COURT OF APPEAL
DATE: 1 MAY 1967
BEFORE: OLLENNU, APALOO AND LASSEY JJ.A.
CASES REFERRED TO
(1) Randall v. Tarrant [1955] 1 All E.R. 600; [1955] 1 W.L.R. 255; 99 S.J. 184, C.A.
(2) Mbadiwe v. Yaya (1954) 14 W.A.C.A. 613.
NATURE OF PROCEEDINGS
APPEAL from a judgment of the High Court dismissing the plaintiff’s action for damages for personal injuries. The facts are set out in the judgment of Apaloo J.A.
COUNSEL
K. K. Dei-Annang for the appellant.
No appearance by or on behalf of the respondents.
JUDGMENT OF APALOO J.A.
The appellant was a passenger on a Bedford lorry which belonged to the second respondent. While en route to Tamale from Agona, Ashanti, on 6 July 1960, this lorry which was then in charge of the first respondent, was in collision with an Albion truck which belonged to the government. The appellant sustained severe injuries from this accident and is permanently disabled thereby. She therefore brought an action against the respondents in the High Court, Tamale, to recover damages on the ground that the injuries she sustained were occasioned by the negligent driving of the first respondent. The facts alleged by the appellant were disputed and it is therefore necessary to relate the divergent stories told by both sides. According to the appellant, she boarded the first respondent’s lorry at Agona in the late afternoon of 5 July 1960. When the lorry got to Yeji, it was too late to cross the ferry, so she, as well as the other passengers on board the lorry, stayed the night at Yeji. They were ferried early
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on the morning of 6th July. While they were on their way to Tamale, the first respondent was driving at great speed. He was then admonished by one Adjei, who was also a passenger on the first respondent’s lorry and who, like the appellant, sat on the front seat by the driver, to moderate his speed. The first respondent declined to heed this warning as he said he had to get to Tamale and off-load his goods before twelve o’clock noon. He was carrying iron sheets. According to the appellant, just before they got to a village whose name was given as Jarentuli, they sighted a vehicle coming from the opposite direction. Between the first respondent’s lorry and the on-coming vehicle was a narrow culvert. It was obvious that these two vehicles could not pass each other on the narrow culvert. Accordingly, while the first respondent’s lorry was about 70 yards from the culvert, the on-coming Albion truck stopped. It stopped very close to the culvert at a distance variouslyestimated as two yards and between four to five yards. The first respondent did not then reduce his speed, but continued at the same speed and collided with the stationary Albion truck which was pushed back about twenty yards. As a result of this impact, the appellant’s leg was trapped in the first respondent’s lorry. This resulted in the grave injuries for which she sought damages. The appellant’s account of the accident was wholly corroborated by the evidence of Adjei and driver of the Albion truck called Sylvester Kuchrogbe.
The first respondent’s account of how the accident occurred was rather different. According to him, just before reaching Jarentuli village, he negotiated a curve and saw that an Albion lorry was coming towards him from the opposite direction. It was a straight road and visibility was clear. He said that just as he was about to pass the Albion lorry, its driver cut across the road and made collision unavoidable. He said he was thus obliged to run into him. He denied that the Albion lorry was stationary before the impact. He said he was driving at a moderate speed which he estimated to be between 20 to 30 miles per hour. He claimed that he was keeping a proper look-out and said, “If the other vehicle had not crossed the road as it did, the accident would not have occurred.” Apparently, no other person was able to support the first respondent’s story and he rested his case on his lone evidence. This fact is not of great importance as the learned trial judge was entitled to accept his story in preference to that of the appellant and her witnesses if he thought the first respondent was a witness of truth and that his version of the accident was the more likely of the two.
