HIGH COURT, ACCRA
Date: 25 JULY 1974
ABBAN J
CASES REFERRED TO
(1) Laurie v. Raglan Building Co., Ltd. [1942] 1 K.B. 152; [1941] 3 All E.R. 332; 111 L.J.K.B. 292; 166 L.T. 63; 86 S.J. 69, C.A.
(2) Silvera v. General Manager, Nigerian Railways (1952) 14 W.A. C.A. 93.
(3) Davies v. Swan Motor Co. (Swansea), Ltd. [1949] 2 K.B. 291; [1949] 1 All E.R. 620; 65 T.L.R. 278, C.A.
(4) Caswell v. Powell Duffryn Associated Collieries, Ltd. [1940] A.C. 152; [1939] 3 All E.R. 722; 108 L.J.K.B. 779; 161 L.T. 374; 55 T.L.R. 1004; 83 S.J. 976, H.L.
(5) Powell v. Phillips [1972] 3 All E.R. 864; [1973] R.T.C. 19, C.A.
NATURE OF PROCEEDINGS
ACTION by the plaintiff for damages for personal injuries sustained when he was knocked down by a car driven by the second defendant, the first defendant’s servant. The facts are sufficiently set out in the judgment.
COUNSEL
K.S. P. Jantuah for the plaintiff.
J. Allotei-Cofie for the defendants.
JUDGMENT OF ABBAN J
This is a running down case and the plaintiff is claiming damages for the physical injuries which he sustained in the accident.
It may be noted that judgment in default of appearance was entered for the plaintiff by Griffiths-Randolph J. and damages were assessed and awarded against the defendants on 30 April 1973. But on the application of the defendants, the learned judge on 30 May 1973, set aside his said judgment. The defendants were then granted leave to enter appearance and file their defence out of time; and at the summons for directions stage the said learned judge ordered that the case should be heard by another judge.
On 15 May 1972, the plaintiff walked along Kimbu Road, Accra, from the direction of the Ministries towards the head office of the State Insurance Corporation which was the plaintiff s destination. The plaintiff said the pavement on his left-hand side of the road, facing the direction of the State Insurance Corporation, was at that time very crowded. People
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were selling on it, and it was impossible for pedestrians to walk on that pavement. The plaintiff therefore walked in the roadway about two feet from the edge of the said pavement. The plaintiff was going to transact some business at the head office of the State Insurance Corporation and was in the company of one Mr. Ohene. Mr. Ohene was also walking in the roadway but at some distance in front of the plaintiff. When the plaintiff got to the entrance of the Public Works Department yard which was near the said road, a car came from behind and ran into the plaintiff.
The plaintiff fell down and as a result he sustained serious head injuries. He became unconscious and was rushed to the Korle Bu Teaching Hospital where he was admitted. The plaintiff alleged that before he was knocked down by the car, he was walking straight and did not attempt to cross the road. He did not also hear any noise which indicated that a car was applying its brakes, neither did the driver of the said car blow his horn.
The second defendant was the driver of the vehicle in question. In his evidence, the second defendant said at the material time he was the servant of the first defendant and that he had been sent by the first defendant to convey certain persons from the State House to the Accra lorry park near Kimbu Road. Those persons were going to buy food at the said lorry park and the second defendant had been instructed to take them back to the State House after they had bought the food in question. The second defendant averred that while driving along Kimbu Road and before he reached the lorry park, he heard a noise coming from the left front door of the car. The second defendant stopped; and as a result of what he was told by the person who was sitting near the second defendant in the front seat, the second defendant alighted from the car. He then saw the plaintiff lying on the road just at the junction near the Public Works Department entrance. With the help of those in the car, the plaintiff was lifted into the second defendant’s car and was sent to the Korle Bu Teaching Hospital.
The second defendant then reported the accident to the Motor Traffic Unit which was not far from the scene of the accident; and a police constable, called John Addae, was detailed to go along with the second defendant to take measurements and to investigate the circumstances of the accident. Eventually, the second defendant was charged with careless driving and negligently causing harm. He was prosecuted before the district court but was acquitted and discharged. The second defendant denied negligence on his part and contended that he drove seven feet eight inches from the edge of the gutter on his left-hand side of the road, facing the direction of the head office of the State Insurance Corporation.
