Division: HIGH COURT, TAMALE
Date: 20 DECEMBER 1974
Before: ATA-BEDU J
CASES REFERRED TO
(1) Rourke v. White Moss Colliery Co. (1877) 2 C.P.D. 205; 46 L.J.Q.B. 283; 36 L.T. 49; 41 J.P. 580; 25 W.R. 263, C.A. [p.248] of [1975] 1 GLR 246
(2) Gibbons v. Bew (1951) C.A. 17, C.A., cited in Bingham, All the Modern Cases on Negligence (2nd ed.), p. 183.
(3) McIntyre v. Coles [1966] 1 W.L.R. 831; [1966] 1 All E.R. 723, C.A.
(4) Chaplin v. Hawes (1828) 3 C. & P. 554; 33 R.R. 705; 172 E. R. 543.
(5) United States Shipping Board v. Laird Line, Ltd. [1924] A.C. 286; 93 L.J.P.C. 123; 130 L.T. 552; 16 Asp.M.C. 302; 1924 S.C. (H.L.) 37; 61 Sc.L.R. 55; 1924 Sc.L.T. 109, H.L.
(6) Forby v. Lauke [1933] S.A.S.R. 60.
(7) Hazell v. British Transport Commission [1958] 1 W.L.R. 169; [1958] 1 All E.R. 116; 102 S.J. 124.
(8) Blyth v. Birmingham Water Works Co. (1856) 11 Exch. 781; [1843-1860] All E.R. Rep. 478; 25 L.J. Exch. 212; 26 L.T. (o.s.) 261; 20 J.P. 247; 105 R.R. 791; 2 Jur. (n.s.) 333; 4 W.R. 294; 156 E.R. 1047.
(9) Webb v. Rennie (1865) 4 F. & F. 608; 176 E.R. 713.
NATURE OF PROCEEDINGS
ACTION by the plaintiff against the defendants jointly and severally for damages for negligence resulting in a collision involving his car and an articulated truck. The facts are set out adequately in the judgment.
COUNSEL
E. O. Appiah for the plaintiff.
Ibrahim Mahama for the first defendants.
F.E. Creppy, Principal State Attorney, for the second defendant.
JUDGMENT OF ATA-BEDU J
In this action, the first paragraph of the statement of claim alleges:
“On or about 23 September 1970, the plaintiff was driving his motor car being a Volkswagon saloon car No. UR 654 along the Tamale-Bolgatanga road towards Tamale when at the time when it was dark he was involved in a collision with the lorry No. 26TP58 owned by either or them both the State Construction Corporation and the Republic of Ghana and driven by one Kushieni Moshie a servant or agent of them both the State Construction Corporation and the Republic of Ghana or either of them on the said Tamale-Bolgatanga road but travelling in the opposite direction.”
By paragraph (2) he alleges that:
“the collision was caused by the negligence of the said Kushieni Moshie as servant or agent of them both the State Construction Corporation and the Republic of Ghana or either of them or breach of statutory duty or both the said Kushieni Moshie and both the State Construction Corporation and servant of the Republic of Ghana or either of them.”
He claims by his writ issued on 26 October 1971, attached to which was the statement of claim for
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“the sum of N01,400.00 damages against the defendants jointly and severally or in the alternative to his motor car [sic] caused by the negligent driving of the motor vehicle No. 26TP58 or breach of statutory duty or both of the defendants their servants or agents on 23 September 1970, on the Tamale-Bolgatanga road.”
On behalf of the first defendants, the appearance entered was accompanied with a defence filed on 10 November 1971, by Mr. S. A. X. Tsegah, a solicitor in Accra. On the next day, that is, 11 November 1971, an appearance was entered and defence was also filed on 27 November 1971, on behalf of both the first and the second defendants by Mr. J. O. Amui, the senior state attorney, Tamale. Except the admission made in the statement of defence filed on 27 November 1971, of the allegation in paragraph (1) of the statement of claim above quoted, the rest of the allegations therein were denied. In the statement of defence filed on 10 November 1971, the first defendants denied not only ownership of the lorry No. 26TP58 but also the fact that the said Kushieni Moshie was their servant or agent at the material time of the accident. The negligence alleged against them both or either of them was also denied and they both blamed the plaintiff for any damage caused by his own negligence. Without specifically setting out the issues in the summons for directions, what the parties agreed was that the issues to be tried be those as raised by the pleadings.
