BERFI v. OWUSU [1966] GLR 583

Division: HIGH COURT, KUMASI

Date: 22 JUNE 1966

Before: BAIDOO J.

CASES REFERRED TO

(1) Hollington v. Hewthorn & Co., Ltd. [1943] 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.

(2) Oyewole v. Kelani (1948) 12 W.A.C.A. 327.

(3) Wheton v. The Lord Mayor, Aldermen and Citizens of Cardiff recorded in Kemp and Kemp on Quantum of Damages, (2nd ed.), Vol.1, p. 230.

(4) Phillips v. South Western Railway Co. (1879) 4 Q.B.D. 406, on appeal 5 Q.B.D. 78; 41 L.T. 121; 43 J.P. 749; 28 W.R. 10, C.A.

NATURE OF PROCEEDINGS

ACTION by the plaintiff for damages for personal injuries sustained as a result of the negligent driving of the defendant’s driver. The facts are sufficiently set out in the judgment. COUNSEL J. H. Benjamin for the plaintiff.

K. G. Osei-Bonsu for the defendant.

[p.584] of [1966] GLR 583

JUDGMENT OF BAIDOO J.

I believe the evidence of the plaintiff that on 2 March 1962 as he was travelling from Senchem on his motor vehicle No. AN 1748 the defendant’s timber truck No. AN 7807 loaded with timber logs and travelling in the same direction towards Kumasi at a terrific speed tried to overtake his, the plaintiff’s vehicle which was then loaded with some 22 passengers, the plaintiff’s vehicle being a one and half ton Bedford commercial lorry. According to the plaintiff the incident happened near Potrikrom about 27 miles from Kumasi at a portion of the road which was so narrow that the defendant’s driver should not have attempted to overtake the plaintiff’s vehicle at all, but the defendant’s driver negligently drove on at a terrific speed and as he was about to overtake the plaintiff’s vehicle, the defendant’s driver so recklessly drove the defendant’s timber truck that an iron bar fixed on the timber truck hooked the plaintiff’s vehicle which was thereby pushed with great force into the ditch on the left hand or near side of the road as one faces Kumasi. The plaintiff himself received severe head injuries and he lost consciousness as a result of the accident.

One of the passengers travelling on the plaintiff’s lorry at the time was Kofi Karikari who was also injured. He gave evidence as the plaintiff’s first witness confirming the plaintiff’s evidence. The defendant never once attended court and he failed therefore to give any evidence in opposition. Three inconsistent pleadings were in the course of the proceedings filed by the defendant’s solicitors. In the defendant’s original pleadings filed on 8 May 1964 the defendant agreed with the plaintiff that the accident happened when the defendant’s timber truck was trying to overtake the plaintiff’s lorry. On 7 September 1964 the defendant amended his pleadings and stated that it was rather the plaintiff’s vehicle which was overtaking the defendant’s timber truck when the accident happened. Then on 19 October 1965 the defendant’s solicitors filed yet another amended pleadings this time stating that the defendant “neither owned vehicle No. 7807 on 2 March 1962, nor was the said vehicle involved in any accident on that date.” However the defendant failed to adduce any evidence to support his defence and as I believe the plaintiff and the plaintiff’s first witness, Kofi Karikari, I find as a fact that the accident happened when the defendant’s heavily loaded timber truck was trying to overtake the plaintiff’s smaller vehicle, and that the defendant’s driver drove at a terrific speed and in a negligent manner and that the accident was solely caused by the negligence of the defendant’s driver. I am satisfied in the evidence adduced before me that the police inspector at Mankranso failed to prosecute the defendant’s driver, Yaw Manu, for no good reason although the said driver was pointed out by the plaintiff’s [p.585] of [1966] GLR 583 first witness to a police officer who was conveying the plaintiff, the plaintiff’s first witness and other injured persons to Kumasi Central Hospital. I believe the plaintiff’s first witness’s evidence that when the accident occurred the defendant’s driver failed to stop but drove away; that a police vehicle on patrol duties arrived on the scene soon after the accident and that as one of the constables was conveying the injured person to Kumasi Central Hospital, the defendant’s driver who had parked the timber truck at mile eighteen on the Kumasi road was pointed out by the plaintiff’s first witness, a letter-writer, to the police officer who arrested the defendant’s driver Yaw Manu and took him to Mankranso Police Station. I am satisfied on the evidence that although the plaintiff’s first witness reported to the Mankranso police two days later as soon as he was discharged from the Kumasi Hospital and although the police took down the plaintiff’s first witness’s statement which clearly indicated that the defendant’s driver was to blame, yet the police failed to charge the defendant’s driver before the court. I believe from exhibit C, the plaintiff’s petition to the police, and the plaintiff’s evidence that the plaintiff reported the conduct of the police inspector at Mankranso to the Commissioner of Police in Accra and also to the Assistant Commissioner of Police, Kumasi, for refusing to charge the defendant’s driver and that the said police inspector out of sheer spite charged rather the plaintiff for permitting the use of his vehicle which had a defective hand brake, a charge which according to the plaintiff was dismissed by the magistrate. The driver of the plaintiff was also charged with careless driving and appeared in court for the first time on 22 May 1963 and on subsequent dates and pleaded not guilty. On 3 June 1963 the plaintiff ‘s driver changed his plea to guilty and was fined. I believe the plaintiff ‘s evidence that he had no knowledge that his driver ever pleaded guilty. The driver’s change of plea however does not estop the plaintiff in any way. The driver must have got fed up with the whole proceedings as it is clear from exhibit B, the proceedings, that the driver was arrested without warrant on 21 November 1962 and taken to court on 22 May 1963 after some six months’ delay. In court also there were some adjournments as the driver always pleaded not guilty. The original notes recorded by the trial magistrate were produced when the certified true copy exhibit B was being tendered because there was a dispute as to whether the driver actually pleaded guilty. The police accident report which the plaintiff’s counsel wanted to tender as an exhibit stated that the driver pleaded not guilty but was found guilty by the court, and it became necessary for the court to compare the certified copy with the notes in the original record book. The original record book showed

