BORKETEY v. ACHINIVU AND OTHERS [1966] GLR 92

Division: SUPREME COURT

Date: 31 JANUARY 1966

Before: SARKODEE-ADOO C.J., APALOO AND SIRIBOE JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL against the judgment of Mills-Odoi J. dismissing the plaintiff’s claim for loss of earnings.

COUNSEL

G. R. M. Francois for the appellant.

No appearance by or on behalf of the respondents.

JUDGMENT OF APALOO J.S.C.

At about 10 p.m. on 14 November 1959 a collision occurred between an Oxford Morris taxicab No. AF 283 driven by the appellant (hereinafter called the plaintiff) and a bus No. AF 9223 in the charge of the third respondent. The taxicab which belonged to the plaintiff, was extensively damaged as a result of this accident and was written off as a total loss. It was the plaintiff’s claim that this accident occurred as a result of the negligence of the third respondent. The negligence charged against the third respondent was copiously set out in the statement of claim.

The respondents made a half-hearted denial of liability in their statement of defence but conceded that the plaintiff was entitled to various sums of money which it is unnecessary, for present purposes, to set out. At the trial, the respondents frankly conceded negligence and as an issue, that was withdrawn from determination. What the respondents disputed was the quantum of damages to which the appellant was entitled and the loss of earnings. The ground

[p.94] of [1966] GLR 92 on which the respondents considered themselves entitled to resist the claim for loss of earnings, was what they submitted was the true legal position. They argued that as the vehicle was a total loss, they were liable to pay to the plaintiff the pre-accident value of the car and no more. The appellant urged the contrary. The learned trial judge (Mills-Odoi J.), in a full and comprehensive judgment determined the issue of law in favour of the respondents. After citing a number of decided cases and a passage from Charlesworth on Negligence, the judge held that the plaintiff was entitled to the pre-accident value of the car and to towage expenses only. Accordingly, he dismissed the plaintiff’s claim for loss of earnings. It is against this part of the judgment that this appeal has been brought. It was submitted for the plaintiff that in affirming the proposition of law contended for and on behalf of the respondents, the learned judge was in error. It was said that the guiding principle of law in this case is restitutio in integrum. As the plaintiff’s taxicab was shown to be earning profits, the plaintiff was entitled not only to the pre-accident value of this car, but also to the profits, which but for the accident, he would have earned. In support of this, counsel referred us to a number of decided cases including Darbishire v. Warran,1 and the Scottish case of Pomphrey v. Cuthbertson (James A.).2 In my opinion, this contention is sound.

If the view of law which found favour with the learned judge be right, it would be more profitable for a wrong-doer to destroy a person’s chattel than merely damage it. It would also, in any event, be impossible to reconcile it with the proposition of law which Lord Sumner laid down in the Admiralty Commissioners v. S.S. Chekiang3 and which has since been regarded as good law, namely, “the dominant rule of law is the principle of restitutio in integrum, and subsidiary rules can be justified only if they give effect to that rule [sic.].”4 Differently put, the principle appears to be that the plaintiff is entitled to receive as damages such a sum of money as will place him in as good a position as he would have been if the accident had not occurred. In holding as he did, that the plaintiff was entitled to no more than the pre-accident value of the car, the learned trial judge founded himself on passages from four maritime cases, namely, The City of Rome,5 The Kate,6 The Racine,7 The Llanover,8 and as

[p.95] of [1966] GLR 92

I said, a passage from Charlesworth on Negligence. Except the case of The City of Rome (the report of which is unavailable), I have read the cases from which the learned judge quoted extracts and in so far as it is possible to extract from them a ratio decidendi, it is to the effect that the measure of damages in the case of a vessel totally lost by collision, is her pre-accident value together with a sum as will represent a profit in current but not future charters. To the same effect is the passage which the learned judge relied on in Charlesworth on Negligence.

I find nothing in the judgments or in the textbook statement of the law which lends colour to the proposition of law which was put forward by the respondents and affirmed by the learned trial judge. Counsel for the appellant thought that the cases relied on by the learned judge are all maritime cases and implied that different rules apply to collisions on land. In my opinion, there is no basis for this distinction. Whether the damage giving rise to a claim for compensation be done on land or at sea, the principle is the same, namely, that the wrong-doer must make reparation for his wrongful act and the owner of a damaged article is entitled to restitutio in integrum.