On the day fixed for hearing which was 5 February 1974, Mr. Appiah, counsel for the plaintiff, referring to the claim being in the alternative either against the first or the second defendants or both and the admission in paragraph (1) of the defence filed on 27 November 1971, that the vehicle No. 26TP58 belonged to the State, contended that since the two statements of defence filed could not co-exist, the defence filed on 27 November 1971, could be for only the second defendant. Drawing the court’s attention to paragraphs (2) and (3) of the defence filed on 10 November 1971, which are denials of the facts that the vehicle belonged to the first defendants and that the driver concerned was at the material time the servant or agent of the first defendants, counsel submitted that there would be no need to offer any evidence against the first defendants if his argument was conceded.
Mr. Creppy, the principal state attorney, in reply, said that although he applied to the court on 17 December 1971, for leave to withdraw his representation for the first defendants it seemed that no formal order granting the leave was recorded. Adverting to the notice of the appointment of Mr. Ibrahim Mahama filed on 8 March 1972, he renewed his application for and was granted leave to withdraw his representation for the first defendants.
Consequent upon this leave granted Mr. Creppy sought and was granted leave of the court to amend paragraph (1) of the statement of defence filed on 27 November 1971, in the following terms:
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“Save that the second defendant agrees that the vehicle No. 26TP58 was owned by the Republic of Ghana, i.e. the Ghana Air Force and that the said driver Kushieni Moshie was on loan from the first defendants to the second defendant and was under the instruction of the second defendant, paragraph (1) of the statement of claim is not admitted.”
In view of this amendment, the further and better particulars of the nature of the alleged loan filed on 13 February 1974, were in the following words: “The said driver Kushieni Moshie was on loan to the second defendant from the first defendants on payment basis at the material time.” The issue which arises at this stage is whether the driver lent was the servant of both the first defendants and the Republic of Ghana or either of them. On this question the principle stated by Cockburn C.J. in Rourke v. White Moss Colliery Co. (1877) 2 C.P. D. 205 at p. 209, C.A. is:
“But when one person lends his servant to another for a particular employment, the servant for anything done in that particular employment must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him.”
And one of the propositions derived from such cases as the present one is expressed in the following words in Charlesworth on Negligence (4th ed.), p. 58, para. 145:
“If the servant is not employed to work or drive any machine, vehicle or animal belonging to the general employer, it is easier to find that he has become the servant of the particular employer.”
On behalf of the plaintiff, it was contended that although it had been pleaded that the defendants’ first witness had been hired to the Republic of Ghana, no evidence was given in support of it. I think the amendment to paragraph (1) of the defence filed on behalf of the second defendant and the particulars filed were admissions of the fact specified therein and there can be no doubt that these admissions at the trial were for the purpose of dispensing with proof of and, therefore, precluded any evidence on those facts.
There was the further contention that, prima facie, the first defendants, as the general employers who had put the defendants’ first witness out as a good driver when in fact he was not, were liable. The selection of the defendants’ witness by the first defendants for the Republic of Ghana, the particular employer, was very important but there is no evidence tending to establish that the defendants’ first witness, at the material time when he was lent, was not a good driver. If by reason of the negligence alleged against him he is being stigmatised as a bad driver, I think the contention is too subtle to be sustained. If at all, it may be negligent on the part of the Ghana Air Force to allow the defendants’ first witness to drive the truck without making sure of his competency to drive at night. The first defendants may not have been negligent in their selection of the driver and in such circumstances I feel it difficult to impose liability on
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them for the act of negligence on the part of the driver which could not have been foreseen.
