GHANA HIGHWAY AUTHORITY vs. MENSAH [1999-2000] 2 GLR 237

CASES REFERRED TO

(1) Donoghue v Stevenson [1932] AC 562; [1932] All ER 1; 147 LT 281, HL.

(2) Anns v Merton London Borough Council [1978] AC 728; [1977] 2 All ER 492; [1977] 2 WLR 1024, HL.

(3) Aryitey v Ayeley [1962] 1 GLR 225.

(4) Bonney v Yankum [1961] 1 GLR 133, SC.

(5) Livingstone v Rawyards Coal Co (1880) 5 App Cas 25; 42 LJ 334; 28 WR 357, HL.

(6) Yeboah v M Yamak & Co [1962] 1 GLR 120.

(7) Adjei v Yeboah [1962] 1 GLR 495.

(8) Dennis v London Passenger Transport Board [1948] 1 All ER 779; 64 TLR 269; 92 SJ 350.

[p.240] of [1999-2000] 2 GLR 237

(9) Yirenkyi v Tarzan International Transport [1962] 1 GLR 75.

(10) Norgbey v Asante [1992] 1 GLR 506.

APPEAL from decision of High Court, Cape Coast holding the defendant, which had statutory responsibility for, inter alia, the maintenance of public highways, liable to the plaintiff for injuries he sustained while walking on the road at Cape Coast.

Thomas Quarcoo for the defendant-appellant.

Kwabena Owusu for the plaintiff-respondent.

Owusu-Ansah JA. Delivered the first judgment at the invitation of Afreh JA. Briefly, the facts of this case are that on 12 December 1997, at about 7 pm, Mr Kojo Mensah, the 67-year old plaintiff herein, was walking on the road constructed over the famous bridge in Cape Coast, popularly known as “London Bridge.” The bridge caved in and created a hole in the road. His left leg fell into the resultant hole, with his buttocks on a portion of the road. According to the plaintiff, had it not been the walking stick he then used as fashion, he would have injured his genitals. He had to abandon his initial decision to attend a wake-keeping at a suburb of Cape Coast. He was assisted by his friend, the first plaintiff witness. The plaintiff states that he sustained injuries from which he has still not fully recovered.

Consequently, on 18 December 1917, the plaintiff brought this action against the Ghana Highway Authority, that is the authority set up by law with the responsibility for the maintenance, administration, control and development of public highways, ferries, road camps and traffic devices. Against the said authority, the plaintiff claimed:

“General and special damages arising out of the defendants gross negligence, and failing properly and /or efficiently to maintain the road at London Bridge in the Cape Coast municipality, resulting in a portion of the said bridge caving in, whilst the plaintiff was using the same as a pedestrian.”

The defendant in its defence emphatically denied liability, insisting that it owed no actionable duty of care to the plaintiff. Issues were joined principally on the questions:

[p.241] of [1999-2000] 2 GLR 237

(i) Whether or not the earth underneath the plaintiff’s feet gave way whilst the plaintiff was using the road in question as a pedestrian.

(ii) Whether or not the plaintiff suffered injury and pain as a result of the said accident.

(iii) Whether or not the plaintiff’s predicament is attributable to the negligence of the defendant.

(iv) At the hearing of the summons for directions, some additional issues were added including:

(v) Whether or not the maxim res ipsa loquitur is applicable to the instant case.

There were thus four major issues of fact set down for trial. In all, the plaintiff called three witnesses, including third plaintiff witness, the medical doctor. Mr Steven Berny Kwame Bonsu, a civil engineer, also gave evidence for the defence.

On 16 June 2000 the High Court, Cape Coast, presided over by Agyemang-Bempah J, found the defendant liable in negligence and accordingly, gave judgment in favour of the plaintiff. The court awarded ¢40,000,000 as general damages and ¢671,600 as special damages, in addition to the award of costs of ¢1,000,000 in favour of the plaintiff, thus making a total of ¢41,671,600.00. It is against this judgment that the defendant has now appealed to this court seeking to set aside the judgment in its entirety on three major grounds, namely:

(i) That the trial judge erred in law in making a finding of liability for negligence against the defendant.

