HIGH COURT, ACCRA
Date: 26 NOVEMBER 1973
ABBAN J
CASES REFERRED TO
(1) Overseas Tankship (U.K.), Ltd. v. Morts Dock and Engineering Co., Ltd. (The Wagon Mound) [1961] A.C. 388; [1961] 1 All E.R. 404; 105 S.J. 85; [1961] 1 Lloyd’s Rep. 1, P.C.
(2) Glasgow Corporation v. Muir [1943] A.C. 448; [1943] 2 All E.R. 44; 112 L.J.P.C. 1; 169 L.T. 53; 107 J.P. 140; 59 T.L.R. 266; 87 S.J. 182; 41 L.G.R. 173, H.L.
[p.162] of [1974] 1 GLR 161
(3) Aldham v. United Dairies (London), Ltd. [1940] 1 K.B. 507; [1939] 4 All E.R. 522; 109 L.J.K.B. 323; 162 L.T. 71; 56 T.L.R. 201; 84 S.J. 43, C.A.
NATURE OF PROCEEDINGS
ACTION by the plaintiff, an injured passenger in the defendants’ vehicle claiming damages for negligence. The facts are fully set out in the judgment.
COUNSEL
G. A. Mustapha for the plaintiff.
No appearance by or on behalf of the defendants.
JUDGMENT OF ABBAN J
The plaintiff is claiming 010,000.00 general damages and 0142.90 special damages against the defendants for the injuries sustained by him as a result of a motor accident. The plaintiff contends that the said accident occurred through the negligence of the defendants. It should be observed that the defendants were served with hearing notices but they refused, without explanation, to turn up. The hearing of the case therefore proceeded in their absence.
On 28 February 1968, the plaintiff travelled in vehicle No. GF 3150, as a passenger. The first defendant was the owner of that vehicle, and the second defendant was the driver thereof. The vehicle travelled from Abor to Sogakope in the Volta Region. In the course of the journey, one of the rear tyres of the vehicle got burst and the vehicle tumbled off the road and eventually landed in a ditch.
The passengers on the vehicle, including the plaintiff, sustained injuries. The plaintiff was first rushed to Abor clinic in a hired lorry. From this clinic he was sent to Akatsi clinic. He was again transferred to Adidome Hospital. A week later, that is, on 8 March 1968, he was conveyed to the Military Hospital, Accra, for further treatment.
In their statement of defence, filed on 9 July 1970, the defendants admitted that the first defendant was the owner of the said vehicle. They also admitted that the second defendant was the first defendant’s driver at the time of the accident. They, however, denied the particulars of negligence as alleged by the plaintiff, and averred that the injuries suffered by the plaintiff were the result of “inevitable accident, totally unforeseen.”
The first issue is whether, on the pleadings and on the evidence, the defendants are entitled to avail themselves of this kind of defence. As I have said, the defendants did not give evidence, but by their pleadings they are in effect contending that the risk was one which they could not have foreseen and guarded against.
I do not here intend to discuss in detail the foresight principle. I would only say in passing that this principle seems to have been founded mainly on the alleged relativity of negligence to particular consequences: see Overseas Tankship (U.K.), Ltd. v. Morts Dock and Engineering Co., Ltd. (The Wagon Mound) [1961] A.C. 388 at pp. 425—426, P.C. As it has often been said, negligence cannot be spoken of “in the air. “An act may be negligent in regard to one consequence, but not in regard to
[p.163] of [1974] 1 GLR 161
another; and since negligence consists in failing to guard against some foreseeable risk, an act may be termed negligent only in regard to foreseeable consequences. The negligence of a defendant will not be relevant to harm in fact caused by it, unless the harm materializes through a dangerous event which he should have foreseen and guarded against.
In Glasgow Corporation v. Muir [1943] A.C. 448, H.L. it was alleged that the appellants were negligent in allowing a tea urn to be carried through a passage way thronged with children. The urn was dropped and scalded the respondents, but there was no evidence that it was caused by jostling. Lord Romer at pp. 467-468, pointed out that failure to guard against jostling would not make the appellants liable for any dropping of the urn caused, say, by a sudden fall of plaster and that “the appellants can only be fixed with liability if it can be shown that there materialized a risk that ought to have been within the appellants’ reasonable contemplation.” The same point was emphasized by Lord Greene MR. and du Parcq L.J. in the case of Aldham v. United Dairies (London), Ltd. [1940] 1 K.B. 507 at pp. 511 and 514, C.A. respectively.
The question then is, was the risk which materialized in the present case one which ought to have been “within the defendants’ reasonable contemplation?” In other words, was the risk one that the defendants, under the circumstances of this particular case, should have foreseen and guarded against?
