HIGH COURT, ACCRA
DATE: 4 MAY 1967
BEFORE: EDUSEI J.
CASES REFERRED TO(1) Lochgelly Iron and Coal Co., Ltd. v. M’ Mullan [1934] A.C. 1; 102 L.J.P.C. 123; 149 L.T. 526; 49
T.L.R. 566; 77 S.J. 539, H. L.
(2) Lovegrove v. London, Brighton and South Coast Railway Co. (1864) 16 C.B. (N.S.) 669; 4 New Rep. 291; 33 L.J.C.P. 329; 10 L.T. 718; 10 Jur. (N.S.) 879; 12 W.R. 988; 143 E.R. 1289.
(3) Twine v. Bean’s Express, Ltd. [1946] 1 All E.R. 202; 174 L.T. 239; 62 T.L.R. 155; 90 S.J. 128.
(4) Bottomley v. Bannister [1932] 1 K.B. 458; [1931] All E.R. Rep. 99; 101 L.J.K.B. 46; 146 L.T. 68; 48 T.L.R. 39, C.A.
(5) Tolhausen v. Davies (1888) 57 L.J.Q.B. 392; 59 L.T. 436; 52 J.P. 804.
(6) Walker v. Midland Railway Co. (1886) 55 L.T. 489; 51 J.P. 116; 2 T.L.R. 450, H.L.
NATURE OF PROCEEDINGS
ACTION in negligence by the plaintiff for damages for injuries he sustained when thrown off the back of a timber truck. The facts are sufficiently set out in the judgment.
COUNSEL
Aduamuah for the plaintiff.
Puplampu for the defendants.
JUDGMENT OF EDUSEI J.
In this action the plaintiff is claiming from the defendants jointly and severally £G5,000 or N¢10,000 damages for injuries sustained in a motor accident due to the negligence of the first defendant who was the driver and servant of the second defendants. The facts as revealed by the evidence are as follows: The first defendant was driving his timber truck registration No. WR 4019
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on 5 September 1961 on the Oda-Abenase road. The plaintiff was walking along the same road to his farm when the first defendant pulled up by his side. The first defendant alighted from his truck and had a chat with the plaintiff for some few minutes. According to the first defendant he then went into his timber truck and drove off not knowing that the plaintiff had gone on to the truck. The plaintiff on the other hand stated that the first defendant, after their short conversation, offered him a lift on the timber truck which was going in the direction of his farm. On the evidence before me, I prefer to accept the story of the plaintiff that he was offered a lift by the first defendant, and reject as untrue and highly improbable the version of the first defendant that the plaintiff got on to the timber truck without his (the first defendant’s) knowledge and consent. When it was about a quarter of a mile to the junction, where the plaintiff would get down and walk to his farm, the accident occurred: the plaintiff fell from the timber truck and the back nearside tyre ran over his left leg; he became unconscious. The driver’s mate shouted to the first defendant that the plaintiff had fallen down and so he stopped the vehicle and picked up the plaintiff and took him in the timber truck to the Oda hospital where he regained consciousness. He was later transferred to the Military Hospital, Accra, where his left leg was amputated. The first defendant, however, made a report to the police at Oda. It is on these facts that the plaintiff instituted this action in negligence claiming damages. For the plaintiffto succeed, he must establish the existence of a legal duty, breach of that duty and damage suffered as a result of that breach of duty. Thus Lord Wright has neatly put these requirements in Lochgelly Iron and Coal Co., Ltd. v. M’Mullan [1934] A.C. 1 at p. 25, H.L. as follows: “In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it property connotes the complex concept of duty, breach, and damage thereby suffered by the person to whom the duty was owing …” The plaintiff in his statement of claim alleged as the particulars of negligence on the part of the defendants the following: (a) failing to provide proper seating accommodation for the plaintiff and (b) driving too fast on a bumpy road. The first defendant denied these allegations of negligence and so they became issues for trial. I have no hesitation at all in saying that there was not a scintilla of evidence either from the plaintiff or his only witness, Korankye, as to the manner in which the first defendant drove the timber truck. There is not even the slightest suggestion by either of these two witnesses as to the speed of the first defendant and the condition of
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the road. In the course of his address the court drew the attention of the plaintiff’s counsel to the absence of such evidence and he honestly conceded this. He therefore strenuously contended, and invited the court to find, that the failure of the first defendant to provide seating accommodation was evidence of negligence. There is evidence that the vehicle was licensed to carry two persons; there is also evidence that there was a tool-box behind the cowl of the timber truck and this tool-box had been made in such a way that persons could sit on it. It spanned the whole width of the truck and the width of the tool-box referred to by the parties as a form a bench was nine inches. The plaintiff in his own evidence stated that: “the driver of the vehicle stopped by me and asked me to get on to it. I went on to the vehicle and, after a few yards’ journey, the vehicle went into a ditch and I fell from the vehicle. I became unconscious and so could not know what happened.” In cross-examination he said: “I know that the vehicle was built for carting logs. There was behind the driver’s seat a bench or form [tool-box] on which persons could sit. I did not sit on this bench or form. I now say I sat on the bench or form almost in the middle portion of the said bench or form.” There is evidence again from the plaintiff himself both in examination-in-chief and in cross-examination that there were some other persons who sat with him on the bench or form behind the cowl of the timber truck. Assuming there was a duty on the first defendant to provide the plaintiff with seating accommodation on his timber truck, was that duty not complied with? I shall answer this question later on in this judgment.