(ii) That the trial judge erred in law in making a finding that the defendant owed an actionable duty to the plaintiff.

(ii) That the trial judge erred when, by way of general damages, she awarded an amount which is excessive and unwarranted in law.

(iv) Additional grounds to be filed on receipt of the record of proceedings.

I think it will not only be convenient but will also conduce to clarity of thought if we deal with the first two grounds together, that is to say: (i) that the trial judge erred in law in making a finding of liability for negligence against the defendant; and (ii) that the trial judge erred in law making a finding that the defendant owed an actionable duty to the plaintiff. It was

[p.242] of [1999-2000] 2 GLR 237 submitted on behalf of the defendant that the defendant owed no duty of care to the plaintiff, and that the trial judge was wrong in finding liability in negligence against the defendant.

In this connection, the test it twofold, namely: (a) whether the defendant owed a duty of care to the plaintiff; and (b) secondly, whether such duty was neglected leading to the injury complained of. It is generally agreed that the principles of negligence can hardly be discussed adequately without reference to the celebrated case of Donoghue v Stevenson [1932] AC 562 at 580, where Lord Atkin propounded what in popular parlance is often referred to as “the neighbour principle.” In a case from Scotland in which it was alleged that the plaintiff had been poisoned by defendant’s negligence in allowing a snail to get into an opaque bottle of ginger beer, manufactured by him and consumed by the plaintiff. The noble lord said: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be—‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’”

Upon a careful and meticulous analysis and examination of the evidence in its totality I have no hesitation in concluding, as did the learned trial judge, that all issues of fact set down for trial in the application for direction must be resolved in favour of the plaintiff. In my view, negligence, as a tort, occurs when the defendant: (i) owes a duty of care to the plaintiff; (ii) breaks that duty by failing to come up to the standard of care required by law; and (iii) thereby causes legally recognised damage to the plaintiff. The second and third aspects produce most of the dispute in court, but it is the first that gives rise to the most difficult conceptual problems.

Not infrequently, the courts of Ghana have affirmed their belief in, and acceptance of, the “Atkinian formula.” That formula received a further boost from the House of Lords in the case of Anns v Merton London Borough Council [1978] AC 728, HL. In that case the House of Lords unanimously concurred in a passage in the speech of Lord Wilberforce which I like to quote in full, for

[p.243] of [1999-2000] 2 GLR 237 it is as important and illuminating as it is relevant and enlightening. The noble lord emphasised at 751-752:

“. . . the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise . . .”

It has been strenuously argued that on the facts of the instant case the defendant failed to exercise any degree of competence that must be associated with the performance of its duty. Fortunately there is no paucity of authority on the point. Indeed numerous authorities have been cited by learned counsel on both sides, but the basic principles are clear. We seem to have a plethora of concepts in this type of tort: foreseeability; proximity; what is just and reasonable and as a residual category, policy. (The emphasis is mine.) One may be tempted to argue whether all this subtlety, these fine shifts of emphasis and degree, are of much practical importance. Be that as it may, I would prefer the foreseeability test. The defendant herein, aware as it was of the condition of the bridge, ought to have foreseen the possible consequences in such an eventuality.

It is true that the burden of proof rests fairly and squarely on the shoulders of plaintiff who asserts negligence to establish it, albeit on the balance of probabilities—that is to say, more likely than not, in other words. In my judgment there is ample evidence on record from which the court could and did find:(i) that the defendant owed a duty of care to the plaintiff; that (ii) there was a breach of that duty by failing to come up to the standard of care

[p.244] of [1999-2000] 2 GLR 237 required by law; and that (iii) the defendant thereby caused legally recognised damage to the plaintiff.