From the plaintiff s evidence, I find that before the journey in question started, the defendants were aware that the rear tyre was worn out. They knew that the tyre had worn out to such an extent that it was unsafe for the vehicle to be on the road. Despite this knowledge of the condition of the tyre, he, the first defendant, did not care to provide or to refit the vehicle with a roadworthy or serviceable tyre before permitting the vehicle to be driven on such a busy high road. Furthermore, in spite of the fact that the second defendant was also aware of the defective condition of the tyre, he drove the vehicle at a speed of over 70 miles per hour. I think this is a clear case of negligence on the part of both defendants.
I think the accident could have been avoided if the first defendant, as the owner of the vehicle, had changed that worn out tyre before permitting the vehicle to be driven. The defective condition of the tyre made the vehicle potentially dangerous on the road; and in my view, an owner of a defective and potentially dangerous vehicle who causes or permits it to be driven should not be allowed to escape liability for the consequences of an accident, by showing that no care or skill on his part could have remedied the dangerous condition of the vehicle.
The first defendant and his driver owed a duty to take reasonable care for the safety of the passengers on the vehicle, and I am satisfied that the defendants wilfully neglected to do that which a reasonable man, in those circumstances, would have done, and they cannot be heard to say that the accident was “inevitable” and “unforeseen.” The bursting
[p.164] of [1974] 1 GLR 161
of a detective tyre, in my opinion is an event which the defendants ought to have foreseen and guarded against. A man of ordinary prudence using ordinary care and skill would have clearly foreseen the consequences of persisting in driving a vehicle with an extremely worn out tyre, and the fact that the defendants themselves might not have foreseen the accident is irrelevant. The standard of foresight required here is not that of the defendants but that of a reasonable man in those circumstances. That is, the standard of conduct is an external standard and “takes no account of the personal equation of the man concerned.”
In Glasgow Corporation v. Muir (supra), Lord Macmillan, in reading his judgment in the House of Lords, at p. 457, observed: “The standard of foresight of the reasonable man . . . eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.” In my view, the defence of inevitable accident is not open to the defendants. I therefore hold that the accident occurred as a result of the negligent conduct of the defendants. Accordingly, I find them liable, jointly and severally, to the plaintiff s claim.
Assessment of damages
In the course of his evidence Dr. K. G. Korsah tendered a medical report, exhibit D. This report was prepared by one Dr. Mitra who is no longer in the country. Dr. Mitra was the doctor who treated the plaintiff at the Military Hospital. It is clear from the medical report that the plaintiff suffered serious injuries to the neck and to the chest. He also sustained a “dislocation of the fifth cervical spinal on the sixth,” but there was no evidence of neurological complication. In addition, the plaintiff had a fractured right humerus through its midshaft with considerable displacement.
At the Military Hospital, he was subjected to operations during which the humeral fracture was manipulated and immobilized in a plaster of Paris casting. His neck was also immobilized into what is called a “Minerva” plaster jacket. He was discharged from the hospital on 22 April, but continued to receive treatment as an out-patient. On 30 September, the plasters were all removed and it was not until 7 October 1968, when he was finally discharged. On the whole, I find that the plaintiff was in pain for eight months. At present, the movement at his right elbow joint is restricted by fifteen degrees; and at the right shoulder joint by “twenty degrees of abduction and ten degrees of the external rotation.” His permanent disability has been assessed at 26 per cent.
In the circumstances, I think the sum of 03,900.00 should be reasonable compensation for pain and suffering. The plaintiff incurred some expenses. That is, he paid hospital fees, and paid for the special diet which was recommended for him while he was in the hospital. He also made expenses on transport. Altogether, the plaintiff said he spent 0158.90. However, in his writ of summons, he claimed only 0142.90.
[p.165] of [1974] 1 GLR 161
No attempt was even made to amend the writ of summons, and I will not allow him more than the
0142.90 asked for in the writ.
The plaintiff is about 34 years and he is a principal teacher. He never suffered any loss of earnings, and there is also no evidence that the injuries will in any way affect his earning capacity. I will not therefore make any award under those heads. But I will allow him 0150.00 for loss of amenities. The following will therefore be the summary of his entitlements.
Pain and suffering …………….03,900.00
Hospital fees, expenses on diet and transport .. 0 142.90
Loss of amenities …………….0 150.00
Total……………………………….04,192.90
Accordingly, I will enter judgment for the plaintiff against the defendants, jointly and severally, for the sum of 04,192.90 with costs of 0230.00, inclusive of a fee to counsel.
DECISION
Judgment for the plaintiff.
S.Y.B.B.
