difficult one, but that the child would be nervous of dogs. And the evidence shows that the child was, as one might expect it to be, after four attacks from this dog, nervous.
68. As regards this medical evidence it is uncontradicted.
69. The question then is, what damages the defendant should pay for these injuries. In the defendant's view the matter was a very small one and that if there was anything due a very little sum was payable. The defendant stated that if any little sum was due there was contributory negligence on the part of this child of 4 years, and if one were set against the other nothing was due. The supposed contributory negligence is that the child was on the corridor near the room of Mr. Bryant and at a distance of some 200 panes from its own. Whether this would have made any difference in the result is doubtful There might have been perhaps more serious injury if the dog had attacked the child at a distance from Mr. Bryan's room, when it would have taken longer for him to come up and help is However this may be, the child was entitled to use the corridor as much as any one else. Doubtless it was an accident that the dog attacked the child owing to the opening of Mr. Bryan's door, but as the learned Judge has held having regard to what happened before, the defendant must be held responsible. I may here point out that the statement above mentioned and other facts make it abundantly clear that the defendant never offered to pay anything on account of injury and suffering and limited his offer to out of pocket expenses only. I refer to this again on the question of costs.
70. The learned Judge has held that the plaintiff is entitled to the sum of Rs. 800 only which be himself described as a small compensation for his pain and suffering, and he has further deprived the plaintiff's rest friend of 1/4th of the general costs of the action, 1/4th of the costs of one day's hearing and the whole of the costs of one day's hearing. The result, therefore, is that though the plaintiff has been attacked four times by the defendant's dog and has suffered the injuries described, he gets only Rs. 300 for his pain and injury (which are, of course, exclusive of the out of pocket expenses) and the next friend of the child in this action Will be cut of pocket as regards 1/4th of the costs of the action as also of the first day's hearing and as regards all the costs of the second day's hearing. I cannot agree that this is a right conclusion.
71. In the first place, it is based on the finding that the child has suffered no permanent damage. That finding is a question of fact and not a matter of discretion. That finding is not based on the evidence, for in Dr. Cameron's opinion the scar will be permanent.' That is the only, evidence in the case. It was Suggested that the child was not a girl and that a scar was not, therefore, of any importance, May be it is not of such importance as it would have been in the case of a girl, but it is an injury all the same and if permanent must be compensated. It is true that the learned Judge saw the scar which we have not, but he has also told us that the scar was still visible at a distance from where he was sitting and he is in no better position to say whether it will disappear than we are. It is true again that Doctor Cameron in cross examination said that it was possible that the scar might disappear. No other answer in such case could be given, because neither he nor any one else could absolutely deny such a possibility, but he also said three times that, in his opinion, though the scar might improve it would not altogether disappear. He said 'I certainly think there will be a permanent soar.' I do not consider myself justified in relying on what he stated might be within the bounds of possibility and rejecting his positive opinion thrice repeated that the scar was a permanent injury, If it be suggested that Dr. Cameron's evidence was too favourable to the party calling him or that it was medically unsound, it was open to the defendant to call other medical evidence which was not done. It stands unrebutted.
72. Dr. Cameron's opinion may have been right or it may have been wrong. Doctors like others make mistakes. But there is no ground in my opinion for holding that he was more likely to be wrong than right. I may here observe that the learned Judge was in error in stating that no evidence was sought to be put forward that any permanent injury had been done.
73. Nextly, there is medical evidence that the shock, which the child has suffered and which I thick must have been intensified by reason of three previous attacks, may have permanent effect. The actual existence of the continuance of nervousness is supported by other evidence in the case. I hold that permanent injury has been proved.
74. This finding is sufficient to invalidate the learned Judge s decision on the question of damage. It cannot be contended that the doctrine of non-interference in certain matters with the Judge's discretion extends to this that if he thinks that no permanent injury has been proved on the evidence, we are bound to accept his conclusion when the only medial evidence is the other way I need not, therefore, elaborate the argument that the learned Judge has also misdirected himself by taking into consideration matters which are irrelevant, such as the conduit of the plaintiff's father and defendant.