The defence called one witness, namely Mr Stephen Berny Kwame Bonsu, a civil engineer who was at all times material to this action, the director of road maintenance of the Ghana Highway Authority. He said the road was programmed for reconstruction in 1993 together with other roads in Cape Coast and Elmina. “But funding for the reconstruction of this particular road has prevented us from reconstructing it. We need the equivalent of US$200,000 to construct one kilometre of a road in a town or urban area.” He goes on to say “the road has outlived its life span of about 20 years. The road appears to have been built in 1905.” He admitted that a duty of care is owed to the public but added that it is only “up to availability of funds.” Earlier the defendant sought strongly to deny negligence under the existing Ghana Highway Act with precious little evidence in support. In Aryitey v Ayeley [1962] 1 GLR 225, Ollenu J (as he then was) stated (in holding (1)) that” a mere assertion on oath by a party to a suit that he relies on a statement he has previously filed does not make that statement evidence in the proceedings. That party’s case will be judged on the rest of the evidence, if any, produced by him. . .” As already indicated I am satisfied on the evidence that on the balance of probabilities the plaintiff did prove his case, and that the learned trial judge was right in finding the defendant authority liable in negligence.

Apart from the plaintiff’s allegation of negligence at common law, the plaintiff also alleges a breach of statutory duty. Indeed, as already pointed out, it was put to the defence witness in cross-examination thus: “Q The defendants as a public entity owes a duty of care to road users of your facility? A. Yes up to the availability of funds.” In other words, the defence was seeking refuge under a statutory provision for its failure to carry out its statutory duty, that is by law, in the absence of funding from the government, any body who required work to be done on the road would have to provide the funding himself. The defendant had maintained that within the limits of its resources, it carried out “routine maintenance.”

It is quite clear from the evidence that the plaintiff was not aware of the danger that the road condition posed and the damage resulting from the lack of proper maintenance of the road so as to require its repair at his (plaintiff’s) expense, as envisaged by the

[p.245] of [1999-2000] 2 GLR 237 statute even if indeed he was so minded. Section 29 of the Ghana Highway Authority Act, 1997 (Act 540) provides:

“29. Where the Authority is requested to carry out any development or expenditure outside the budget of the Authority by any person, body or agency the money for the development or expenditures shall be provided by that person, body or agency.”

It seems to me that this provision cannot avail the defendant as a defence to this action, because it is as irrelevant as it is inapplicable to the facts of this. The plaintiff had made no such request to the defendant authority. What is important is that the Ghana Highway Authority is now regulated by Act 540; but at the time of the alleged incident it was the Ghana Highway authority Decree, 1974 (NRCD 298) which regulated the authority. The authority clearly has a statutory duty which cannot be neglected with the excuse that it has no funds. The trial judge found, and there is ample evidence in support of the finding, that the defendant knew that the bridge had outlived its usefulness and needed to be replaced but only carried out perfunctory repairs on it, conscious no doubt of the fact that it posed a grave danger to the public. The obvious answer in the circumstances was to have closed down the bridge to users for the time being, until it had been rendered safe for road users.

One could say that strictly speaking the source of liability is not so much the statute but the common law duty of care and that the statute merely “concretises” and gives rigid and predictable form of what constitutes breach of that duty. I would hasten to add, however, that Anglo-Australian law tends to treat breach of statutory duty as a tort in its own right in all cases, even where there already exists a common law duty. We in Ghana are yet to adopt that approach to liability. In my view, it is preferable that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable considerations which ought to negative, or to reduce or limit the scope of the duty or the class of persons to whom the duty is owed. However, it seems to me that the categories of actionable negligence are not closed. And, if necessary, it should be extended to provide remedies for any unwarranted breach of duty which results in injury to the victim, as in this case, whether

[p.246] of [1999-2000] 2 GLR 237 the duty in imposed by statue or by common law. This view is prompted by growing awareness today, more than ever before, of individual rights which I think ought to be encouraged in the interests of justice and social responsibility. It was said in Bonney v Yankum [1961] 1 GLR 133, SC that the court should not shrink from overruling and setting aside a judgment if it is manifestly unjust and wrong.

