Court of Appeal · 9 May 1974 · Ghana
(1974) (CA)
CORAM
ANIN JA, ANNAN JA ,HAYFRON-BENJAMIN J.A.
ANIN J.A.
The plaintiff-appellant (hereafter called the plaintiff) for herself as the administratrix of the estate of Kofi Asabere (deceased) and his dependents instituted this action in the Kumasi Circuit Court claiming damages for the negligence of the defendant corporation resulting in the fatal injury to the deceased on or about 22 March 1970.
The statement of claim averred that the said Kofi Asabere went to the Kumasi Sports Stadium on the said date to witness a football match organised by the defendants, who are responsible for sports and for the maintenance of all sports stadia in Ghana, including the Kumasi Sports Stadium. At the close of the match, the said Kofi Asabere was walking by one of the walls of the stadium leading to an exit from the stadium when the said wall suddenly collapsed and fell upon him. He later died from the serious injuries he sustained when crushed by the falling wall. The plaintiff maintained that the collapse of the wall was due to the defendants’ negligence, and pleaded that she would at the trial rely on the doctrine of res ipsa loquitur to establish the alleged negligence.
The defendants in their statement of defence admitted their dual responsibility for sports and for the maintenance of all sports stadia in the country including the Kumasi Sports Stadium. They however denied being guilty of negligence as alleged, and pleaded that the doctrine of res ipsa loquitur was inapplicable to the case. They furthermore contended that “they always use reasonable care and skill to maintain the sports stadium to make it reasonably safe for the spectators, and it was in this safe condition at the time of this particular incident.” They however averred that “they cannot be held liable for the acts of the spectators.” Turning to the particular incident, the defendants explained in paragraph (4) of the defence that at the close of the said match at the Kumasi Sports Stadium, “there was a stampede of some of the spectators through one of the gates which caused part of the wall of the stadium to collapse.” In the event, they alleged they were not liable to the plaintiff on her claim.
In a reply, the plaintiff joined issue with the defendants on their statement of defence. The principal issue set down in the summons for directions and ordered to be an issue for trial was whether or not the collapse of the stadium wall which fatally injured the deceased was caused by the negligence of the defendants.
The plaintiff called two witnesses of fact in support of her allegation of negligence. A carpenter by name Kwabena Amankwa (the plaintiff’s second witness) testified that he knew the deceased who was his master; and that they both—as well as a very thick crowd went to the stadium on the day in question to witness the said football match, though they did not sit together. He was leaving the stadium after the match when he heard “a certain sound boom.” On rushing towards the sound, he saw Asabere under a part of the stadium wall that had collapsed. With the help of some spectators he was able to lift the wall, and rush the injured Asabere to the Central Hospital, where he died later.
The other important witness called by the plaintiff was Mr. Joseph Agyei Kuffour, a chartered civil engineer with fifteen years’ experience as an engineer with the Kumasi City Council. At the request of the plaintiff, he had inspected the scene of the accident shortly before the trial of the action. His findings, as narrated by him in evidence-in-chief, were as follows:
“The length of the collapsed wall was ten feet. I found a pillar at one end of the wall but at the other end there was no pillar. The wall was constructed with sandcrete blocks. The width of the block was six inches … I did not see any iron rod in the stump of the pillar.”
In his expert opinion, the wall in question “could have had a stronger resistance, if it had two pillars one at each end.” Speaking from his experience, “cracks in a wall could give rise to a weak wall which could collapse.”
Under cross-examination, Mr. Kuffour disclosed that he neither tested the sandcrete blocks nor examined the soil at the base of the wall in question. He only made a visual examination. He saw a steel hand-rail at one end of the fallen wall. In his opinion “the hand-rail was not of sufficient strength as a pillar. According to specifications, a wall of the type of the stadium wall must have pillars at intervals of ten to twelve feet,” he added.
The only evidence adduced for the defendants was given by one Felix Monta, a qualified building surveyor in the employment of J. Monta and Sons (a firm of architects). His practical experience included the supervision of the construction of the sports stadium, High Court, regional office and telephone exchange buildings—all at Kumasi. He was called as an expert witness to testify about the structure and condition of the stadium wall and its foundation, as well as about the sandcrete blocks and ballustrade used in the construction of the stadium. Like the plaintiff’s expert witness, Mr. Monta’s evidence was based on his visual inspection of the stadium wall in question and its surroundings carried out by him a month previously. He then discovered that a portion of the wall had been demolished by the defendants without the prior consultation of his firm, and had been turned into a gate. It was “the last portion of the wall joining the ballustrade leading to the one going to the stand” which had collapsed, while the ballustrade was still intact. There was no column at the point where the ballustrade ended. In his opinion, “all things being equal the stadium wall would last 50 years or more. Under a very strong stampede the wall could collapse.” Under cross-examination, he conceded that “the pillars put into the wall are intended to give the wall resistance.” And he made the significant admission that “a wall with a column at one end only [as in the instant case of the collapsed wall] will not have the same resistance as a wall with columns at both ends.”