At the time the second defendant went to the scene with the police constable, the plaintiff was still unconscious in the Korle Bu Teaching Hospital. When later the plaintiff was discharged from the hospital the plaintiff also went to the scene with the same constable. The plaintiff pointed out to the constable the spot where he was knocked down. The constable took measurements and prepared the sketch based on what he was told by the parties. The sketch was tendered in evidence during the
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criminal prosecution of the second defendant. The constable gave evidence for the plaintiff in the present proceedings, but he did not tender the sketch. He said despite the diligent search made by him in the police station and in the registry of the district court where the second defendant was prosecuted, he could not trace it.
Apart from the denial of negligence the defendants pleaded contributory negligence, the particulars of which were stated in paragraph (2) of their statement of defence. I will here set them out:
“(2) Further or in the alternative the second defendant says that even if the plaintiff was knocked down by the said vehicle the accident was wholly caused and/or contributed to by the negligence of the plaintiff.
Particulars of Negligence
(i) Failing to pay any or any sufficient heed to an approaching vehicle.
(ii) Failing to keep any or any proper lookout or to have any or any sufficient regard for traffic on the said road.
(iii) Stepping suddenly onto the road and/or into traffic without any or any sufficient signal or warning to approaching vehicle.
(iv) Crossing a lorry road when it was unsafe so to do.”
It should be observed that the first defendant did not give evidence, but at the close of the evidence of the second defendant, Mr. Allotei-Cofie, who appeared for all the defendants, indicated to the court that the first defendant was adopting and relying on whatever evidence or defence the second defendant had given or set up in the proceedings. The first defendant did not also dispute that the second defendant, at the relevant time, was the servant of the first defendant. In the circumstances, I find that at the time of the accident the first defendant was the owner of the car, and that the second defendant was driving the said car as the servant of the first defendant and with the consent and the permission of the first defendant. I also find that it was in the course of discharging his duties as the servant of the first defendant that the second defendant ran into the plaintiff.
I think the following are the only important issues in the case:
(a) Whether or not the second defendant was wholly responsible for the accident and if not; and
(b) Whether or not the plaintiff contributed in any way to the accident.
The accident occurred on a highway. The plaintiff was knocked down in the roadway, and the second defendant said before he ran the plaintiff down, he did not see the plaintiff even though the second defendant, according to him, was travelling at the rate of fifteen to twenty miles per hour, and was all the time paying proper attention to his driving. In the circumstances of this case, I think the conditions and the use of this particular highway, the amount of traffic which was on it or expected to be on
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it, and the rate at which the second defendant was travelling, should be the material factors in deciding whether or not the second defendant was negligent.
Thus, whether the rate of fifteen to twenty miles per hour at which the second defendant travelled was reasonable or not depended on the conditions of the road and the circumstances of the occasion. In Laurie v. Raglan Building Co., Ltd. [1942] 1 K.B. 152, C.A. the driver of a heavily laden vehicle was driving at the rate of ten to twelve miles per hour in daylight and on a well-made road which had been rendered dangerous by being covered with frozen snow. The vehicle skidded and killed the plaintiff s husband who was on or near the pavement. It was held, inter alia, that on the evidence the skid was in fact due to negligence, because even though the road was in an extremely dangerous condition and the surface like glass, yet the heavily laden vehicle was driven at ten to twelve miles per hour without chains and the plaintiff was entitled to succeed. Lord Green M.R. at p. 154 said:
“If roads are in such a condition that a motor car cannot safely proceed at all, it is the duty of the driver of the motor car to stop. If the roads are in such a condition that it is not safe to go at more than a foot pace, his duty is to proceed at a foot’s pace. The evidence here shows clearly that the road was in such a condition that a prudent driver, even if he did not find it necessary to stop, would have proceeded at a very much slower speed. I, therefore, think that, not only did the fact that part of the lorry swept across the pavement raise a prima facie case to be answered, but also that the evidence was sufficient to call for an answer even if there had been no such prima facie case of negligence.”
(The emphasis is mine.)