Another issue that was canvassed is, res ipsa loquitur. It means in my view, that an inference of negligence is raised against the defendant by reason of the happening of certain events. It is commonly said that two main conditions must be met to entitle the plaintiff to rely upon the maxim. First, the thing causing the damage must be under the control of the defendant, or his servants. Thus, in one case where the plaintiff was hit by an object thrown or dropped from the defendant’s unidentified hotel room, the maxim was rejected on the basis that the guest, not the management, was in effective control of the contents of the room at the material time. The second requirement is that the accident must be such as in the ordinary course of things it could not happen without negligence. In my judgment, on the totality of the evidence in this case, both conditions are satisfied. And the learned trial judge was right in coming to the conclusion that there was negligence on the part of the defendant by invoking this maxim. The principle of res ipsa loquitor may justify, and in the case did justify, such a find of fact.

Another possible effect of the maxim is that it creates a presumption of negligence in which event, if the defendant came forward with no evidence of an innocent explanation, a court may be required to find for the plaintiff, as it did in the present case. I must confess I have looked in vain for such an innocent explanation. Furthermore the application of the maxim may create a situation in which the ultimate onus of proof is shifted to the defendant and he is required to produce an explanation which makes it more likely than not that there was no negligence on the part of the defendant. This obviously has not helped the defendant on the evidence as whole. I therefore hold that the defendant authority is liable in negligence to the plaintiff and affirm the judgment of the learned judge in that respect.

I now turn to the issue of damages, that is ground (3) of the grounds of appeal which reads: (a) “That the trial judge erred when, by way of general damages, she awarded an amount which

[p.247] of [1999-2000] 2 GLR 237 is excessive and unwarranted in law.” I think it is true to assert that our own system tends to lack the seemingly inexhaustible fertility of English law; nonetheless, after a considerable flirtation with that system, it is generally agreed in principle that where any injury is to be compensated by damages, in setting the sum of money to be given as reparation the court should as nearly as possible get at the sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation. And it is well established that when the court below applied the wrong principles, as in this case, in the award of damages, the appellate court can interfere. See for example the case of Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, HL. In the instant case, the learned trial judge merely held that: “This road is under the management and control of Ghana Highway Authority. As stated ante, I am propelled to enter judgment in favour of the plaintiff. He is to recover the sum of ¢40 million as general damages. He is to recover the sum of ¢671,600 from the defendants as special damages. I award cost of ¢1 million in favour of the plaintiff.”

This approach is untenable and leaves a lot to be desired. On the authorities, it is manifestly wrong. Indeed, I share the submission of learned counsel for the appellant in this connection. The Court of Appeal certainly has jurisdiction to interfere with the award of damages in cases like this.

The quantum of general damages awarded by the trial judge is not strictly supportable in law, as it was pronounced without due regard to the relevant principles. All damages awarded should be explained with reference to various heads of damages and figures awarded in each particular case. Thus in Yeboah v M Yamak & Co [1962] 1 GLR 120, it was held as stated in the headnote, holding (2)) that two main elements in the award of general damages in personal injury claims are: (i) the personal injury itself giving rise to pain and suffering and loss of the pleasures of life, and (ii) the financial loss, ie loss of earnings and the duration of the loss, considering any improvements to the health and working capacity of the plaintiff. Similar it was held in Adjei v Yeboah [1962] 1 GLR 495 at 496 (holding (2)) that: “the award of special damages for personal injuries should include the plaintiff’s loss of

[p.248] of [1999-2000] 2 GLR 237 earnings from the date of the accident till the date he was again fit for work.” The court cited with approval the case of Dennis v London Passenger Transport Board [1948] 1 All ER 779. I think the very vagueness of the negligence formula makes a dubious guide to the award of general damages.