Relying on the admissions made on behalf of the second defendant, no evidence was offered by the plaintiff against the first defendants who also did not call any evidence in defence even though they cross-examined the plaintiff, the plaintiff s first witness and the witness for the second defendant. There being no evidence by either the plaintiff or the second defendant fixing the first defendants with liability of any sort as the general employers of the defendant’s first witness, I have no hesitation in dismissing the action against them and giving judgment for them with costs to be determined hereafter in this judgment.
The liability of the second defendant will depend upon the determination of the following issues: Firstly, whether or not there is a breach of statutory duty by either the employers or the driver or both; secondly, whether or not there was negligence on the part of the driver, Kushieni Moshie, for which his employers are responsible; thirdly, whether or not the plaintiff was negligent; and fourthly whether the damage to the plaintiff s car was due to the negligence of the said driver without any negligence on the part of the plaintiff.
The breach of statutory duties alleged in paragraph (2) of the statement of claim are:
“(iii) Allowing to be used and using a big motor vehicle on road at night with defective lights and or lighting system.
(vii) Having in use at night only one headlight in front contrary to regulation 31 (15) (a) of the Road Traffic Regulations.”
Other particulars of negligence are:
| “(i) | Failing to keep any or any proper lookout or to observe or heed the presence or approach of the plaintiff. |
| (ii) | Hugging the middle of his right side of the road when meeting an on-coming vehicle. |
| (iv) | Driving into collision with a motor car on his right hand side of the road. |
| (v) | Failing to steer control or so to manage his motor vehicle in all the circumstances as to avoid colliding with the plaintiff.” |
The maxim res ipsa loquitur is also pleaded by the plaintiff.
I first wish to deal with the alleged negligence on the part of the driver, Kushieni Moshie, whether it contributed to or was the cause of the accident, the determination of which will involve a consideration of the negligence of the owners of the articulated lorry.
The plaintiff, at the material time of the accident, was and still is a legal practitioner resident in Tamale. He was driving his Volkswagen saloon car No. UR 654 from Bolgatanga direction towards Tamale, while Kushieni Moshie (the defendants’ first witness) was also driving towards Bolgatanga direction an articulated lorry belonging to the Ghana Air Force loaded with fuel. He was conveying barrels of aviation gas to a helicopter at Walowale engaged in relief operations.
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At the time when the two vehicles were in sight approaching from the opposite directions it was dark and the road was straight. The offside headlamp of the lorry was unlighted. According to the plaintiff, it appeared to him that he was meeting a motor cycle until he came closer at a distance of about 100 miles when he noticed it was a truck. He kept more to his nearside and slowed down his speed from 50 miles per hour to between 30 and 40 miles per hour with his lights dipped. He noticed that the truck had occupied a greater portion of the road but as they were passing each other there was an impact at the rear of the truck. What the driver of that truck also said was that he slowed down his speed from 30 to five miles per hour and dipped his light and applied his brakes but as they were passing each other he heard some noise at the rear of his truck.
The law is clear that it is evidence of negligence to drive in the dark a vehicle without proper lights and paragraph (17) of the old Ghana Highway Code made under regulation 118 of the Road Traffic Regulations, 1957 (L.N. 135), enjoins all drivers to ensure that lights on their vehicles are checked and seen to be in good condition since many accidents do occur from mechanical defects. The necessity for a driver of a vehicle to carry two headlamps is to enable him to see his position on the road and the direction in which he is going and to make allowance for the appearance of other vehicles on the road. Accordingly, failure to carry such lights is negligence if the driver of another vehicle is misled and a collision is caused thereby.
Carrying one headlamp only has been held to be a dangerous practice in the case of Gibbons v. Bew (1951) C.A. 17, C.A. as Birkett L.J. said citing with approval from the judgment of Devlin J. the following:
“Where a lorry or a car … is simply driving along a main road in the night without the likelihood of anticipating or encountering any great volume of traffic, it seems to me, as I said, to neglect the obvious precaution of using both headlights is an unsafe thing to do’.”
