Division: IN THE HIGH COURT, KUMASI
Date: 20 APRIL 1964
Before: DJABANOR J
JUDGMENT OF DJABANOR J
I do not know that I can say much about the plaintiff, but I can certainly say that her mother, the late Sussana Adu was a hardworking and dutiful woman. On 10 June 1961 at about seven or eight o’clock in the morning she was, as is the practice in our communities, taking the chamber pot used by her grandchildren to the public lavatory for disposal when she was knocked down by one of the city council refuse collecting vehicles and severely injured. The vehicle was at the time being driven by the first defendant, the city council’s driver. Sussana Adu was taken to the central hospital for treatment, where two days later her right (the injured) leg was amputated. Two months later she died. The plaintiff, the daughter of the said Sussana Adu, is now claiming damages under the British Fatal Accidents Act 1846,1 on the ground that the accident occurred through the negligent driving of the said driver Yaw Appiah, and that Sussana Adu died as a result of the injuries she suffered from the accident. The defendants were denying liability on the grounds that the driver was not negligent, and that the said Sussana Adu did not die from the wounds she sustained, or alternatively that she did not die only from these wounds.
The first matter I want to dispose of is the effect of the fact that the plaintiff did not set out any particulars of negligence in her statement of claim.
At page 533 of Bullen and Leake’s Precedents of Pleading (11th ed.) the learned author there wrote as follows:
“It is not enough for the plaintiff in his Statement of Claim to allege merely that the defendant acted negligently and thereby caused him damage; he must also set out facts which show that the alleged negligence was a breach of a duty which the defendant owed to the plaintiff. The Statement of Claim ‘ought to state the facts upon which the supposed duty is founded, and the duty to the plaintiff with the breach of which the defendant is charged’ (per Willes J. in
Gautret v. Egerton (1867) L.R. 2 C.P. 371, cited with approval by Lord Alverstone C.J. in West Rand Central Mining Co. v. R. [1905] 2 K.B. 400). Then should follow an allegation of the precise breach of that duty, of which the plaintiff complains; in other words, particulars must always be given in the pleading, showing in what respect the defendant was negligent . . .”
The case of Esso PetroIeum Co. v. Southport Corporation2 was a case concerning an emergency
discharge of oil on the foreshore. The plaintiff alleged that the emergency was due to the negligent navigation and control of the master of the ship. All these allegations were rebutted by the defendants. The plaintiffs then sought to blame a fracture of the stern frame which affected the steering (as the judge found). This was not pleaded, but the plaintiffs said the onus was on the defendants to explain how the stern frame came to be fractured, which onus if it existed they had admittedly not discharged. It was held that the plaintiffs could not rely on the fracture, because they had not pleaded it as due to negligence or at all.
The purpose of pleadings is to prevent surprise and to acquaint the parties of the respective burdens which they have to discharge. In the Esso Petroleum case it seems to me that the plaintiffs failed because after failing to substantiate their claim upon the particulars they had alleged, they tried to avail themselves of the proof of other particulars which they had not alleged or attempted to rely upon. I think with respect that they were rightly told that they could not do so. In this case the plaintiffs relied upon the fact that “the first defendant while driving the second defendant’s vehicle so negligently drove the said vehicle that he hit the late Sussana Adu with it and knocked her down and she sustained serious injuries.” The defendants
asked for no particulars of the negligence and left the plaintiff to prove that the first defendant was negligent. The plaintiff then led evidence to the effect that the first defendant while reversing the vehicle knocked down and injured Sussana Adu. The defendants defended the action without any objection on the grounds of surprise or embarrassment or lack of particulars and I do not think I ought to say that they were embarrassed by lack of particulars. I think that in the circumstances the lack of particulars on the part of the plaintiff is not fatal and I will consider the evidence that has been led without objection.
The evidence was clear that the first defendant was reversing the vehicle when it hit and knocked down the said Sussana Adu. It appeared that the driver did not even know that he had knocked down the woman until a witness shouted to him to warn him. By that time the wheels of the vehicle were on the woman. It seems to me that upon this evidence the onus shifted on to the first defendant to rebut the presumption that he was negligent. Unfortunately the first defendant was not called to give evidence. That onus was therefore not discharged, I must therefore hold that the first defendant was negligent in knocking down and injuring the woman, and I must also hold that his masters, the second defendants, are therefore also liable to the woman in damages. The plaintiff is claiming damages on behalf of the woman’s estate, and she tendered a formal grant of letters of administration and led evidence which was undisputed, that she is the customary successor of the deceased woman. I therefore find that the defendants are liable to the plaintiff in damages for the injury.