Dr I K Abban, a medical practitioner, gave evidence as the third plaintiff witness. He tendered in evidence exhibits U and V. He said that on 11 December 1997, a day after the incident, the plaintiff did seek medical attention. The plaintiff then had a swollen left ankle and was referred to the specialist regional hospital for further treatment. The third plaintiff witness assessed the incapacity of the plaintiff to be 40 per cent. He admitted however that this assessment was made at the initial stage when he attended to the plaintiff, Kojo Mensah. Under cross-examination the third plaintiff witness stated, inter alia: “I have not seen him (the plaintiff) professionally to examine him but it seems there is not much of incapacity.” Exhibit U is not the final report. It is evident that the plaintiff did not suffer any fracture from the X-ray report, but just a soft tissue injury. On the evidence, exhibit U which was issued on 13 December 1997 cannot be relied on now, as admitted by the doctor. I agree with learned counsel for the appellant that a final medical report was necessary in the circumstances. It would certainly have been of immense assistance to the court in assessing the present degree of permanent incapacity, if any, and therefore the appropriate quantum of general damages. The plaintiff now obviously walks without the aid of a walking stick.

Thus, there was no proper basis for awarding an amount of ¢40 million as general damages for the plaintiff three years on. There is no doubt that the plaintiff did suffer some damages, especially when there was no proper analysis or evaluation of the relevant evidence. That notwithstanding, it is my considered view that the award of ¢40 million is excessive and patently disproportionate to the damage suffered by the plaintiff.

It goes without saying that a plaintiff who has suffered personal injury (which includes disease and mental impairment) is entitled to damages for “pain and suffering.” This head of damages appears to be rather subjective, based on that which the plaintiff is aware of. Periods of unconsciousness for example cannot be taken into account; the severity of the injury is quite relevant. In my view this is not confined to physical pain and the plaintiff is

[p.249] of [1999-2000] 2 GLR 237 entitled to recover in respect of worry attributable to his condition and treatment. The current conservative judicial climate in Ghana seems to have repelled some attempts at expansion of this sort of tort liability and the consequential damages. However, I consider that in an appropriate case the plaintiff may recover for loss of general enjoyment consequent upon the injury, based on the perception of what is fair in the circumstances. In this case, the plaintiff states that as a result of the accident he sustained injuries; he could not walk without the aid of a walking stick at the time, adding that but for the walking stick he would have injured his genitals. Of course, that is purely speculative and cannot be taken into account.

The plaintiff did say that the accident took place on Friday evening. He could not sleep that night. His left leg was swollen. He went to the Central Hospital the next day. He could not put on shoes, he said. Nor could he sit down or get up without difficulty or pain. For pain and suffering, loss of general enjoyment and amenities, as well as loss of the pleasures of life, I award ¢7 million. Even those who link responsibility with fault as an abstract principle would agree that once the threshold of liability is crossed, claim for loss of earnings (as other claims) in inevitable where applicable. The plaintiff is entitled to compensation for this head at the rate of his actual earnings even if they are far in excess of the average; and foreseeability has nothing to do with this, for the defendant takes his victim as he finds him in this respect.

Damages may even be awarded for loss of earning capacity. The plaintiff’s evidence was that the first three months after the accident he could not pursue his work or calling and lost his earnings as a result, saying he was a public relations consultant. According to the plaintiff he earned between ¢2 million and ¢3 million per month. He was vehemently challenged, though in cross-examination, to produce evidence (such as tax returns) in support of his claim, but he was unable or unwilling to do so, although he vigorously stuck to his guns. However, the fact that he was at the material time a working public relations officer was not challenged. In the circumstances, I think it will not be unreasonable to award an average figure of ¢1,500,000 a month during the three-month period of incapacity, thus making a total of ¢4,500,000 for loss of earnings.

There is a plethora of authority to the effect that special damages must be proved strictly in accordance with the rules.