See Bingham, All the Modern Cases on Negligence (2nd ed.), p. 183.
This brings me to the question whether the defective offside headlamp was the cause of the accident, the answer to which will depend upon where on the road the collision occurred. After the impact the wheelcap on the right front rim of the plaintiff s car came off and was later seen lying at about 9 ft. 10 in. of the entire width of the tarred road from the nearside edge of the truck. The width of the road measured 19 ft. 2 in. This is the spot which the driver of the lorry said was the point of impact and indicated to the plaintiff s first witness the police constable who went to the scene. On the contrary, he said in cross-examination that as he passed the plaintiff s car he heard some noise at the rear of his lorry but did not see the point of impact. It is a matter of common knowledge that an article falling from a moving vehicle does not rest where it falls. It is, therefore, a mere conjecture to say that the point of impact was where the wheelcap was found lying. Granting that this was the point of impact, it is clear that it was three feet within the lane of the plaintiff from the centre of the road. But there is evidence which shows that the point of impact was
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even further away in the lane of the plaintiff. The evidence of the plaintiff was that as a result of the impact the outer tyre and the burst inner tube were ripped off the right front rim which thereby made some marks on the road starting from a point in his lane to the middle of the road where the car stopped; these marks continued from the middle of the road when the plaintiff, in order not to obstruct traffic, moved the car to the offside where the police constable found it. According to the plaintiff s first witness from the point where the rim marks started to the plaintiff ‘s nearside edge of the tarred road measured 8 ft., that is to say 1 ft. 7 in. from the centre of the road in the lane of the plaintiff.
In the light of this clear evidence undisplaced, the contention that the plaintiff was driving in the middle of the road taking more than his share of the roadway and therefore was negligent is in my view, unreasonable, unsupported and, therefore, cannot be sustained.
To appreciate the situation in which the collision took place, it is important to consider the evidence regarding the construction of that articulated lorry in question. There is evidence undenied that there were two sets of double tyres holding the body of the truck which, according to section 2 (1) of the Road Traffic Ordinance, 1957 (L.N. 135), is referred to as the “semi-trailer” and one set of tyres holding the front part which is also referred to as the “vehicle.” The evidence of the plaintiff supported by the plaintiff s first witness was that the vehicle was very much narrower than the semi-trailer the tyres on which stretched out wider than the semi-trailer itself and were bigger and higher. As against this, the driver of the lorry (the defendants’ first witness) said that the width of the vehicle was the same as that of the semi-trailer which, according to him, was 9 ft. He said the tyres of the semi-trailer did not stretch out but were under it. But the evidence of the plaintiff s first witness was that the width of the semi-trailer was 12 ft. and the length was 32 ft. From one end of the tyres to the other was wider than the width of the semi-trailer although he did not measure the distance of the set of tyres at the rear.
On the application of counsel, the court, together with counsel, parties and witnesses, inspected an articulated lorry similar in construction but not in size found on the premises of the Ghana Army the measurement of which were as follows: width of the vehicle was 8 ft 1 in.; from one tyre end to the other was 8 ft. 6 in. and from one tyre end to the other at the rear was 8 ft. 8 in. I am aware that these measurements do not form part of the evidence on record but they have enabled me come to the conclusion that the defendants’ first witness’s evidence as to the construction of the lorry involved in the accident cannot be true.
The ground for the contention on behalf of the second defendant that the defect of the right headlamp was not the cause of the accident was that after the plaintiff had passed the vehicle the defect ceased to have any effect on him. The submission was that at that juncture there was a duty on the plaintiff to be extra careful.
