ARUBA AND ANOTHER v. ABOAGYE [1966] GLR 385

Division: HIGH COURT, CAPE COAST

Date: 27 MAY 1966

Before: ARCHER J.

CASES REFERRED TO

(1) Davies v. Mann (1842) 10 M. & W. 546; 12 L.J. Ex. 10; 6 Jur. 954; 152 E.R. 588.

(2) Radley v. London and North Western Railway Co. (1876) 1 App. Cas. 754; 46 L.J.Q.B. 573; 35 L.T. 637; 41 J.P. 484; 25 W.R. 147, H.L.

(3) Boy Andrew (Owners) v. St. Rognvald [1948] A.C. 140; [1948] L.J.R. 768; [1947] 2 All E.R. 350; 1948 S.C. (H.L.) 70, H.L.

(4) The Ovingdean Grange [1902] P. 208; 71 L.J.P. 105; 87 L.T. 15, C.A.

(5) Jones v. Boyce (1816) 1 Stark. 493; 18 R.R. 812.

(6) Hollington v. Hewthorn & Co., Ltd. [1943] 1 K.B. 587; [1943] 2 All E.R. 35; 112 L.J.K.B. 463; 169 L.T. 21; 59 T.L.R. 321; 87 S.J. 247, C.A. (7) R. v. Moreau (1848) 11 Q.B. 1028; 116 E.R. 757

NATURE OF PROCEEDINGS

APPEAL against the decision of the circuit court giving judgment for the plaintiff in an action for damages for the negligent driving of the second defendant, servant of the first defendant. The facts are sufficiently set out in the judgment.

COUNSEL

Carson for the appellants.

Dankwa for Adjetey for the respondent.

JUDGMENT OF ARCHER J.

This is an appeal form a judgment delivered at the Circuit Court, Cape Coast, on 30 July 1964. The facts of the case in a nutshell are as follows: On 16 March 1963, the plaintiff was driving his taxi on the Accra-Takoradi motor road and on reaching a village about one-and-a-half miles to Saltpond, a Bedford truck driven by the second defendant and owned by the first defendant’s which was parked behind another truck in a lay-by, shot onto the road in the path or lane of the plaintiff. To avoid collision, the plaintiff applied his brakes and swerved to his right to avoid the Bedford truck and in so doing, his taxi landed in a ditch. The learned circuit judge awarded damages in favour of the plaintiff. The defendants to whom I shall now refer as first and second appellants have appealed from the said judgment on the grounds that the judgment was against the weight of the evidence because no negligence was proved against either the first appellant or the second appellant and that the learned circuit judge was wrong in the application of the “last opportunity rule” and the “dilemma principle.” I shall deal with this ground now because although they are three separate grounds, learned counsel for the appellants wisely decided

[p.387] of [1966] GLR 385 to deal with them in one exercise. It was argued on behalf of the appellants that the respondent himself was negligent because there was evidence that the braking distance of the respondent was 72 feet before the taxi fell into the ditch. Moreover, according to the Ghana Highway Code, the braking distance for a vehicle travelling at 30 miles per hour is 45 feet and the thinking distance about 30 feet and the overall stopping distance is 75 feet. The respondent’s answer to this argument was very simple. If according to the appellants the respondent was compelled to stop within 72 feet, then he might have been travelling about 30 miles per hour or thereabout which would mean that the respondent was not travelling at an excessive speed. I must confess that I have lost my flair for mathematical calculations and I am not particularly enamoured by these arguments. I think the formulae laid down by the Ghana Highway Code must be subject to the brake-bands, the size of the vehicle and its load, the nerves and the temerity of the driver concerned.

There is nevertheless evidence that the respondent was travelling from Accra on the highway and on reaching this village where there is a lay-by on his near side, two trucks were parked. To warn the drivers of these trucks that he was approaching, the respondent blew his horn and the respondent’s own first witness, that is, the driver of the truck parked in front of that of the appellants, testified that the horn sounded so loudly. This witness, Kweku Black, said:

“When I was loading my vehicle the second defendant started to move his vehicle. Before he started moving I heard a long blast of blowing of horn from the other direction of the main road. It became too noisy so I saw that the vehicle was coming at a great speed. I shouted on the second defendant to stop for it was because of him that the vehicle was blowing so loud. The vehicle behind stopped. The other vehicle thought that the one behind me would not stop so the other vehicle applied brakes and it dragged on and fell over [overturned].”