The stories told by both sides are mutually exclusive and one of them must be false. If the truth lay with the appellant, then there is,
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at least, prima facie evidence of negligence against the first respondent. If the first respondent’s is the truth, equally there would be a prima facie case of negligence against Kuchrogbe, the driver of the Albion truck. On the facts, the learned trial judge impliedly rejected the account of the first respondent but acquitted him of negligence because he said the driver of the Albion truck, to use the judge’s own words, “was the sole author of the accident.” He arrived at this conclusion by a rather curious process of reasoning. He found that the driver of the Albion truck was much nearer the culvert than the first respondent and that the former stopped to give way to the latter to pass the culvert, but he said that Kuchrogbe stopped too near the culvert and although the learned judge found that the first respondent was driving at a normal speed, he ran into the stationary Albion truck. The judge was of the opinion that the first respondent could not avoid the accident because, as the judge put it, “the circumstances were such that the first defendant [meaning the first respondent] emerging from a narrow culvert could not in any way have avoided running into a vehicle which had stopped two yards or four to five yards away from the culvert.”
Accordingly, the learned judge laid the blame for the accident very squarely at the door of Kuchrogbe, the driver of the Albion truck, and concluded that “the first defendant [i.e. the first respondent] was not in any way negligent.” Having so found, he proceeded to dismiss the action. It is against this judgment that this appeal has been brought.
It was submitted before us that as the learned judge found the driver of the Albion lorry stopped to allow the first respondent’s vehicle to traverse the culvert, the judge was in error when he held that the driver of the stationary truck was solely to blame for the accident. Counsel referred to the cases of Randall v. Tarrant [1955] 1 All E.R. 600, C.A. and Mbadiwe v. Yaya (1954) 14 W.A.C.A. 613 and submitted that where a stationary vehicle is hit by a moving one, there is at least a presumption that the moving vehicle was to blame. Counsel for the appellant next listed the duty of care which both the first respondent and Kuchrogbe as drivers owed to each other and to their passengers as well as other road users. It was thensubmitted that the first respondent was in breach of the duty of care which he owed to the appellant. As this resulted in injury to her, it was submitted that he was liable to her in damages. The learned judge’s rejection of the evidence of the appellant and her witnesses that the first respondent was driving at great speed was next attacked. It was said that if the evidence led on behalf of the appellant as to speed was, as the judge said, guesswork, it was no less so of the first respondent’s evidence, since the speedometer
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was out of order and the first respondent’s evidence as to speed was as much guesswork as the appellant’s. Before counsel exhausted his argument on the issue of liability, we stopped further argument as every member of this court independently thought that the learned judge’s conclusion ought to be reversed. We therefore invited counsel to address us on damages. This he did. With respect, the ratio of the learned judge’s judgment seems to me quite indefensible. Having rejected the first respondent’s account of the accident and accepted the appellant’s, the position seems to be this: both vehicles were coming from opposite directions. Between them, lay a narrow culvert. Kuchrogbe stopped close to the culvert on his proper side thus affording sufficient room for the first respondent to pass safely. The first respondent failed to slacken his speed and just after traversing the culvert, ran into the stationary Albion truck. Although it was a seven-ton lorry and carried a machine which weighed five tons, the first respondent’s truck pushed it to a distance of twenty yards. As a result of the impact, the appellant’s leg got trapped in the lorry resulting in serious injuries to her. On these facts, I should reach a conclusion diametrically opposite to that reached by the learned judge. I would say that the first respondent did not drive with the care that was reasonable under the circumstances. I would also hold that he and not the Albion driver, was solely to blame for the accident and that as he was in breach of the duty of care which he owed to the appellant, the latter was entitled to recover. In so far as it is possible to discover the ratio of the judge’s contrary conclusion, it is firstly, that Kuchrogbe stopped too near the bridge and secondly, the circumstances were such that the first respondent emerging from a narrow culvert could not “in any way have avoided running into a vehicle which had stopped two yards or four to five yards away from the culvert.”