It has been held as a conventional practice where approaching vehicles are in risk of collision that the vehicle which has the other on its right-hand side is the one to give way: McIntyre v. Coles [1966] 1 W.L.R. 831,
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C.A. The old Highway Code of Ghana also expresses as a rule of the road the following: “Keep well to the left except when you intend to overtake or turn right. Do not drive unduly in the middle of the road.” A much higher standard of care is required of the driver who drives not on his correct side, and if a collision occurs while he drives his vehicle otherwise than on his nearside he will, prima facie, be held responsible for the mischief which results: see Chaplin v. Hawes (1828) 3 C. & P. 554. In that case this is what Best C.J. had to say at p. 555, “But, on the sudden, a man may not be sufficiently self-possessed to know in what way to decide; and in such a case I think the wrong doer is the party who is to be answerable for the mischief, though it might have been prevented by the other party’s acting differently.” The fact that the accident took place in the lane of the plaintiff is inconsistent with the exercise of due and reasonable care on the part of the driver of the lorry, the defendant’s first witness.
This unlighted offside headlamp of the lorry created a danger on the road because I have no doubt that not only did it mislead the plaintiff but also did not enable the defendant’s first witness to see his position on the road. The dipping of the only lighted nearside headlamp by the defendant’s first witness, if true, created a more dangerous situation when the area had then become darker. If in such a situation the plaintiff had carefully avoided collision with the vehicle and passed it without the likelihood of anticipating that the semi-trailer was wider with its sets of tyres projecting the fact that the plaintiff did not see in the dark the condition of the semi-trailer in time but proceeded until the impact would not, in the light of the dictum of Best C.J. above stated, justify the imputation of negligence to the plaintiff. On this point also I cannot do better than adopt the view of Lord Dunedin in the case of United States Shipping Board v. Laird Line, Ltd. [1924] A.C. 286 at p. 291, H.L. that “it is not in the mouth of those who created the danger of the situation to be minutely critical of what is done by those whom they have by their fault involved in the danger.”
From the evidence, the negligence of the driver in driving the lorry with this defective headlamp is clear. It is also clear that he drove into the lane of the plaintiff and collided with his car there; he was negligent in so doing. If he had had a proper lookout and kept to his proper side of the roadway, the accident would have been avoided. I find that the plaintiff was not negligent in the circumstances in which he was placed due to the unlighted offside headlamp. The authority in support of this view is the Southern Australian case of Forby v. Lauke [1933] S.A.S.R. 60 (digested in English and Empire Digest, Vol. 36, p. 95, para. 574) where a motor cyclist who had been misled through the defendant having only a nearside light was held not to have been contributorily negligent. The evidence of the defendant’s first witness that the plaintiff was driving in an erratic manner and that he was drunk is unsupported.
I pass now to the issue of the negligence of the owners of the lorry in sending it out with the unlighted offside headlamp. As Pearson J. said in Hazell v. British Transport Commission [1958] 1 W.L.R. 169 at p. 171, “The basic rule is that negligence consists in doing something which a reasonable man would not have done in that situation, or omitting to do
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something which a reasonable man would have done in that situation…” Also Alderson B. in Blyth v. Birmingham Water Works Co. [1843-1860] All E.R. Rep. 478 at pp. 478-479 had this to say: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”
There is an obligation imposed by common law on the owners of vehicles to take proper care as prudent owners would take to see that their vehicles are in a roadworthy condition so as to guard against danger before they are put on the road. There is also a duty imposed on them to provide their vehicles with adequate lights by night and failing to fulfil these duties is negligence for which they are answerable if any injury or damage happens.
The driver of the lorry denied telling the plaintiff after the collision that he was forced to travel although he told “his people” that it was dangerous to do so that evening as the lights were defective; he denied saying also that “his people” had been working on the lighting system that evening. His evidence which does not seem tome to be true was that during the journey he had two headlamps and the two parking lights on but it was after the accident that the examining officer who examined his lorry told him that one of his lights was not functioning. Under cross-examination, he said, on the contrary, that from the start of the journey at mile 11 the fuse of the offside headlamp went off and so he had to drive with only three lights. Inconsistent with these pieces of evidence was also his further evidence that the fuse went off at Nabogo village about 24 miles from Tamale. He denied the suggestion that in his statement to the police he said the defect of the headlamp was the fault of “his department.”
