DIVISION: IN THE HIGH COURT, ACCRA
DATE: 8TH MARCH, 1963
BEFORE: PREMPEH J.
CASES REFERRED TO
(1) R. v. Moreau (1848) 11 Q.B.D. 1028; 116 E.R. 757
(2) Hollington v. Hewthorn [1943] K.B. 587; [1943] 2 All E.R. 35; 112 L.J.K.B. 463; 59 T.L.R. 321,
C.A.
(3) The Greta Holme [1897] A.C. 596; 77 L.T. 231; 13 T.L.R. 552, H.L.
NATURE OF PROCEEDINGS
ACTION for the recovery of damages for loss of use and damage to a vehicle based on the defendant’s
negligence and criminal conviction for negligent driving.
COUNSEL
E. L. Cole for the plaintiff.
Puplampu for the defendant.
JUDGMENT OF PREMPEH J.
In this case, the plaintiff claims against the first defendant as owner and against the second defendant as
hirer of Renault car No. ER 132 the sum of £G505 being amount of damage suffered by the plaintiff
when his Mercedes Benz car No. AG 1234 was involved in an accident with the said Renault car No. ER
132 as a result of the negligent driving of the second defendant.
[p.269] of [1963] 1 GLR 268
The plaintiff withdrew against the first defendant after the latter’s defence had disclosed no cause of
action against him, and for the purpose of this judgment, the second defendant shall hereafter be referred
to as “the defendant.”
By his statement of defence, the defendant denied that the accident was caused by his negligence, and he
pleaded in the alternative that if even he was negligent, which he denied, the accident was caused by the
contributory negligence of the driver of the plaintiff’s car No. AG 1234.
The facts of the case are that on or about the 20th October, 1961, the plaintiff was travelling in his said
car from Accra to Kumasi, being driven by his chauffeur, and upon arriving at a point near a Mobil oil
petrol filling station on the main Koforidua Broadway Street, his car which was travelling behind the
defendant’s vehicle No. ER 132, ran into the defendant’s said vehicle thereby occasioning considerable
damage to the plaintiff’s car.
It was the plaintiff’s case that as his car approached the defendant’s vehicle, the defendant signalled that
he was entering the petrol filling station which was on the left-hand side of the road, and that without
further warning the defendant’s vehicle swerved again immediately towards the right, and that was how it
happened that his car ran into the defendant’s vehicle. He claims in these circumstances that the defendant
was negligent and therefore responsible for the damage done to his car. The amount of £G505 which the
plaintiff claims represents £G430 for loss of use of his said car No. AG 1234, from the 20th October,
1961, to the 13th January, 1962, at £G5 per day, and £G75 being his proportion of the risk in accordance
with the terms of his insurance policy.
The defendant’s evidence was a denial that he signalled first towards the left and then swerved to the
right, and was to the effect that he gave a signal indicating that he was moving towards the right in order
to enter into a side street on the right-hand side of the road, and that plaintiff’s car which was travelling at
a terrific speed violently hit his car and caused some damage to it.
He also claimed that the accident was due to the negligence of the driver of the plaintiff’s vehicle, and
that as pleaded, if in any case he was found to be negligent, the plaintiff’s driver contributed to his
negligence in causing the accident.
When this accident was reported to the police, measurements and statements were taken, and eventually
the defendant was charged before the District Court, Koforidua, where he pleaded guilty to careless
driving and was convicted and sentenced to pay a fine of £G10 or two months imprisonment with hard
labour. Counsel for the defendant objected to the certified true copy of the record of plea and conviction
of the defendant being admitted in evidence and in support of his objection he relied on the case of
Hollington v. Hewthorn.1 Now the case of Hollington v. Hewthorn
[p.270] of [1963] 1 GLR 268
settles the point that if A. pleads not guilty to a criminal charge, but the case is heard and he is convicted,
the record of judgment upon this plea is not receivable against A. in a civil action as an admission to
prove his guilt. So that if the defendant in this case had pleaded not guilty and had been tried and
convicted of the offence of careless driving, that objection would have been well-founded both on
principle and on the authorities.
But it has been held in the case of R. v. Moreau2 that where A. pleads guilty to a criminal charge and is
convicted, the record of judgment upon this plea is admissible against him in a civil action as a solemn
judicial confession of the fact. In these circumstances therefore I permitted the record to be put in
evidence only as prima facie evidence of the defendant’s negligence.
In order, however, to further establish the defendant’s negligence, the plaintiff called as one of his
witnesses the police officer who took measurements on the spot, and it was his evidence that demolished
the very fabric of the plaintiff’s case. It established the fact that the width of the road where the accident
took place was 37 feet, that from the point of impact to the near-side gutter was ten feet, and on both sides
of the point of impact there was sufficient room for the plaintiff’s car to pass without hitting the
defendant’s vehicle.
His evidence further established that the brake marks of the plaintiff’s car from where the application of
the brakes started to the point of impact measured 105 feet and that the plaintiff’s car must have been
travelling at a speed of between 45 to 55 miles per hour in Koforidua town; and that the defendant’s
vehicle was in fact turning towards the right-hand side of the road into a side street about ten feet ahead of
the point of impact.
There can be no doubt on this independent but most important evidence that the cause of the accident was
the plaintiff’s car, and but for the record of the defendant’s conviction, which has already been admitted
in evidence, there could be no alternative than to dismiss the plaintiff’s claim.
In all the circumstances I consider that the proper assessment of the plaintiff’s share in the responsibility
for the damage is 80 per cent. and that of the defendant 20 per cent.
I shall now consider the plaintiff’s claim for loss of use. It was laid down in the case of The Greta Holme3
that a person who is deprived of the use of his chattel through the wrong of another can recover damages
for the loss of use of that chattel whilst it was under repair-so that the plaintiff’s claim herein for loss of
user is maintainable save that it should be limited to the apportionment of liability between the parties.
[p.271] of [1963] 1 GLR 268
I am not satisfied on the evidence that for the period of 86 days within which the plaintiff’s car was under
repair, the plaintiff spent £G5 per day on taxi fares. The evidence satisfies me that he had a second
Chevrolet car which he used to continue his journey to Kumasi. I am of the view that this is the car which
he used during the period that the damaged one was under repair, and that therefore he could not have
spent more than £G1 per day on petrol. I find in the result that the amount for damages suffered by the
plaintiff for loss of use within the period is £G86, and that his proportion of the risk in accordance with
the terms of his insurance policy is £G75- making in all £G161.
Upon my finding as to the plaintiff’s share of the responsibility for the damage, and without regard to
what the defendant himself suffered which was not proved, I come to the conclusion that the plaintiff is
only entitled to recover from the defendant the sum of £G33. There shall therefore be judgment for the
plaintiff and against the defendant for the sum of £G33. I order that each party shall bear his own costs.
DECISION
Judgment for the plaintiff.