In my opinion, neither of these grounds provide good reason for absolving the first respondent from blame. The learned judge himself found that Kuchrogbe was nearer the culvert than the first respondent when he stopped. Kuchrogbe explained that he had to do this as the first respondent was speeding and he thought both might collide on the narrow culvert. However near the culvert Kuchrogbe stopped, there was sufficient room for the first respondent to pass and he would have done so if he had been driving carefully. If there was insufficient room for him to pass, he should have stopped. He would have been negligent if he attempted to pass, conscious of the fact that he had insufficient room to do so safely. I think the two cases of Randall v. Tarrant [1955] 1 All E.R. 600, C.A. and Mbadiwe v. Yaya (1954) 14 W.A.C.A. 613 proceeded on this footing andm
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both being decisions of the Court of Appeal, provide ample guidance to the learned judge, had he cared to avail himself of them. The second ground for acquitting the first respondent of negligence appears to me even more vulnerable than the first. Although the learned judge said the circumstances were such that the first respondent was obliged to run into the stationary vehicle, he did not specify what the circumstances were, except that he said the first respondent emerged from a narrow culvert. If by this the judge meant that his vision wasobscured by the culvert and he did not therefore see the stationary Albion truck and the impact occurred almost simultaneously with his first seeing it, then this will be at variance with the evidence. This is because the first respondent himself said he saw the Albion lorry on the other side of the culvert. He said it was a straight road and there was no problem of visibility. His own explanation was that the Albion truck then cut sharply across his path. For a seven-ton truck heavily laden, this was a highly improbable story and one which the learned judge did not accept. It seems obvious that the first respondent was driving at a speed that was unreasonable under the circumstances. Both the appellant and Kuchrogbe said he was in speed. This is also confirmed by Adjei, himself a driver, who estimates it at 45 miles per hour. The learned judge rejected all this because he said as the speedometer was out of service, their estimation was guesswork. It can hardly be anything else. Yet he said he was obliged to accept the first respondent’s estimate of his speed which on his reasoning, must also be guesswork. I think the appellant was entitled to complain that the learned judge’s conclusion on the question of speed was illogical. But the appellant’s view as to the speed which the first respondent was making before the impact is fortified by what admittedly happened as a result of the impact. As the first respondent himself admits, when his Bedford truck came into collision with the Albion lorry, it pushed it backwards to a distance of about 60 feet. The Albion lorry was itself, a seven-tonner, and together with the machine it was then towing, measured 38 feet. The machine itself weighed five tons. The fact that the first respondent’s vehicle, which was also a seven-tonner and equally fairly heavily loaded, should have pushed the Albion lorry together with its load to such a distance shows that he must have collided with the Albion lorry with great force. In my opinion, he must be in very great speed to do this. On the proved facts, the proper conclusion which one must draw is that the first respondent was driving the Bedford lorry at a terrific speed. When he sighted the Albion lorry on the other end of the culvert, he did not then lower his speed. His lorry must have suffered some jolt on the culvert. The first respondent thereby lost control
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and ran into the stationary Albion lorry on the other side of the culvert and by reason of his speed, pushed it backwards to a great distance. In my opinion, this is very negligent driving and the learned judge’s conclusion is incapable of support. The appellant suffered severe injuries from this accident and is, in my judgment, liable to recover damages from the first respondent. It is admitted that the second respondent was the owner and employer of the first respondent and at the time of the accident, the first respondent was driving the Bedford lorry in the ordinary course of his employment. It follows that both respondents are liable to the appellant for her injuries.