Counsel for the plaintiff, in the course of his address, abandoned the plaintiff s reliance on the breach of statutory duty alleged in paragraph (2) (iii) and (vii) of the statement of claim. I find no authority, and none has been cited, in support of his submission that regulations 31 (15) (a) of the Road Traffic Regulations, 1957 (L.N. 135), did not apply to vehicles in the service of the Republic and therefore the claim based on their breach cannot succeed. However, he submitted that allowing to be used a big motor vehicle on a road at night with defective lights and or lighting system was an act of negligence by itself. His further submission was that to have the right headlamp defective was most dangerous and, therefore, an act of negligence.
The contention, in reply, that the lorry driven by the defendant’s first witness was in perfect condition before the start of the journey at mile 11 until the fuse of the offside headlamp went off at Nabogo village cannot, in my judgment, be sustained. The evidence on this point, as I have earlier found, is conflicting, unsatisfactory and unsupported. It is not enough to say that the light fused. It may be the employers of the defendant’s first witness were told, and, therefore, knew of this defect and the danger it entailed in sending out the lorry for that particular emergency journey with only the nearside headlamp lighted but failed to take steps or did
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take inadequate measures to avoid any risk. Even if the employers did not know that anything was wrong they are not exonerated from liability for, as Cookburn C.J. said in his directions to the jury in Webb v. Rennie (1865) 4 F. & F. 608 at p. 612 “although in general an employer was not liable unless he knew of the danger, yet it was his business to know if, by reasonable care and precaution, he could ascertain whether the apparatus or machinery were in a fit state or not.” The burden on the second defendant which has not been discharged is to prove that a reasonable system of inspection and testing had been maintained as regards the lights on the vehicle by the owners and that on that particular evening due and proper steps had been taken to ensure that the offside headlamp was in a fit condition. In the absence of any such evidence therefore the liability for negligence on the part of the employers becomes apparently clear and indefensible and cannot in my opinion be excluded by any conceivable definition of negligence. Their duty which they had breached is putting the lorry on the road at night without any precautions to provide adequate lights for the safety of other users of the road including the plaintiff. The offside headlamp, if lighted at the material time, would have shown not only the width of the semi-trailer but also the projecting set of tyres at its rear and would have enabled the driver the defendant’s first witness to keep to his side of the road as they were passing each other to avoid the collision. In my opinion this unlighted headlamp did no more than contribute to the cause of the collision.
The damage caused to the plaintiff s car is shown by the two photographs exhibits Al and A2. Looking at exhibit Al the damage appears to be on the front mudguard and the right front tyre; there is no dent from the side where the door is to the rear. But exhibit A2 shows that the damage is to the bumper at the rear which is torn backward; the mudguard there is not dented in but grazed. It is clear from the nature of the damage that the lorry and the car must have been very close.
The sum of N0863.70 claimed as cost of repairs is evidenced by the bill (exhibit B) signed by the workshop manager of R. T. Briscoe (Ghana) Ltd. The plaintiff succeeds in this claim.
The claim for N0380.00 as loss of use of the car for the period it was at the workshop for repairs has been explained by the plaintiff. As a legal practitioner he did trek heavily by his car to attend the courts in the Northern and Upper Regions and also in Kete Krachi. The cost of hired taxis borne by his clients had to be supplemented in a few cases by the plaintiff which, according to him, was a great loss financially. He could not visit his hometown in the western corner of the Upper Region. His wife, a school teacher, was conveyed to and from school by hired taxis. It became impossible after the accident, for the plaintiff to go out frequently with the wife and children for social purposes except on certain occasions when they went out by hired taxis. For the hired taxis he claims 0-10.00 a day from 23 September 1970 to 31 October 1970. In the absence, of any strenuous and successful challenge as to the reasonableness of this claim I am bound to accept the sum of 010.00 a day claimed as reasonable.
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In the result I give judgment for the plaintiff for the sum of 01,243.70 as proved with costs of 0200.00 against the second defendant and 0100.00 costs in favour of the first defendant against the plaintiff.
DECISION
Judgment for the plaintiff. S. E. K.