75. The first question which the Court had to decide was whether the case was one which called for damages on an exemplary scale or-not. On this question some of the circumstances to which the learned Judge has alluded might be taken into consideration. He would then, in his view of the case, have held that this was not a case for exemplary damages. The next question would have been whether any damage was suffered and if so, to what extent. If compensation was due, the final question was whether the sum payable was a nominal or a small sum as the learned Judge sails his award, or whether a substantial or at any rate greater sum should be given to the plaintiff. On this question the considerations to which I have alluded would have no bearing whatever. The simple question then was what, if any, was the actual injury and suffering and what compensation should be paid on an ordinary scale free of all considerations which influence ft Court in awarding exemplary damages.
76. It appears to me that there is some ground for the argument that the learned Judge has not sufficiently distinguished between matters affecting the question of exemplary and ordinary damages. It is clear that the conduct of the plaintiff's father (however it may affect the question of costs) cannot be relevant on the question of damages (exemplary or ordinary) payable to the plaintiff. Further such matters as the general attitude of, and precautions or lack of precautions taken by, the defendant, and the dangerous character of the dog may be relevant on the question whether damages should be on an exemplary scale, but not on the question of actual injury and Buffering. It is possible that though he has not said so, he was, in referring to such matters, dealing with the claim for exemplary damages. On the other hand there are remarks which put this matter in doubt. It is, however, not necessary to labour this point because if the evidence proves permanent injury and if the learned Judge has held there is none and based his award of damages on such conclusion, it is clear that the award of damages cannot stand.
77. I will deal then first with the question of exemplary damages which the plaintiff claims. There is nothing wrong in itself in claiming exemplary damages, or to use a more ill sounding term, vindictive damages. For the Courts themselves award such damages. The only question is one of fact, vie., whether a ease has been made out for such damages.
78. As both Greaves, J,, and the Chief Justice are of opinion that there is no case for exemplary damages, I do not press my view on this point beyond saying this that whilst the plaintiff's claim may have been excessive, I cannot say that under the circumstances it was unreasonable for the plaintiff to believe that he was entitled to damages on an exemplary scale, seeing that there had been three previous attacks by the dog and that the defendant persisted in keeping the dog in the hotel notwithstanding his' express promise to send it away, with the result that the injury complained of became possible and in fact ensued. As, however, there was, apart from this, no wilfulness on the part of the defendant and no malice or the like, exemplary damages would not be given on the highest scale. Accepting Dr. Cameron's evidence as to the likelihood of permanent injury, I think that more substantial damages should be given than those the learned Judge has granted. I deal with the amount later.
79. As regards costs the learned Judge has deprived the plaintiff of 1/4th of the general costs and of the first day's bearing and the whole of the casts of the 2nd day's hearing, He has, therefore, to this extent directed that the costs shall not follow the event. For the plaintiff has established his claim both to the sum paid into Court and to a greater sum.
80. The ordinary rule is that costs do follow the events. The Court may, however, direct otherwise, but under the Code (Section 35) if it does so, it must state its reasons in writing. This provision was enacted both to secure a proper exercise of discretion and in order that the Court of Appeal may be in a position to control the order and see whether there is good cause for departing from the general rule. It is no sufficient answer to say in such ease in an appeal from the judgment that the costs are in the discretion of the Court. The Appellate Court must itself decide whether the order should be sustained, that is whether the reasons required to be stated are good reasons founded on the facts of the case. There are certain well known principles on which a successful party may be deprived of his general right to costs. But where the Court purports to act on these principles, it is open to the Appellate Court to enquire whether on the facts these principles have been rightly applied. Thus the main grounds on which the costs have been disallowed are frivolous and vexatious and needless action, misconduct, malice, falsity, unscrupulousness, omission, neglect or anything which increases the litigation and costs and which places upon the defendant a burden which he ought not to bear. Avoiding any attempts to be exhaustive, the rule has been stated in the following general terms 'we can get no nearer to a perfect test than the enquiry whether it would be more fair as between the parties that some exception should be made in the special instance to the rule that costs should follow upon success' per Bowen, L.J., in Forster v. Farquhar (1893) 1 Q.B. 564 : 62 L.J.Q.B. 296 : 4 R. 346 : 68 L.T. 308 : 41 W.R. 425.