In Darbishire v. Warran,9 the plaintiff’s car was damaged by the negligence of the defendant. The car was a constructive total loss and the plaintiff was held entitled to the market value of the car at the date of accident and to expenses incurred by him in hiring alternative transport until he found a replacement for the car. To the same effect was the decision in the Scottish case of Pomphrey v. Cuthbertson (James A.),10 another case to which counsel for the appellant helpfully referred us. Although the point taken in that case was one of pleading, the headnote states:

“Opinions that, on the footing that the damaged car was a constructive total loss, the true measure of damages was its market value at the date of the collision plus the cost of hiring a substitute until a new car could be procured and made ready for use, less the ‘scrap value’ of the damaged car.” These cases inferentially reject the learned judge’s thesis that the owner of a car which is damaged beyond repair is entitled to no more than the pre-accident value of the car. The local case of African and Continental Bank Ltd. v. Oladapo,11 proceeded on the same basis. In that case, the plaintiff sued the defendant bank for damages

[p.96] of [1966] GLR 92 wrongful detention of a lorry which had been seized under a document purporting to be a bill of sale. Before the writ issued, the bank sold the lorry which was thereafter permanently lost to the plaintiff. In an action against the bank for damages, the plaintiff was held entitled not only to the value of the lorry at the date of seizure, but to his loss of earnings for a determined period. It is unnecessary to multiply decided cases. I think the learned judge’s view of the law was wrong and indeed the cases which I have examined stand as eloquent testimony to this. In my opinion, the true rule of law is what the learned judge himself quoted from Charlesworth on Negligence (4th ed.), p. 532, para. 1255 to wit: “Where a chattel is completely destroyed or so damaged as not to be worth repairing, the measure of damages is the value of the chattel together with any consequential loss following on the destruction of the chattel.” By this principle, where the chattel is a private car which is permanently lost to its owner, the consequential loss will be the cost of hiring alternative transport until the procurement of a new car and where the car is a taxi, the consequential loss will be the loss of earnings until such time that another taxi can reasonably be obtained.

Accordingly, in my judgment, the plaintiff was entitled not only to the market value of the taxicab at the date of the accident, but also to the profits he would have made had the car remained on the road. But the plaintiff’s right to compensation is qualified by the equally well settled rule of law that the plaintiff is himself under a duty to take all reasonable steps to mitigate the loss and he cannot claim any part of the damage which is due to his neglect to take such steps. The question to be determined therefore is: For what length of time is the plaintiff entitled to recover from the respondents his loss of earnings? Had the plaintiff purchased a taxicab of comparable kind the day after the accident and commenced work immediately, the plaintiff would not have lost his daily earnings. But there is no evidence that the plaintiff in fact procured a substitute—certainly at any rate, not before judgment. There is no evidence that the respondents paid or offered to pay him the pre-accident value of the taxicab at any time before judgment nor is it possible to say on the evidence that the plaintiff had any funds of his own to do this. In the case of Jewelowski v. Propp,12 it was held that a person cannot be called upon to spend money to enable him to minimise the damages. I think in all the circumstances of this case, the plaintiff is entitled to recover from the respondents, his loss of earnings from the date of the accident to the day of judgment. [p.97] of [1966] GLR 92

The final question is: How much on the evidence can the plaintiff recover as loss of earnings from the respondents per diem? Although the learned judge determined the market value of the car at the date of the accident, he did not find how much per diem the plaintiff lost by the accident for the very good reason that the judge thought, as I have endeavoured to show, erroneously, that the plaintiff was not, as a matter of law, entitled to loss of earnings. The plaintiff testified that he made a net profit of between £G3 to £G4 10s. per day. This evidence was not disputed by cross-examination. To support his evidence, the plaintiff tendered a book showing his daily earnings from 1 January 1958 to 13 November 1959, that is a day before the accident. This record seems to have been carefully compiled and there is no reason to doubt its genuineness. This document shows that the plaintiff earned at least £G3 per diem but often sums exceeding that and the record shows that on occasions when his taxicab is hired out of town, he earns up to £G20 per diem. I hold it established therefore that the plaintiff lost his earnings of at least £G3 per diem from the date of the accident until the date of judgment. As the accident occurred about 10 p.m., I shall assume in favour of the respondents, that the plaintiff lost no income for that day. Accordingly, I hold the plaintiff entitled to recover from the respondents jointly and severally, the sum of £G3 per diem from 15 November 1959 to 31 March 1960, that is, 107 days inclusive. If my arithmetic is right, this works out at £G321.

Accordingly, I would allow the appeal and set aside that part of the judgment which dismissed the plaintiff’s claim for loss of earnings. In lieu of it, I would enter judgment for the plaintiff against the defendants jointly and severally for the sum of £G321 or its equivalent in cedis. JUDGMENT OF SARKODEE-ADDO C.J. I agree.

JUDGMENT OF SIRIBOE J.S.C.

I also agree.

DECISION

Appeal allowed.

G. N.