Then in cross-examination, Kweku Black said:

“I am a driver and I know when a vehicle starts and when it moves. This one had moved and in fact when he moved he did not look on the road before moving. I was at where my steer was. I saw it because my attention was attracted by the long horn and when I looked the second defendant was already in the middle of the road. The plaintiff was coming with too much speed. When I shouted on the second defendant he stopped. If the driver had come at reasonable speed he could have stopped for the second defendant having to pass before he passed. His brakes were effective on only one side. He stood in the middle [p.388] of [1966] GLR 385 of the road and there was space for the plaintiff but I think he thought the second defendant would not stop hence he applied his brakes.”

Kweku Black was the respondent’s own witness and the appellants have therefore attempted to rely on this witness’s testimony to prove that the respondent was negligent in driving too speedily. But Kweku Black’s evidence strongly supports the respondent’s case. Kweku Black said that before the second appellant started moving he heard a long blast of horn-blowing. Therefore the second appellant must have also heard this horn-blowing before moving. Why did he move when an approaching vehicle had warned him? Secondly, Kweku Black said that the second appellant did not look on the road before moving and in fact he stopped in the middle of the road. And I take if for granted that when one speaks of the middle of the road, the sentence means what it says and not on one side or lane of the road. Kweku Black’s evidence that the respondent’s brakes were effective only on one side was negatived by the testimony of Constable Owusu who said he saw two brakes marks and not only on one side. There is no doubt that the second appellant drove into the lane of the respondent and the question for the trial court was whether the respondent did what was reasonable in the circumstances. The learned circuit judge in his judgment siad, “Thus on the ‘dilemma principle’ and the ‘last opportunity rule’ I find in favour of the plaintiff.” The appellant have argued that the learned circuit judge was wrong in the application of the “last opportunity rule” and the “dilemma principle.” The respondent’s counsel argued that the last opportunity rule was abolished by section 29 of the Civil Liability Act, 1963,1 and the appellants’ counsel replied that the Civil Liability Act was passed on 19 April 1963 whereas, the accident which occurred on 16 March 1963, was governed by the Law Reform (Civil Wrongs) Act, 1959.2 I cannot find any reference to the last opportunity rule in the 1959 Act. Section 29 of the Civil Liability Act, 1963, has in the marginal note “Abolition of last opportunity rule” but under section 4 of the Interpretation Act, 1960,3 marginal notes do not form part of an enactment.

Certain passages were cited form Salmond on Torts to the learned circuit judge. I have read these passages from Salmond on Torts (13th ed.), pp. 458-461. It is evident that the last opportunity rule was a term used and invented by Salmond himself beginning with [p.389] of [1966] GLR 385 the case of Davies v. Mann.4 In that case, the plaintiff negligently left his donkey, with its legs tied on the highway. The defendant, driving his wagon and horses “at a smartish pace” crashed into the animal and killed it. It was held that the defendant was liable—not-withstanding the fact that the accident would not have happened but for the negligence of the plaintiff—on the ground that the defendant had a sufficient opportunity of avoiding, by the use of reasonable care, the danger so created by the plaintiff’s negligence. Davies v. Mann was approved by the House of Lords in Radley v. London and North Western Railway Co.5 where Lord Penzance enunciated the doctrine in the following words:

“ . . . though the Plaintiff may have been found guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet if the Defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the Plaintiff’s negligence will not excuse him.”

Salmond writing his Law of Torts (3rd ed., 1912), p. 39, wrote “subject to certain qualifications, it would seem that the true test is the existence of the last opportunity of avoiding the accident.” Salmond’s formulation of the principle of contributory negligence at common law was subjected to so many innumerable refinements and unintelligible extensions that Lord Simon in Boy Andrew (Owners) v. St. Rognvald6 said:

“The principle of Davies v. Mann has often been explained as amounting to a rule that when both parties are careless, the party which has the last opportunity of avoiding the results of the other’s carelessness is alone liable. The suggested test of ‘last opportunity’ seems to me inaptly phrased and likely in some cases to lead to error, as the Law Revision Committee said in their report (Cmd. 6032 of 1939, p. 16): ‘In truth, there is no such rule—the question, as in all questions of liability for a tortious act, is, not who had the last opportunity of avoiding the mischief, but whose act caused the wrong’?”