In a short judgment, the learned circuit judge dismissed the plaintiff’s action on the grounds (1) that negligence had not been established against the defendants; (2) that the plea of res ipsa loquitur could not avail the plaintiff since, in his finding, the cause of the accident was known, it having been attributed by the plaintiff’s second witness (the carpenter) to the “pressure on the wall by the thick crowd”; and (3) that the surrounding circumstances, e.g. the thick crowd all trying very hard to get out, were not, in his view, wholly within the defendants’ control.
In this appeal, learned counsel for the appellant has criticised each of the above-stated grounds on which the judgment of the court below was based, and submitted strongly that the evidence showed clearly that res ipsa loquitur was applicable, and the court erred in holding to the contrary. In the alternative, he argued that on the totality of the evidence, the negligence of the defendants was fully established, and the court erred in holding otherwise.
Learned counsel for the respondents attempted gallantly to find justification for the court’s conclusions on the facts and the law, but had to throw in the towel in a sporting manner in the face of overwhelming evidence on record militating against the learned judge’s findings.
The law is settled that where the plaintiff suffers damage in consequence of one or more things which were in the exclusive control of the defendant or his servants getting out of control, reliance may be placed on the maxim res ipsa loquitur (or the facts speak for themselves) in lieu of further evidence of negligence. As was stated in Scott v. London and St. Katherine Docks Co. (1865) 3 H. and C. 596 at p. 601 by Erle C.J.:
“But where the thing is shown to be under the management of the defendant, or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”
It would be recalled that in Scott’s case, a bag of sugar fell from a crane fixed over a doorway under which the plaintiff was lawfully passing. In the absence of any explanation of the cause of the bag falling, the defendant company were held liable on the ground that such an accident does not occur in the ordinary course of things. Similarly, in Byrne v. Boadle (1863) 2 H. and C. 722, where a barrel of flour fell out of an upper window of the defendant’s shop upon the plaintiff Passing in the street below, it was held that the occurrence was sufficient prima facie evidence of negligence so as to cast the onus of proof on the defendant that the accident was not caused by his negligence.
And in the case of Great Western Railway Co. of Canada v. Braid (1863) 1 Moo. P.C.C. (N.s.) 101, where a railway embankment gave way because it was badly constructed, it was held that that was prima facie evidence of negligence. The same conclusion was reached in Pope v. St. Helens Theatre Ltd. [1947] K.B. 30, where the fall of the ceiling of a theatre on a member of the audience was held to be prima facie evidence of negligence on the part of the occupiers of the theatre.
From the decided cases, it is settled that the maxim res ipsa loquitur comes into operation:
(i) on proof of the happening of the unexplained occurrence;
(ii) when the occurrence is one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff; and
(iii) the circumstances point to the negligence in question being that of the defendant rather than that of any other person.
The maxim res ipsa loquitur applies only where the cause or causes of the accident are unknown but the inference of negligence is clear from the nature of the accident, and the defendant is therefore liable if he does not produce evidence to counteract the inference. If the causes are sufficiently known, the case ceases to be one where the facts speak for themselves and the court has to determine whether or not, from the known facts, negligence is to be inferred: see Barkway v. South Wales Transport Co., Ltd. [1950] 1 All E.R 392 at p. 394, H.L. per Lord Porter (where an omnibus left the road and fell down an embankment, but the cause of the accident was known to be a burst tyre due to an impact fracture which does not necessarily leave any visible marks on the outer tyre, it was held that the maxim was inapplicable. However, the omnibus company was found on the evidence to be negligent in not having a proper system of tyre inspection). In that case in the Court of Appeal reported in [1948] 2 All E.R. 460 at p. 471 Asquith L.J. (as he then was) summarised the position with regard to the onus of proof in cases falling under the maxim in three propositions, which provide a useful test for our purpose:
“(i) If the defendants’ omnibus leaves the road and falls down an embankment, and this without in more is proved, then res ipsa loquitur, there is a presumption that the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless the defendants can rebut this presumption.