The plaintiff is also saying that the said Sussana Adu died as the result of the injuries she sustained from the accident. It is therefore necessary to consider the nature of the injury and whether that caused her death. The defendants deny that the woman died as a result of her injuries suffered from the accident. The woman sustained a large wound on the right leg which extended to the lower third of the leg with some loss of skin and muscle. According to the doctor the injury was quite severe. On the second day she collapsed in the ward and upon inspection of the wound it was suspected that gas gangrene had set in. Gas gangrene is a very serious thing. It is caused by an infection introduced into the wound by foreign bodies. The doctor suggested that this infection could have been contracted where the woman received the injury, near the refuse disposal place although he was surprised that the infection should remain after the antibiotics had been administered to her. In view of the gas gangrene the leg had to be amputated. This wound appeared not to be responding to treatment. Further investigation revealed that the woman was diabetic. This, the doctor suggested, could have aggravated the condition of the wound. The woman was accordingly transferred to the medical ward so that some attention could be given to the diabetes. From the post-mortem report it appears that there was a wound on the left foot too, which was gangrenous. Dr. Photiades wrote the following report about the woman—exhibit G, “The patient possibly had latent diabetes before admission and while in the ward and the gangrene which developed was a manifestation or complication of the diabetes. A severe accident of the sort the patient sustained in a diabetic or latent diabetic, is always a serious thing and can contribute directly to the development of diabetic coma which as in this case may result in the death.”
Dr. Evans-Anfom also had this to say after studying the clinical records and medical reports on the deceased (exhibit H):
“1. The injuries sustained by the deceased were not by any means slight.
2. Infection and gangrene developed in the wound two days after the injury and initial treatment, and this resulted in amputation of the right leg.
3. Subsequent events showed that the deceased was in actual fact a latent diabetic. This diabetic
condition modified the infection which in turn aggravated the diabetes which became worse and eventually ended in coma and death.
4. Whether the patient would have died of diabetes at the time she did without prior injury such as she had no one would be in a position to say.
5. One thing that is certain however is: that without the injury there would not have been the infection in the wound which resulted in gangrene.
Any form of severe infection in a person with diabetes, whether latent or manifest, aggravates the diabetic condition, and may be so severe as to end in death.”
I accept these reports as correct there being no reason to suppose otherwise. In the case of Bourhill v. Young3 Lord Wright said: “No doubt it has long ago been stated and often restated that, if the wrong is established, the wrongdoer must take the victim as he finds him.” If you knock down a diabetic and injured him, you cannot complain that he would probably not have died had he not been diabetic. According to the post-mortem report the cause of death was stated as “Septicaemia secondary to infected wounds and pneumonia.” The defendant is therefore saying that the patient probably died of pneumonia which certainly was not the result of the accident. That may well be so. But the case of Heskell v. Continental Express4 saves much argument on this point. It was there held that “where the wrong is a tort, it is clearly settled that the wrongdoer cannot excuse himself by pointing to another cause. It is enough
that the tort should be a cause and it is unnecessary to evaluate competing causes and ascertain which of them is dominant.”
It is sufficient for the purposes of this case that the cause of death was also “septicaemia secondary to infected wounds.” Since the defendants caused the accident from which the wounds were sustained liability must attach to them.
I now come to the matter of damages, and here I must adopt the same method of calculation as explained in Charlesworth on Negligence (3rd ed.) at p. 560, para. 909:
“Method of calculating damages. When the income of the deceased was derived from his own earnings, ‘it then becomes necessary to consider what, but for the accident which terminated his existence, would have been his reasonable prospects of life, work and remuneration; and also how far these, if realised, would have conduced to the benefit of the individual claiming compensation.’ The manner of arriving at the damages is (a) to ascertain the net income of the deceased available for the support of himself and his dependants; (b) (i) to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, whether for maintenance or pleasure, or (ii) what should amount to the same thing, to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants; and then (c) to capitalise the difference between the sums (a) and (b) (i) or (b) (ii) (sometimes called the ‘lump sum’ or the ‘basic figure’) by multiplying it by a figure representing the proper number of years’ purchase, arrived at having regard to the deceased’s expectation of life, the probable duration of his earning capacity, the possibility of his earning capacity being increased or decreased in the future, the expectation of life of the dependants and the probable
duration of the continuance of the deceased’s assistance to the dependants during their joint lives. From the sum thus ascertained must be deducted any pecuniary advantage received by the dependants in consequence of the death.”
It was not disputed that the deceased was a general petty trader and that she made an income of £G30 per month. In her pleadings the plaintiff averred that her late mother spent an estimated amount of £G240 per annum on her children. They were all attending school when she died, and those attending secondary school have had to stop for lack of funds.
In her evidence the plaintiff said her mother spent about £G6 per month on her grandchildren. I think that is nearer the truth than the £G20 per month she alleged in her pleading. But considering that she in fact was looking after one boy in the Takoradi Secondary School whose fees alone were nearly £G58 10s. per year, I think that it would be reasonable to say that she spent about £G120 a year on the education and maintenance of her grandchildren. I think that she could not have been solely responsible for these children especially when at least the plaintiff’s own husband, a linguist of the Asantehene, is alive. I do not believe that he has no work or source of income. The plaintiff also said that her expenses totalled about £G120 and her donations of the funeral of the late Sussana Adu was £G110. The defendants will
pay the balance to her.
I gather from the doctors’ report that Sussana Adu was about 56 years of age and quite healthy when she died. In all the circumstances and applying the method stated above I will award a ten years purchase. That will bring the amount of damages to £G1,200.
I will therefore give judgment for the plaintiff against the defendants for £G1,200 general and £10 special damages. The plaintiff will have her costs assessed at 60 guineas.
DECISION
Judgment for the plaintiff.
N.A.Y.