Taking into consideration the above passages, it seems to me that there has never been such a rule known as “the last opportunity rule” and I find it difficult with respect to agree with the learned circuit judge that this rule is in favour of the respondent. The appellants have also argued that this rule was wrongly applied by the learned circuit judge when in fact there has never been such rule at [p.390] of [1966] GLR 385 common law. Yet the Ghana Civil Liability Act, 1963,7 purports to abolish such a rule. It was argued on behalf of the appellants that the respondent was guilty of negligence and although it was not specifically pleaded, it should be inferred from the averment that the respondent was travelling at an excessive speed. I have considered the evidence of Kweku Black carefully and I am satisfied that the second appellant was negligent in starting and moving his vehicle when in fact the respondent had already warned him by the long blast of his horn that he was approaching. The second appellant should have taken extra precaution before moving because he was parked on a lay-by off his lane and by moving into the middle of the road clearly obstructed the respondent in his rightful lane. In effect, the second appellant by his negligence created an emergency or a situation of unusual difficulty so as to cast on the respondent the burden of using more than ordinary care to avert the accident and the fact that the respondent did not take such extraordinary care and so avoid the mishap does not by itself excuse the second appellant: see The Ovingdean Grange.8

It is also settled law that where the defendant’s act places the plaintiff in such a situation as to involve the choice of two evils, the fact that he chooses that which turns out to be the one which injured him does not of itself prevent his recovering against the defendant. See Jones v. Boyce9 where, in the words of Lord Ellenborough: “If I place a man in such a situation that he must adopt a perilous alternative, I am responsible for the consequences.” That case also decided that if, however, the plaintiff’s act resulted from a rash apprehension of a danger which was really non-existent and the injury is attributable to that rashness or imprudence and not to the defendant’s negligence, he cannot recover.

However in this appeal, the second appellant confronted the respondent with the choice of two evils either by driving head-long and crashing into the second appellant’s truck or by braking and swerving to avoid a collision. The respondent decided to swerve and he cannot be accused of having driven negligently. The question is whether he was placed in such a situation as to render what he did a prudent precaution for the purpose of self-preservation. Kweku Black again was of opinion that the respondent thought the second appellant’s vehicle would not stop so he applied his brakes. I am at a loss to understand how Kweku Black could have felt what the respondent felt when he was met with the crisis. I am satisfied that the respondent was not rash in his judgment and he acted reasonably [p.391] of [1966] GLR 385 in the circumstances and he could not be expected to be a paragon of circumspection. I therefore agree with the learned circuit judge that the respondent “in the agony of the moment acted reasonably and swerved into the ditch.”

Learned counsel for the appellants strongly argued that although the learned circuit judge accepted the second appellant’s plea of guilty in the criminal proceedings as an admission, yet he should not have held the first appellant vicariously liable for the second appellant’s admission. He cited Cross on Evidence (2nd ed.), p. 443 where the learned author states:

“A direct result of the requirement that the making of the admission must be within the scope of the agent’s authority if it is to be received against the principal is that a servant’s admission is usually inadmissible in cases in which it is sought to make his master vicariously liable in tort and, so far as the course of employment is concerned, authority to do acts is far wider than authority to speak about them.” This is no doubt a sound proposition of law. Nevertheless the general rule is that convictions in criminal proceedings are inadmissible in civil proceedings especially, where there is a claim for damages in respect of a party’s negligence. In Hollington v. Hewthorn & Co., Ltd.10 the Court of Appeal through Lord Goddard C.J. said:

“In truth, the conviction is only proof that another court considered that the defendant was guilty of careless driving. Even were it proved that it was the accident that led to the prosecution, the conviction proves no more than what has just been stated. The court which has to try the claim for damages knows nothing of the evidence that was before the criminal court. It cannot know what arguments were addressed to it, or what influenced the court in arriving at its decision. Moreover, the issue in the criminal proceedings is not identical with that raised in the claim for damages.”