In the present case, I find that Kimbu Road where the accident occurred was a very, busy highway. The traffic on it at the time was very heavy indeed. The pavement on the left-hand side of the road, facing the direction of the lorry park which was the second defendant’s destination, had been occupied by traders some of whom had displayed their wares on the pavement and were busily selling to customers. The pavement had therefore been so crowded that pedestrians were compelled to walk in the roadway near the said pavement. The evidence of John Addae, the police constable, whom the second defendant took to the spot immediately after the accident, confirmed this. In his evidence, during re-examination, John Addae said: “When I went to the scene with the second defendant, the pavement on the left side of the road facing Motor Traffic Unit direction was crowded with people selling and so people were using the road just near the gutter.” In my considered opinion, the condition of the pavement which forced pedestrians to walk in the roadway created a very dangerous situation on the highway and the second defendant was perfectly aware of that danger. The accident happened at lunch time when a lot of people were walking about; and having regard to the dangerous condition of the highway which I have referred to, I am of the view that it
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was not reasonable, in the circumstances, for the second defendant to proceed at the rate of fifteen to twenty miles per hour as alleged by him.
I am convinced, however, that on the day in question the second defendant drove at more than twenty miles per hour on that highway. The second defendant was to take those persons in his car to the lorry park near the said Kimbu Road to buy lunch; and he was to drive them back to the State House before 1.30 p.m. The time was 12.45 so that he had practically 45 minutes to do the whole journey in and out. Having regard to the heavy traffic during that hour of the day and the several traffic lights along the route, and at which traffic lights the second defendant would have to stop and wait when the red light was on, the 45 minutes at the second defendant’s disposal were not at all sufficient for the said journey. To beat the time, the second defendant had to rush and indeed he was rushing at an excessive speed at the time of the accident. He drove at such a terrific speed that he did not even see the plaintiff in the roadway. Under cross-examination the second defendant said: “We were two sitting in the front seat. When I was driving, I was not conversing with that person. I did not see the plaintiff at all before the accident . . . The plaintiff is a white man. I did not see him by the gutter and I did not see him walking by the road.”
I find this rather strange. The second defendant was not driving a big or heavy vehicle which was difficult to manage. He was driving a comparatively small car, an Opel Cadet 1300, on a straight road and in broad daylight. There was no evidence that his view was in any way obscured by the traffic in front of him; neither was there any evidence that the plaintiff stepped suddenly into the roadway. To my mind, if on a clear day a driver, with good eyesight and with his view not in any way obscured, knocks down a pedestrian on a straight road without seeing the said pedestrian, then that is strong prima facie evidence that he was either not keeping a sufficient lookout or that he was driving too fast, having regard to the limited lookout that could be kept.
The second defendant further contended that he drove more than seven feet away from the gutter which was on his near side of the road; but I find that that was not the case. He drove just about two and a half feet from the gutter, and the plaintiff was at that time walking the same distance of two and a half feet from the said gutter. The width of the highway was 29 feet, and the second defendant could safely have driven his Opel Cadet 1300 at a considerable distance (and at least more than two and a half feet) from the edge of the gutter and would still have kept well to the left of the roadway; but he failed to do so. He chose to proceed at an excessive speed and so close to the said gutter, knowing very well that pedestrians had, at that time, been forced by the condition of the pavement to walk in the roadway near that gutter. In my view, the second defendant did not, on the said day, exercise reasonable care and diligence. I am therefore satisfied that he was negligent and that his negligence was the cause of the injuries which the plaintiff suffered.
The defendants pleaded contributory negligence, the details of which I have already set out above. It must be pointed out that the issue of
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contributory negligence having been raised by the defendants as an issue essential to the success of their case, the burden of proving that issue lay upon them as a rule of law. That is, the defendants assumed the onus of proving that the plaintiff did not, in his own interest, take reasonable care of himself and contributed by his want of care to his own injuries.
Unfortunately, the defendants did not lead a scintilla of evidence to substantiate any of the particulars of contributory negligence which they set out in their paragraph (2) of the statement of defence. Mr. Allotei-Cofie while cross-examining the plaintiff suggested to the plaintiff that it was the plaintiff “who suddenly dashed into the lane of traffic of the vehicle” and knocked himself against the car. The suggestion was denied by the plaintiff. The second defendant in his evidence did not pursue that line of cross-examination adopted by his counsel. When he was giving his evidence, the second defendant did not even bother to repeat the averment in the said paragraph (2) of the statement of defence. All that the second defendant could say was that he did not see the plaintiff at all on the road, and he never knew how the accident happened. I did not therefore understand why the defendants should suggest in their pleading that the plaintiff “stepped unexpectedly into traffic” and attempted to cross the road when it was unsafe to do so.” Those averments obviously were false. The plaintiff was in no way to blame for the occurrence of the accident.