81. In my opinion none of the grounds specially stated exist here and referring to the general role I have a clear opinion that it would not be more fair that the plaintiff in this ease should be deprived of any of his costs.
82. I may observe in the first place that no improper motive is charged against the plaintiff's next friend, in the sense that the suit seeks any personal benefit for him. At one time I thought that the suggestion was made in the argument by the learned Advocate-General, and I said I thought that the suggestion was not a fair one on the facts and the cross-examination of Mr. Hull. I withdrew this observation as I had either misheard or misunderstood what learned Counsel had said. Nor can there be said to be malice, because the plaintiff's father rightly or wrongly thought that four attacks by the defendant's dog on his child, the last taking place after a broken undertaking to remove the dog, called for exemplary damages. All that is charged is that Mr. Hull too hastily commented the suit for an excessively large amount of compensation such large amount being claimed with a view to punish the defendant. There is nothing morally wrong in seeking damages on an increased scale called variously punitive, vindictive or exemplary damages. The Court grants such damages in suitable cases and there is no wrong in asking for them, The only question is one of fact, we, whether litigation was necessary at all, whether if to, a case for exemplary damages has been made out, and if not, whether the costs have been unnecessarily increased for the defendant by reason of the plaintiff's claim. Litigation was necessary in this case, because there was never at any time either before or after suit any offer to pay any sum as compensation for injury and suffering over and above out of pocket expenses, and on the commencement of litigation Rs. 900 was paid in without admission of liability for any sum whatever, and then only in respect (as the defendant himself states) of out of pocket expenses. Nextly as regards the amount of the claim, the practice (in this unlike that of the. English Courts) requires that a plaintiff should state the amount he claims for damages and is not given any more than he has claimed, This naturally leads parties to put their claim at its highest. In the present case doubtless Mr. Hull was (as the defend-ant admits he would himself have been) angry that his child had been attacked four times by the plaintiff's dog, and that after an undertaking by the plaintiff that he would send the dog away. He and his advisers may, therefore, reasonably have considered that this was a case for exemplary damages, and in fact they so wrote. The plaintiff has been given damages but not on this scale. The real question then is whether because the plaintiff claimed a large amount and has got a small one he should be deprived of any costs, I may here observe that if the plaintiff claimed too much for compensation, for injury and suffering, the defendant offered nothing on that account. In my opinion the mere fact that in a case of this kind a plaintiff (against whom nothing else is shown) may claim more than he actually receive is not a ground for depriving him of costs, unless it is shown that the costs of the action have been increased by his claim. Nor has this Court, so far as I am aware proceeded as a matter of general practice on any other footing. Possibly this may be due to the circumstance that the Code requires the plaintiff to state the amount claimed as damages. A striking instance of this is the 'Englishman case 6 Ind. Cas. 81 : 37 C. 760 at p. 761 : 14 C.W.N. 713' to which I have referred, where though the claim was for Rs. 1,00,000, the amount given was Rs. 1,500 only with costs. In the present case it is not shown that the suit was unnecessary or that the costs had been increased in any degree by the fact that more was claimed than granted. As the defendant denied that anything was due for the compensation stated, evidence was offered, which had to be of the same character whether ten thousand or one thousand rupees was claimed.