Then Lord Goddard concluded thus11:

“It is, in our opinion, safer in the interests of justice that on the subsequent trial the court should come to a decision on the facts placed before it without regard to the result of other proceedings before another tribunal.”

In the present case, the learned circuit judge rightly referred to the case of Hollington v. Hewthorn & Co., Ltd., but went on further

[p.392] of [1966] GLR 385 to say that there is an exception that when a party has pleaded guilty in a criminal court, that plea is admissible in evidence. Cross in his book on Evidence (supra) states at p. 377 as follows: “In cases in which there was a plea of guilty the plea may, by the existing law, be received as an admission under an exception to the rule against hearsay.” It is obvious that the plea may be admitted and not that it shall be admitted. The case cited by Cross for this rule is R. v. Moreau.12“ The same case is cited in Phipson on Evidence (9th ed.) at p. 448 where it is stated that the record of judgment upon a plea of guilty is admissible against a party in a civil action as a solemn judicial confession of the fact. I have had the opportunity of reading this report and I must confess that the case itself does not lay down such a rule. Lord Denman C.J. merely ruled in that case that the decision of an arbitrator in respect of a fact is no more than a declaration of his opinion, and there is no instance of such a declaration of opinion being received as evidence of a fact against the party to be affected by the proof of it in any criminal case. In the report we have this dialogue13:

“[Coleridge] Mr. Roscoe cites, from 2 Phil. Ev. 203, 7th ed., a ruling of Lord Tenterden, at Nisi Prius, that a plea of guilty to an indictment for assault could not be given in evidence against the same defendant when sued in a civil action for the same assault.—A plea of guilty, in such a case, is often rather a matter of arrangement than an avowal of guilt. Lord Denman C.J. I do not think Lord Tenterden could have ruled so: why does what a man says of himself cease to be evidence by being said in Court?”

Then in the footnote reference is made to the Digest of the Law of Evidence & at Nisi Prius, p.139 (7th ed.) by Mr. Phillipps who in his eighth edition cited the decision as a holding that such evidence is not conclusive as to his guilt and to the ninth edition where he says that the evidence “seems at least to be admissible.”

The same principle is repeated in Roscoe’s Digest of the Law of Evidence (18th ed.) at p. 207 where the following passage can be found:

“Notwithstanding some authorities to the contrary (B.N.P. 245; Gilb. Ev. 6th ed., 26) it is now settled that a record of a conviction is inadmissible as evidence of the same fact coming into controversy in a civil suit . . . In many of the earlier cases the conviction was held inadmissible by reason of the evidence [p.393] of [1966] GLR 385 on which it was procured. . . . But the conviction was also inadmissible, on the ground that it was res inter alios acta, and this objection is still in force. Yet, a plea of guilty on an indictment for assault is evidence by way of admission against the defendant in an action for that assault. Though a verdict of guilty would not be evidence.”

Roscoe also cites R. v. Moreau and cites Phillipps, Evidence (7th ed.).

Nevertheless, in this appeal, I am of the opinion that irrespective of the second appellant’s plea of guilty in the criminal court which is not conclusive proof of his negligence, there was independent evidence adduced in the civil proceedings in the circuit court which established the second appellant’s negligence. Indeed, the circuit court’s reliance on the plea of guilty was otiose although I realise that the plea was admitted ex abundanti cautela. The first appellant is therefore vicariously liable for the negligence of the second appellant on the evidence adduced in the civil proceedings.

It was further argued that the special damages were not strictly proved. I note that exhibits B and C were tendered and admitted without objection. If the recipient of these moneys should have been called to tender them, the exhibits should not have been allowed by the appellants to be tendered by the respondent. I do not think it is now opportune to complain in an appellate court.

The learned circuit judge further concluded that he considered the claim of £G3 per day for a taxi driver in Accra reasonable. I must confess that although I lived in Accra before my transfer to this court, I was not and I am not conversant with the earnings of taxi drivers in Accra and I have therefore great diffidence in my ability to disturb the learned circuit judge’s calculations as the plaintiff was not challenged in the witness-box as to the earnings claimed. For the above reasons, the appeal is dismissed.

DECISION

Appeal dismissed.