Mr. Allotei-Cofie, in his address, contended that it was contrary to the Highway Code or the Road Traffic Regulation, 1970 (L.T. 675), for the plaintiff to leave the pavement, and then walk in the roadway with his back to traffic. Counsel also contended that if the pavement on the left-hand side of the road was crowded, as alleged by the plaintiff, then the plaintiff ought to have crossed to the pavement on the right-hand side of the road which, on the evidence, was free at the material time. Counsel submitted that the plaintiff ‘s breach of the Highway Code and his failure to walk on the pavement contributed to the accident and that the plaintiff must be found guilty of contributory negligence. Counsel referred the court to the judgment of the West African Court of Appeal in Silvera v. General Manager, Nigerian Railways (1952) 14 W.A.C.A. 93.
I should make it clear that since I have found that the negligence of the second defendant was throughout the continuing cause of the accident, the case of Silvera v. General Manager, Nigerian Railways (supra) cannot be relied upon by the defendants. In Silvera’s case, the accident happened at a railway level crossing. There was a large wooden signboard placed parallel to the railway lines and the main road, with the inscription, “STOP DANGEROUS LEVEL CROSSING.” The plaintiff admitted that he knew of the existence of that sign and he had passed over that level crossing on many occasions and was conversant with it. But on that particular occasion when the accident occurred, it was dark, about 7.30 p.m.; and the plaintiff said when he was approaching the level crossing he slowed down and “looked and saw nothing and proceeded to crawl over the crossing” without stopping, as was required of him. Unknown to the plaintiff, a goods train with no electric lights but a kerosene lamp on it, was moving slowly down the lines. Because of the tall
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grass along the railway lines, the light from the kerosene lamp was not visible.
While the plaintiff s car was passing over the crossing, the car was struck by the engine of the goods train and carried some distance down the railway line. The fireman and the engine driver did not see the plaintiff ‘s car on the crossing, and the engine driver did not blow his whistle while approaching the level crossing. The plaintiff s action against the Railways for damages for negligence failed. On appeal, the West African Court of Appeal, affirming the decision of the trial judge, held that the engine driver ought to have blown his whistle right up to the crossing as the light from the lamp was not visible from a reasonable distance. But the fact remained that it was the plaintiff ‘s own failure to take the reasonable care of stopping at what he knew was a dangerous crossing which resulted in the accident. In other words, it was clear in that case that both the engine driver and the plaintiff were to blame, but the court found that it was the negligence of the plaintiff (and not that of the engine driver) which caused the injuries and damage suffered by the plaintiff.
In the present case, as I have held, the plaintiff was not in any way negligent; and even if he had been negligent, unlike the plaintiff in Silvera’s case, his negligence was never an operating factor in the accident. A pedestrian has a right to be on the highway and is entitled to the exercise of reasonable care on the part of the persons driving vehicles on it; and all that the pedestrian has to do is to take reasonable care of himself. The question therefore is not whether the plaintiff herein failed to abide by the Road Traffic Regulations, or neglected the provisions of the Highway Code, but whether in the circumstances of the present case the plaintiff acted in a responsible manner, and took reasonable care for his own safety by leaving the pavement and walking in the roadway. In Davies v. Swan Motor Co. (Swansea), Ltd. [1949] 2 K.B. 291, C.A., Denning L.J. (as he then was) at p. 324 said:
“When a man steps into the road he owes a duty to himself to take care for his own safety, but he does not owe any duty to a motorist who is going at an excessive speed to avoid being run down. Nevertheless, if he does not keep a good lookout, he is guilty of contributory negligence. The real question is not whether the plaintiff was neglecting some legal duty, but whether he was acting as a reasonable man with reasonable care.”
(The emphasis is mine.) See also Caswell v. Powell Duffryn Associated Collieries, Ltd. [1940] A.C. 152 at p. 164, H.L., which was referred to by Denning L.J. in his judgment in Davies’ case cited above.