(ii) It is no rebuttal for the defendants to show, again without more, that the immediate cause of the omnibus leaving the road is a tyre-burst, since a tyre-burst per se is a neutral event consistent, and equally consistent, with negligence or due diligence on the part of the defendants. When a balance has been tilted one way, you cannot redress it by adding an equal weight to each scale. The depressed scale will remain down …
(iii) To displace the presumption, the defendants must go further and prove (or it must emerge from the evidence as a whole) either (a) that the burst itself was due to a specific cause which does not connote negligence on their part but points to its absence as more probable, or (b), if they can point to no such specific cause, that they used all reasonable care in and about the management of their tyres.”
Reference may also be made to Moore v. R. Fox and Sons [1956] 1 Q.B. 596, C.A. where it was held that the onus of disproving negligence lies on the defendant, at least in the sense that it is not sufficient for him to show that there were several hypothetic causes consistent with an absence of negligence, but he must go further and show, (i) either that the accident was due to a specific cause which does not connote his negligence, or (ii) that he had used all reasonable care.
Applying these principles of the maxim of res ipsa loquitur and the onus of proof arising therefrom to the evidence in this case, I am satisfied that the learned circuit judge erred in holding that (i) the maxim was inapplicable; (ii) that negligence had not been established against the defendants; (iii) that the surrounding circumstances showed that the defendants were not in control of the situation; and (iv) that the cause of the accident was known.
In the first place, I would uphold the appellant’s contention that the maxim applied to the evidence which emerged in this case. On the pleadings it was conceded by the defendants that they are solely responsible for the maintenance of the Kumasi Sports Stadium (vide paragraph (2) of the claim and defence). The plaintiff’s expert witness, Mr. Kuffuor, observed that the defective wall had only one pillar at one end instead of the normal two; that the wall could have had a stronger resistance if it had had two pillars; and that the pillar was stronger than the steel hand-rail which had replaced it. The defendants’ expert witness (Monta) shared Mr. Kuffuor’s view that the wall with one column only would not have the same resistance as a wall with two columns. Here, the stadium was shown to be under the sole management of the defendants. In the ordinary course of things, a stadium wall, such as the one in question, does not collapse and bury football spectators if those who are in control of the stadium have used proper care. The mere falling of the wall is in my view prima facie evidence of negligence on the part of the defendant occupiers, just as the mere falling of the theatre ceiling on a member of the audience was held in the English case of Pope v. St. Helens Threatre Ltd. (supra) to bespeak of the negligence of the theatre occupiers. Furthermore, it is a self-evident truth that a wall with only one supporting column is more prone to a sudden collapse than a properly constructed wall with two supporting columns. The presence of a thick crowd in the stadium is a neutral event. It is at once equally consistent with negligence or due diligence on the part of the defendants, the owners in control of the stadium. Undoubtedly, stadia are built to attract crowds; the more numerous they are, the more profit the owners derive therefrom. What is the reasonable capacity of a particular stadium is or should, with the exercise of diligence, be known by the stadium owners (the defendants herein). There was no evidence adduced by the defendants tending to show that the stadium had been regularly maintained or kept in a reasonable state of repair since its construction, even though this allegation was made in the statement of defence. Their sole witness and building surveyor, Felix Monta, confessed under cross-examination to not having stepped there since its construction and the mandatory maintenance period of one year thereafter. This witness did not in any way rebut by his evidence the prima facie evidence of negligence established against the defendants by the mere occurrence of an accident which in the ordinary course of things does not happen if those who have the management of the stadium and its walls (defendants herein) use proper care. No evidence was adduced to show that since the defendants assumed sole control of the stadium they had maintained it. On the contrary, the evidence revealed that the wall which collapsed was not the original wall whose construction had been supervised by Felix Monta. He even admitted under cross-examination that in consequence of the replacement of part of the wall in question with a gate and the removal of a supporting column, the remaining wall had become a weaker wall. A more potential danger to the milling stadium crowds could be hardly imagined.
Incidentally, the learned circuit judge clearly misdirected himself on the facts when he held, in the face of conclusive evidence of both expert witnesses to the contrary, that “the wall that collapsed was of the same resistance as a wall with two columns one at each end of the wall.”