The appellant testified that before the accident she bought and sold smoked fish and meat, but by reason of the accident she cannot now walk about and carry on this trade. Dr. Doosey who examined her in November 1961, expressed the opinion that she could no longer walk about, there being extensive permanent damage to both feet. So serious were her injuries that the doctor advised amputation of the left leg but the appellant refused. Quite clearly, the accident resulted in substantial pecuniary loss to her and she must be compensated for this. The appellant was in hospital for twenty weeks before the hearing and lost her profit for that period. According to her evidence, she makes an average profit of £G13 a week. That is not, from one’s experience, an extravagant figure but it is slightly generous. I think £G10 per week would be a more realistic figure for an active woman engaged in fish and meat trade in Northern Ghana. On that basis, I calculate her loss of earnings for twenty weeks at a total sum of £G200. The appellant is also entitled to be compensated for her loss of future earnings. The assessment of this sum, always a difficult matter, is rendered more so in this case because there is a total lack of evidence asto the appellant’s age and the probable length of time she would reasonably have remained in receipt of the profit of £G10 per week from her trade, but the appellant cannot lose her compensation because its assessment is difficult. The award of compensation, under this under this head of damage, is often a matter of impression and common sense; but a woman who makes a weekly trip to Agona Ashanti from Tamale to engage in fish mongering must be a healthy and active one and I think, in all the circumstances, she would continue in this occupation for at least a period of five years. At £G10 a week, the appellantwas in receipt of income at the rate of £G40 a month or £G480 per year. Taking five years’ purchase, I reckon that the appellant would have earned the sum of £G2,400 in five years. This sum ought to be taxed down by contingencies. The fish and meat trade is a speculative venture and the appellant
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might well have lean periods in which she would earn much less than her average profit. She might have fallen ill from natural causes and lost income. The doctor also thought the appellant could do sedentary jobs and from these, she might be able to earn some income. Taking all these into consideration, I would tax down the appellant’s total loss of future earnings to a round sum of £G2,000. That brings me to the next head of damages, namely, the pain and suffering caused to the appellant by the injuries. Dr. Doosey gave evidence that the appellant had a compound fracture of the right foot and compound fracture of the right tibia. She also had a compound fracture of the left foot and the left ankle. Some of the small bones of the left foot were missing. The middle toe of the right foot was missing and all the toes except the little toe of the right foot were deformed. There was also according to the medical evidence, extensive scarring of both feet and ankles. These injuries which kept the appellant in hospital for upwards of four months must, in the ordinary course of things, have caused her great pain and suffering. To put a pecuniary value on pain and suffering is by no means an easy undertaking, but in so far as is humanly possible to do so, I would assess compensation under this head of damage in the sum of £500. The appellant also claims, as items of special damage, her medical and travelling expenses. She gave evidence that she incurred expenses to the tune of £G17 4s. in paying hospital bills. There is concrete evidence that she was admitted in hospital both at Tamale and Agogo and the expenses she said she made are eminently reasonable and have not in fact been disputed. She also spent £14 8s. to receive, what she described as native treatment. That presumably, is treatment by an indigenous herbalist. It is not easy to see how a herbalist can mend a broken foot but one knows from experience that hospital treatment is often followed by native treatment and it is not unreasonable to expect an illiterate fishmonger of Grunshie extraction to try a native doctor where hospital treatment failed to cure what the doctor called permanent deformities. In any case, a wrongdoer must take his victim as he finds him and the appellant ought to recover the G14 8s. as special damage. There is also a claim of £G9 being travelling expenses. In travelling from the scene of accident to Tamale and back to hospital at Agogo, the appellant obviously incurred some transport expenses and the amount of £G9 is not unreasonable and is, I think, a fair amount to spend on travelling. Accordingly, I would award the appellant a round sum of £G40 to meet her hospital and travelling expenses. Accordingly, the aggregate sum which the appellant ought to recover from the respondents is £G2,740. I would therefore allow
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the appeal and set aside the judgment appealed from. In lieu of it, I would enter judgment for the appellant against both respondents jointly and severally for the sum of £G2,740 or N¢5,480. The appellant is entitled to costs in the High Court and I would assess these at £G75 or N¢150. She will alsohave her costs in this court.
JUDGMENT OF OLLENNU J.A
I agree.
JUDGMENT OF LASSEY J.A.
I also agree.
DECISION
Appeal allowed with costs