[p.586] of [1966] GLR 583 that the driver pleaded not guilty even on 3 June 1963 and the court therefore adjourned the case again to 10 June 1963. These notes were then cancelled and the court recorded that the accused had changed his plea to guilty and been fined £G15 or three months’ imprisonment with hard labour. It must be recalled that a finding of guilty by a criminal court is evidence of opinion which does not bind the accused in a civil court: see Hollington v. Hewthorn & Co., Ltd.1 and Oyewole v. Kelani,2 A plea of guilty by an accused person however may amount to an informal admission of negligence and evidence of it may be given in subsequent civil proceedings involving the accused if he is sued or sues in a civil action. However the driver can explain the reason why he pleaded guilty and if satisfied that he did not intend to admit thereby that he was negligent but pleaded guilty for instance to avoid his time being wasted in court, the court may ignore the plea and treat it as no admission of negligence. I believe the plaintiff’s evidence that he could not trace his driver to come and give evidence explaining his conduct. The driver’s plea of guilty cannot in the circumstances bind the plaintiff who knew nothing of the driver’s intention to plead guilty and who did not so authorise the driver.

On the evidence I am satisfied that the plaintiff’s driver was free from blame and I find as a fact that the defendant’s driver drove the defendant’s timber truck No. AN 7807 although loaded with timber logs, at a terrific speed, and in trying to overtake the plaintiff ‘s smaller passenger lorry in a narrow portion of the road near mile 27 on the Kumasi-Sunyani road, the defendant’s driver negligently pushed the plaintiff’s vehicle into the bush, thereby causing severe head injuries to the plaintiff.

The evidence of Dr. Anfom called as the plaintiff ‘s fourth witness showed that the injury to the plaintiff’s skull was severe and nearly fatal and that the plaintiff was unconscious for 48 hours. The plaintiff was admitted to hospital for four months and had to undergo a series of operations. After his discharge the plaintiff continued as an out-patient receiving further treatment. The relevant portion of the doctor’s evidence was as follows:

“He (the plaintiff) regained consciousness 48 hours after admission. He had a severe compound fracture of the skull involving the frontal region and the left eye. It was a depressed compound fracture, i.e. the fracture had sunk in. The wound in relation to the fracture was running across the forehead from the corner of the left eye towards the hair line. The wound became infected

[p.587] of [1966] GLR 583 because of contamination with dirt on the scene and we had to perform a series of operations to remove the infected bone. He was discharged on 7 July 1962. He continued to report at intervals for further treatment. On 4 December 1962 I had occasion to examine the plaintiff again. His general condition was then good. He complained of pains in the left eye when exposed to the sun, and also pains in the neck. On examination I found that in spite of the severity of the original wound there was no residual damage to the central nervous system. He had however deformity of his face in the form of a depression of the frontal region of the skull. The depth of the depression was approximately three-eighths of an inch. There was also undue prominence of the nasal bones. There was also a disfiguring scar at the side of the original wound. I had the skull x-rayed and it showed an oval defect approximately two and a half by one inch above the left eye. This defect had been caused by removal of an infected bone. I assessed his permanent incapacity to be 55 per cent. This was based upon the cosmetic effect of the accident and also on the weakness of the skull. If there were to occur any further injury to the head the effect would be rather disastrous as the brain has not got as much protection as it had originally.”

