HIGH COURT, ACCRA
DATE:15TH FEBRUARY, 1962
BEFORE: OLLENNU J.
CASES REFERRED TO
(1) Robert Ude v. Bonjut (1954) 14 W.A.C.A. 533
(2) Mbadiwe v. Yaya and Anor. (1954) 14 W.A.C.A. 613
(3) Hall Ltd. v. Barclay [1937] 3 All E.R. 620, C.A.
(4) The Notting Hill (1884) 9 P.D. 105
(5) Dixon v. Deveridge (1825) 2 C. & P. 109; 172 E.R. 50
(6) Sapwell v. Bass [1910] 2 K.B. 486
NATURE OF PROCEEDINGS
ACTION for special damages caused by motor vehicle running into plaintiff’s shop.
COUNSEL
G. R. McV. Francois for the plaintiff.
A. W. Acquaah for E. D. Kom for the defendants.
JUDGMENT OF OLLENNU J.
The plaintiff claims £G6,000 against the defendants as damages he suffered in consequence of the negligence of a servant of the defendants, in driving a vehicle of the defendants into the plaintiff’s store. The accident took place at about midnight of the 13th to 14th March, 1961. No one was about at the time, except the driver of the defendants’ vehicle. The plaintiff came to the store the next morning and found the vehicle standing in the ruins of the store.
Vehicles do not normally run off the road into buildings; they would only do so in consequence of negligence on the part of the driver, or as a result of inevitable accident. In this case the cause of the accident is peculiarly within the knowledge of one person and one person only, namely, the driver of the defendants. That being so the principle of res ipsa loquitur applies and the presumption is that the accident was caused
[p.77] of [1962] 1 GLR 75
by negligence of the defendants’ driver. The onus is upon the defendants to rebut that presumption by proving facts which are inconsistent with their liability: Robert Ude v. Bonjut,1(1) Mbadiwe v. Yaya and Anor.2(2)
The defendants’ driver’s version is that the accident was caused by the top leaf of his front near-side springs breaking suddenly. If that fact had been proved it would have been a good defence for then the matter would be inevitable accident. But we have just the bare words of the driver for it. The vehicle was examined by a testing officer soon after the accident. If the allegation of the defence is true the testing officer would have seen the broken leaf and would have been called to give evidence.
I do not believe the evidence of the driver, D.W. 1. I am satisfied that the accident was caused by the negligence of the defendants’ driver.
Now the plaintiff claimed special damages of £G6,000 and gave particulars of it as follows: (1) value of a variety of goods destroyed, £G925; (2) cash in store lost, £G250; (3) goodwill lost, £G1,000; (4) loss of profits for one year, £G3,825. As to the value of goods destroyed the plaintiff simply put in an inventory of goods. This was admitted for what it was worth and marked exhibit A. His storekeeper P.W.1 gave evidence that the said inventory was taken by him jointly with the plaintiff. The inventory is not signed. There is evidence that police came on the scene immediately after the accident happened or shortly after it had occurred and remained there for a long time, for over a day. How useful would the evidence of the police have been on this question! No reliance whatsoever can be placed upon that list exhibit A.
In a claim for damages based upon injury or damage to chattels the damages which the owner is entitled to recover are the difference, if any, between the value of the chattel before it was damaged and its value after repair; and if damaged beyond repair, then its market value at date of its destruction: see Hall Ltd. v. Barclay3(3) and Halsbury’s Laws of England, Vol., II (3rd ed.) page 263, para. 437. In addition he may recover in respect of such loss or damage which is the direct result of the negligence. But any loss or damage which is neither the natural and probable result of the act or omission complained of would be too remote: see Halsbury op. cit., page 277, para. 458, and Clark & Lindsell on Tort (11th ed.), page 183, para. 282. Merely speculative profits cannot be recovered: The Notting Hill4(4) ; Clerk & Lindsell op. cit. page 172, para. 268.
In addition to the fact that there is no satisfactory proof of the goods damaged or destroyed, there is this further unsatisfactory situation that no proof has been given of the value of the goods alleged destroyed at the date of the accident. For example, the value given of an electrolux, a sewing machine, and a wireless set alleged destroyed, turned out to be their prices at some date more than three years or so before the date of the accident. So the court is left to guess their value at the date of the accident.
Again no connection has been established between the accident and the goodwill for which the plaintiff claims £G1,000, and goodwill has not been proved either. In my opinion that damage, if any, is too remote.
[p.78] of [1962] 1 GLR 75
Then damages are claimed as loss of profits. The only profit which is claimable is profit which the plaintiff could have made on the chattels destroyed. No evidence has been led of any such loss; rather the plaintiff alleged that he made profit of £G15 a day, but upon his own evidence it is impossible that he should know what daily profits he made; he took stock monthly. In any case general daily profits are claimed as distinct from profits which the sale or use of the damaged articles would have realised.
An action for such profit is not maintainable.
Finally the plaintiff claimed £G250 as cash lost in the store. He said he had left that amount in the drawer of the counter. The evidence in this regard is not worth counting upon, I do not believe it. The plaintiff completely failed to prove the special damages as claimed. But that failure does not disentitle him to some damages. There is no doubt that he suffered some loss. The fact that the evidence he led has not made it possible for the court to assess damages is not completely fatal. It has been held that in such cases he should be awarded nominal damage: Dixon v. Deveridge,5(5) and Sapwell v. Bass.6(6) The most unfortunate part is that the plaintiff did not ask for general damages to which the injury to his goods automatically entitled him.
In all the circumstances I fix the damage at an arbitrary figure of £G300. There will be judgment for the plaintiff against the defendants for £G300 damages, with costs fixed atat 45 guineas inclusive.
DECISION
Judgment for plaintiff.