83 In my opinion the grounds stated by the learned Judge are not, having regard to the facts of the ease, good cause for the exceptional order he has made. They are 'the plaintiff's father's attitude as shown by the correspondence,' that if he had been reasonable, the cage could have been settled and lastly the excessive amount claimed. When examined, these grounds reduce themselves to this, that if the plaintiff's claim had not been so inflated, it would not have been necessary to sue at all. The question is, is that fact made out. It is possible to speculate but, going by the acts, it is clear that the defendant never at any time offered to pay anything for compensation for injury and suffering, He says he 'pooh, poohed' the whole thing absolutely, 'it was a very paltry thing' and so forth. It is not possible for me to say that with such an attitude on the part of the defendant the matter could have been settled, seeing that even when the case was in Court nothing was offered in respect of the matter for which a decree has been given. However, it is not necessary to further pursue the matter, for in my opinion the award of damages should be increased.
84. The learned Judge has next totally deprived the successful plaintiff of the 2nd day's costs on the ground that the case could certainly have been settled the preceding day. There is nothing in the record which supports this. On the contrary all the evidence goes to show that up to the last the defendant was umilling to pay any compensation over and above the out of pocket expenses.
85. It is stated in the ground of appeal, and not denied, that at the conclusion of the opening of the case for the plaintiff the learned Judge remarked that he supposed that if the plaintiff would not take his out of pocket expense only, there was no chance of settlement to which view the defendant's Counsel expressed his assent and that it was only in reply that Counsel for the defendant argued that no sum whatever should be paid but, if any, Rs. 100 was ample. As a fact these contentions were overruled and Rs. 300 were given by the Court. It is thus clear that the action was necessary as regards this compensation and that the learned Judge must be in error when he says that the case could have been settled on the first day, which is his reason for totally depriving the plaintiff of the 2nd day's costs.
86. As regard the amount of damages it is, of course, difficult to make an accurate assessment in such matters. One can only deal with approximate figures. The learned Judge is of opinion that the plaintiff is entitled to only a small compensation, which he fixes at Rs. 300, In my opinion the plaintiff is entitled to something more substantial. If as the learned Judge holds and I agree Rs. 300 is a small sum, then Rs. 900 roughly represents in figures the view I take of the case as regards suffering and injury, accepting Dr. Cameron's evidence as to the permanency of injury.
87. In my opinion also there are no sufficient grounds for depriving the plaintiff of any of his cost?, as the action was necessary and no unnecessary increase of costs has been shown by reason of the fact that the plaintiff claimed more than Greaves, J,, has given him or which I would award him. As matters now stand, the plaintiff, whose claim is admitted to be bona fide though excessive, is actually out of pocket in seeking compensation for injury to and suffering of his child against the defendant who has all along contended that the plaintiff is not entitled to anything on this account. If on this head the plaintiff has claimed too much, the defendant has, on the other hand, offered and contended that the plaintiff is entitled to nothing.
88. I would, therefore, decree the appeal with costs and setting aside the judgment and decree of Greaves, J., decree the suit for the total sum of Rs. 1,800, with full costs.
[The Judges composing the Bench having differed in opinion, and a question having arisen whether in an appeal under Clause 15 of the Letters Patent, such as this, Clause 36 of the Letters Patent or Section 98 of the Code of Civil Procedure applies the following judgments were delivered:]
89. For the purpose of today it is immaterial whether Clause 36 of the Letters Patent or Section 93 of the Code of Civil Procedure applies. If Clause 36 of the Letters Patent applies, then the Chief Justice's judgment prevails. On the other hand, if Section 98 of the Code applies, my learned brother and I are in agreement to this extent, namely, that the words in the decree, 'other than the costs of this day's hearing,' should be deleted.
90. Consequently the result is that the decree of the Court below is confirmed, subject to the variation that the words in the decree 'other than costs of this day's hearing' are deleted.
91. As regards the costs of the appeal, Section 98 of the Code does not apply and the judgment of the Chief Justice prevails. Therefore each party will pay his or their own costs in the appeal.
92.There will be no costs for to-day.