The plaintiff is asking for damages against the defendant for the injuries caused to his person by the negligence of the defendant’s driver, Yaw Manu. I accept the evidence of the plaintiff and Seidu Moshie the plaintiff’s third witness that as a result of the accident the plaintiff has had to engage him the plaintiff’s third witness, and another farm labourer to care for the plaintiff’s cocoa farm and that each of the two labourers is paid on the average £G100 or ¢240.00 per annum as abusa tenants. I am satisfied on the evidence that the accident happened on 2 March 1962 and that after four months admission to hospital the plaintiff was discharged but had to receive further treatment as an out-patient till 4 December 1962 when the doctor examined him again. It is reasonable to expect that the plaintiff could do no work nor attend to his farm all that time and therefore the plaintiff is entitled to claim the full cost of labour he expended during the first year immediately following the accident. I therefore allow the plaintiff £G200 being the amount established to be the cost of labour on the plaintiff’s cocoa farm for one year. I also allow the plaintiff £G8 6s. being the hospital bill the plaintiff paid.

On the question of prospective earnings if I accept the plaintiff’s age at the time of the accident to be 45 years of age and allow the normal span of a cocoa farmer’s life to be 65 to 70 years I am of [p.588] of [1966] GLR 583 the view that fifteen years of purchase for the plaintiff is a reasonable figure. If the plaintiff were to rely on the hired labourers to take care of his cocoa farm for the rest of the plaintiff’s life that would cost the plaintiff £G200 roughly a year for the fifteen years of purchase, but the degree of the plaintiff’s incapacity is 55 per cent so that will allow the plaintiff roughly £G200 x 15 x 55 per cent, i.e. £G1,650. I now turn my attention to the question of damages for pain and suffering and for loss of amenities. In the case of Wheton v. The Lord Mayor, Aldermen and Citizens of Cardiff in which judgment was given by the Court of Appeal in England on 15 October 1953 the facts as recorded in Kemp and Kemp on The Quantum of Damages (2nd ed.), Vol. 1, p. 230 are as follows:

“The plaintiff was aged 13 at the date of the accident, January 15, 1952. He was thrown from a bus and struck his head on a stationary vehicle. The injury which he sustained was a severe injury to the frontal bone in his head and also an actual loss of brain tissue. He was three weeks in hospital and three months away from school. In the twelve months before the trial he had carried on with his school activities and with many of his athletic activities. It would be necessary for him to have an operation, when he finished growing, to give some protection to the front of his head. There was a remote possibility of meningitis developing. There was a 10 per cent. possibility of epilepsy developing at some later date. The learned commissioner, Sir Ernest Goodman Roberts, awarded the plaintiff £2,250 general damages in addition to a small sum of special damages. The Court of Appeal (Evershed M.R., Morris and Jenkins L.JJ.) dismissed the defendants’ appeal against this award.”

In the Wheton case the majority of the lord justices were of the view that the danger to the boy’s health was only a remote possibility but then they refused to upset the trial court’s assessment because they stated the plaintiff suffered a grave injury and much pain. In the instant case the doctor’s evidence shows that the plaintiff has as a result of the accident an “egg-shell” skull, a most gloomy and horrible prospect. In my view £G2,200 general damages for pain and suffering and for loss of amenities is reasonable. In assessing the damages I have borne in mind the observation of Cockburn C.J. in Phillips v. South Western Railway Co.3 where he stated:

[p.589] of [1966] GLR 583

“But we think that a jury cannot be said to take a reasonable view of the case unless they consider and take into account all the heads of damage in respect of which a plaintiff complaining of a personal injury is entitled to compensation. These are the bodily injury sustained; the pain undergone; the effect on the health of the sufferer, according to its degree and its probable duration as likely to be temporary or permanent; the expenses incidental to attempts to effect a cure, or to lessen the amount of injury; the pecuniary loss sustained through inability to attend to a profession or business as to which, again, the injury may be of a temporary character, or may be such as to incapacitate the party for the remainder of his life. If a jury have taken all these elements of damage into consideration, and have awarded what they deemed to be fair and reasonable compensation under all the circumstances of the case, a Court ought not, unless under very exceptional circumstances, to disturb their verdict.”

Having considered all the full circumstances of this case and the relevant legal principles involved I award the plaintiff the total damages of £G200 plus £G8 6s. plus £G1,650 plus £G2,200 as already discussed and I accordingly give the plaintiff judgment for £G4,058 6s. against the defendant. Costs for the plaintiff assessed at ¢240.00 inclusive.

DECISION

Judgment for the plaintiff.

S. K. T.