He further erred on the evidence when he held that the cause of the accident was known, and therefore the maxim res ipsa loquitur was inapplicable. A carpenter, the plaintiff’s second witness, who by no stretch of the imagination could be said on the evidence to qualify as an expert, was wrongly allowed to hazard a guess, during his account of the collapse of the wall to which he was not even an eyewitness about the cause of the accident. His opinion evidence on the issue was inadmissible per se as being hearsay evidence. Worse still, this unskilled witness pontificated on the very issue to be determined by the competent court of fact. Had he qualified as an expert witness, he might have been allowed to express his opinion on technical and scientific matters that would have assisted the court of fact to arrive at a fair and proper conclusion on the available data. The plaintiff’s second witness’s non-expert opinion ought to have been rejected or disregarded by the learned circuit judge as being hearsay and irrelevant. The reception of the opinion of this unskilled witness on a cardinal issue, and the reliance placed on it by the trial judge amounted to an error in law. By contrast, both expert witnesses called refrained from stating categorically the cause of the accident; the defendants’ witness merely contenting himself with a conjecture on what could have caused, and not what did cause, the accident.
Furthermore, the learned trial circuit judge misdirected himself on the facts when he held that “surrounding circumstances — the thick crowd and each trying to get out were not wholly within the defendants’ control.” For it is quite obvious that the defendants as owners and occupiers of the stadium have it in their sole power and discretion to decide the number of spectators to admit to tile stadium and on what terms.
To sum up, then, the evidence adduced raised a strong prima facie case of negligence against the defendants. Secondly, the defendants failed to rebut this presumption of negligence against them; and thirdly the learned circuit judge erred both in law and on the facts in holding otherwise. Was this presumption of negligence against the defendant’s rebutted? The answer to the question posed is an emphatic no! They failed, first to show that the collapse of the wall was either due to a specific cause which does not connote negligence on their part, but points to its absence as more probable. Secondly, evidence adduced did not show that the defendants used all reasonable care in and about (a) the management of the stadium; (b) the structural condition of the particular wall in question having regard to the use to which the stadium is put; (c) crowd control on the day in question; and (d) in averting the accident which occurred. As was held in Moore v. R. fox and Sons (supra), the defendants in such a case do not discharge the onus of disproving negligence by showing possible hypothetic causes of the accident. They must go further and establish that either tile accident was due to a specific cause not brought about by their negligence or that they had used all reasonable care. Not a scintilla of evidence was adduced under either head. Consequently, I would hold on the totality of the evidence that the plaintiff succeeded in establishing at least prima facie evidence of negligence against the defendants which was not rebutted. Clearly, she was entitled to judgment on her claim; and I do so hold. I would accordingly allow this appeal and set aside the judgment appealed from, together with the order as to costs. The plaintiff is entitled to costs in this court assessed at ¢100.00, and in the court below to be taxed.
Kofi Asabere (deceased), we gather from the pleadings and the evidence, was survived by a wife (Adjoa Doma) and seven children, all infants, whose names and ages are set out in the statement of claim. He was also survived by seven nephews and nieces whose ages are likewise set out in the claim. The eldest nephew is now 23 years old, while the eldest niece will be twenty next year. The average current age of the seven children is about ten and a half years; while the average current age for the class of seven nephews and nieces is sixteen. According to the unchallenged evidence of the administratrix, Yaa Dumgya, both the said children and their mother, his nephews and nieces were all dependent on him. Kofi Asabere (deceased) was a fitter earning about ¢50.00 net a month. He died aged about 40 years. On the evidence of the plaintiff’s first witness, Asabere’s family head, the family made a net loss of ¢500.00 on his funeral.
On the quantum of damages, both learned counsel have agreed on a total, all-inclusive amount of ¢4,500.00. We accept this figure as reasonable in all the circumstances, especially bearing in mind the age of the deceased, his net annual income and normal expectation of life. We accordingly order that the defendants do pay the sum of ¢4,500.00 to the plaintiff for and on behalf of the estate and the said dependants of Kofi Asabere (deceased), being damages for the defendants’ negligence resulting in the fatal injury of the deceased.
(a) It is hereby ordered that out of the said total of ¢4,500.00 the sum of ¢500.00 shall be paid out forthwith to the administratrix as funeral expenses;
(b) that a further sum of ¢1,000.00 shall be paid out forthwith to the administratrix, nieces and nephews named in the statement of claim for their beneficial enjoyment;
(c) that the remaining ¢3,000 shall be invested by the administratrix in a savings account at the Ghana Commercial Bank, Kumasi, for and on behalf of the named infant children of the deceased. This order is made pursuant to Order 22, r. 9 (3) (i) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).
(d) It is further ordered that any future disbursement from the said savings account shall only be made therefrom after prior permission has been sought from the court below.
ANNAN J.A.
I agree.
HAYRON BENJAMIN J.A.
I also agree.
Appearances
T. A. TOTOE FOR THE APPELLANT; OSAFO SAMPONG STATE ATTORNEY FOR THE RESPONDENTS.