[p.250] of [1999-2000] 2 GLR 237

However, in the case of Yirenkyi v Tarzan International Transport [1962] 1 GLR 75 at 76, it was held in (holding (4)), per Ollenu J (as he then was) that “where a plaintiff fails to prove the special damage claimed his action should not be dismissed; the court should award him nominal damages on an arbitrary basis.” It is evident that the plaintiff’s injury was caused by, or as a result of, the defendant’s negligence which necessitated medical attention. Norgbey v Asante [1992] 1 GLR 506 (holding (2)) is authority for the proposition that:

“. . . he who created a dangerous situation was not permitted to be critical of the conduct of those he had caused harm to a result of his dangerous act. It lay ill in the mouth of such an offender to allege that the victim should have acted in a certain way . . . since the conduct of the defendant was very grave and dangerous, it did not lie in their mouth to rely on the provisions of section 92 of the Highway Code, 1974 to complain that the first plaintiff did not slow down in the dangerous situation created by the first defendant and thereby avoid their liability in negligence to the plaintiff.”

It seems to me that this is precisely what the defendant in the instant case sought unsuccessfully to do.

Nevertheless, that does not absolve the plaintiff from proving the special damages as claimed. The judge awarded ¢671,600 by way of special damages. The plaintiff said he paid ¢5,000 on his first visit to the hospital. The plaintiff testified thus:

“The doctor treated me and prescribed drugs for me. I have in my hand the medical reports issued to me by the doctor. I incurred medical expenses as a result of the accident. I have some of the receipts here. I wish to tender them in evidence (tendered as exhibits A to A7.) I paid ¢5,000 for the Central Regional Hospital card (exhibit B).”

From the record, the only expenses in respect of which incontrovertible evidence was offered, were the following:

(1) Exhibit A = ¢105,000

(2) Exhibit Al = ¢144,200

(3) Exhibit A2 = ¢144,200

(4) Exhibit A3 = ¢144,200

(5) Exhibit A4 = ¢3,000

(6) Exhibit A5 = ¢8,000

[p.251] of [1999-2000] 2 GLR 237

(7) Exhibit A6 = ¢14,000

(8) Exhibit A7 = ¢144,200

= ¢707,600

(9) Medical Card = ¢5,000

Total ¢712,600

I am regretfully unable to find any evidence in support of the other heads of special damage claims, such as for prescribed drugs, medical reports, medical expenses, transport to and from the hospital, etc. Be that as it may, in accordance with the principles enunciated above, I would award arbitrary nominal damages of ¢300,000 rather than dismiss those claims altogether as they are not unrealistic.

As the appeal is by way of re-hearing (rule 8 (1) of the Court of Appeal Rules, 1997 (CI 19)) and in view of the fact that there is also an appeal against the award of damages, the court can review the issue of special damages. The quantum of special damages will therefore be fixed at ¢1,012.600 made up of the ¢712,600 medical expenses and ¢300,000 arbitrary nominal damages in respect of the miscellaneous or incidental expenses. It would be conceptually difficult to justify any other approach that would yield just results.

In conclusion, for the reasons already given, grounds (1) and (2) of this appeal (as regards liability) are hereby dismissed and the judgment of the trial High Court, Cape Coast, delivered on Friday, 16 June 2000, is hereby affirmed. The appeal succeeds in relation to the third ground on the quantum of damages and is upheld accordingly. That portion of the judgment of the said trial court in connection with the award of damages is hereby set aside and the following judgment substituted therefore, that is to say:

(1) For pain and suffering, loss of general enjoyment and amenities and } loss of pleasures of life which in my view are inseparable } ¢7,000,000 (2) Loss of earnings for the three-month period } ¢4,500,000 Thus making a total general damages of ¢11,500,000 (3) Special damages as above ¢1,012,600 ¢12,512,600

[p.252] of [1999-2000] 2 GLR 237 The plaintiffs is to recover this amount from the defendant authority. Afreh JA. I agree Gbadegbe JA. I also agree Appeal allowed in part.

SA