The plaintiff called as his only witness, the said Daniel Korankye, who stated that he was with the plaintiff on the timber truck on the day of the accident. This witness deposed that he saw the plaintiff four months after the accident and this was at the plaintiff’s house He said, “I went there to show my sympathy for the injuries he suffered.” This witness went on to say that he sat on the middle portion of the form or bench (tool-box) and the plaintiff sat at the extreme end of the nearside of the form. This piece of evidence as regards the seating position of the plaintiff materially conflicts with that of the plaintiff himself. The plaintiff had stated in evidence under cross-examination, “I did not see this man on the vehicle on the day of the accident, but he told me so.” By “this man” the plaintiff was referring to the first witness for the plaintiff, Daniel Korankye. The hesitancy[p.302] of [1967] GLR 298 with which the first witness for the plaintiff answered questions and his conflicting evidence as regards the seating position of the plaintiff on the truck made me form the impression that he was not on the vehicle at all at the time of the accident and that he volunteered to give evidence with a view to participating in the spoils if the plaintiff succeeded, and this was suggested to him by counsel for the defendants. His evidence is rejected as untrue and therefore worthless. I now return to the question of provision by the first defendant of seating accommodation for the plaintiff. The plaintiff himself has admitted that the timber truck No. WR 4019 was constructed for carting logs and the seating accommodation available on the truck was the bench or form (tool-box), and he occupied a middle portion of it. In my considered opinion the first defendant did all that was reasonable in the circumstances as regards providing of seating accommodation for the plaintiff, and he cannot now complain of the lack of it.
There is no doubt that the plaintiff suffered serious injuries resulting in the amputation of his left leg but, “It is not enough for the plaintiff to show that he has sustained an injury under circumstances which may lead to a suspicion, or even a fair inference, that there may have been negligence on the part of the .. person against whom he seeks compensation.” Per Willes J. in Lovegrove v. London Brighton and South Coast Railway Co. (1864) 16-C.B. (N.s.) 669 at p. 692. I hold therefore that the plaintiff has failed to establish negligence against the first defendant and his action against both defendants fails. If, however, my decision just reached is wrong and there was evidence of negligence against the first defendant then I have to consider the legal responsibility of the second defendants who were the mastersof the first defendant. On the facts as I have stated it is again my considered view that it was outside the scope of the driver’s employment for him to bring within the class of persons to whom a duty to take care was owed by the second defendants, a man to whom, contrary to instructions as deposed to by the second defendants’ bush manager, Mr. Francis Taylor, and also from the nature of the vehicle the purpose of which was to cart logs only, he gave a lift on a timber truck. On this basis the plaintiff vis-a-vis the second defendants remained simply a trespasser on the timber truck, who came there in particular circumstances, and the question is whether in the circumstances in which the plaintiff was a passenger, the defendants owed to him any duty to take care as to the proper driving of the timber truck?
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In my opinion they did not. The second defendants did not owe a duty to the world at large to take care but they did owe that duty to all persons who might reasonably be anticipated by them as likely to be injured by the negligent driving of the timber truck at the time and place in question, and to no others: see
Twine v. Bean’s Express, Ltd. (1946) 174 L.T. 239. I think Greer L.J. was perfectly right when he said in Bottomley v. Bannister [1932] 1 K.B. 458 at p. 476, C.A. that: “It is a commonplace of the law of negligence that before you can establish liability for negligence you must first show that the law recognizes some duty towards the person who puts forward the claim … English law does not recognize a duty in the air, so to speak; that is, a duty to undertake that no one should suffer fromnone’s carelessness.” It seems to me that this principle equally applies to the case of the second defendants who never contemplated that the plaintiff would travel on their timber truck designed for the sole purpose of carting logs. The particular facts here must be considered and I do not propose to travel outside them. Here a timber truck was concerned and the second defendants could not reasonably anticipate there would be this plaintiff on the truck at the time and place of the accident and, in my view therefore, they owed to the plaintiff no duty to take care in the driving of the timber truck. My conclusion upon this is, I think, supported by Tolhausen v. Davies (1888) 59 L.T. 436 and Walker v. Midland Railway Co. (1886) 55 L.T. 489, H.L. The defendants’ counsel further submitted that even if the first defendant was negligent in the driving of the timber truck, the doctrine of volenti nonfit injuria would defeat the plaintiff ‘s claim on the ground that the plaintiff knew that the timber truck No. WR 4019 was constructed for the sole purpose of carting logs, and the plaintiff further admitted in evidence that there were no such seats on the truck as are found in “mammy trucks.” There can be no doubt in my mind that when the plaintiff accepted the lift in these circumstances he knew of the risks involved and voluntarily agreed to take them. The defendants plea of volenti non fit injuria will therefore defeat the claim of the plaintiff in any case.
I must remark here as a matter of great public interest that it is my view, and I hold it fairly strongly, that inasmuch as courts of law should show sympathy for victims of tortious acts, like the plaintiff in the present case, such sympathy or condolence should not be allowed to sway the courts from doing their duty according to law. Sentiments must not have a place in the administration of the law otherwise the growth of the principles of the law as enunciated in
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courts’ decisions would be stifled and jurisprudence would be worse for it. In the case of Bottomley v. Bannister already referred to Scrutton L.J. at p. 474 in allowing an appeal in favour of the defendants’ against whom the administrators of a deceased couple had instituted an action for damages for the benefit of their eighteen month old daughter under the Fatal Accidents Act, 1846 (9 & 10 Vict., c. 93), had this to say in respect of the jury, “I can understand that the jury sympathised with the little baby, but their sympathy must not be allowed to do an injustice to the defendants.” The same admonition applies withMequal force to a judge sitting alone.
In the result, I dismiss the plaintiff ‘s action and enter judgment for the defendants with costs assessed at N¢150.
DECISION
Plaintiff’s action dismissed with costs.
S. E. K.