Assuming for the purpose of argument that the plaintiff committed a breach of the provisions of the Highway Code, that alone could not by itself be conclusive evidence of contributory negligence. It is well established that a breach of any of the provisions of the Highway Code, does not create a presumption of negligence which calls for explanation; neither does it raise a presumption of negligence “making a real contribution to causing an accident.” Such a breach is merely one of the circumstances on
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which a party to the proceedings can rely to establish the negligence of the other: see Powell v. Phillips [1972] 3 All E.R. 864 at p. 868, C.A. It is significant to note that certain aspects of the present case seem to have similarity with the facts in Powell v. Phillips (supra). What is more, the same submissions (which learned counsel for the defendants put forward in the instant case were) made by learned counsel for the defendant appellant in Powell v. Phillips.
In Powell’s case the plaintiff, a girl of nineteen, walked along the left-hand side of a straight road which was about eighteen feet wide and the speed limit on that road was 30 miles per hour. The pavement on the left-hand side of the road had been covered with snow and slush. So the plaintiff stepped off it from time to time and walked in the roadway near the gutter. It was night and the road was poorly lit. Since the plaintiff was not wearing or carrying anything white, light-coloured or reflective and she was not on the right-hand side of the road facing on-coming traffic, she was in a clear breach of rules 1, 2 and 4 of the United Kingdom Highway Code: see the English Road Traffic Act, 1960, as amended.
While the plaintiff was walking in the roadway she was knocked down from behind by a vehicle travelling at 30 to 40 miles per hour and driven by the defendant. The defendant was sued for damages for negligent driving. The learned counsel who appeared for the defendant invited the trial court to find the plaintiff guilty of breaking the provisions of the Highway Code and thereby of contributory negligence. This invitation was declined and the defendant was held solely responsible for the accident. On appeal, the Court of Appeal (England) affirmed the decision of the trial judge. In the course of his judgment Stephenson L.J. held the view that the plaintiff was in breach of the rules of the Highway Code, but in law a breach of the Highway Code has a limited effect. At p. 868 of the report the learned judge said:
“It is, however, clear that a breach creates no presumption of negligence calling for an explanation, still less a presumption of negligence making a real contribution to causing an accident or injury. The breach is just one of the circumstances on which one party is entitled to rely in establishing the negligence of the other and its contribution to causing the accident or injury. Here it must be considered with all the other circumstances including the explanation given by Mr. Wakeman. It must not be elevated into a breach of statutory duty which gives a right of action to anyone who can prove that his injury resulted from it.
The perfect pedestrian would, I suppose, have crossed to the other side every time he found the left-hand pavement uncomfortable to walk on and, if he found the other pavement no better, would have walked in the roadway on the other side facing the traffic and carrying a lamp. But the question is not what was ideal but what was required by common sense; … More precisely, has the defendant proved that the plaintiff failed to take reasonable care for her own safety by leaving the pavement when it got too slushy in order to
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walk a few feet out in the road for a distance of about 20 yds. in a straight street in a built-up area with street lights on? My answer to that is an unhesitating ‘No’.”
The defendants herein having failed to prove contributory negligence on the part of the plaintiff, I hold that the negligence of the second defendant was the sole cause of the injuries which the plaintiff suffered, and that the defendants are liable to the plaintiff s claim.
I now come to the assessment of damages. The evidence of the surgeon, Mr. Mustapha, and the medical reports, exhibits A and B, showed that the plaintiff suffered the following injuries: laceration of occipital scalp and of the forehead, fracture of the base of the skull, and abrasions on the right elbow and thigh. The plaintiff was admitted in the hospital unconscious and he remained in that state for some hours. He was subjected to surgical operations. For ten days he was speechless due to cerebral affection. When he could speak, his speech was unintelligible and that condition continued for some days. He was in the hospital from 15 May to 6 June, when he was discharged as an in-patient; but he has continued to attend the hospital as an out-patient up to date.
Mr. Mustapha finally examined the plaintiff on 8 January 1974, and he found that the plaintiff has suffered the following permanent disabilities and disfigurement: permanent scars on the forehead, skull tenderness on compression, body tenderness in the shaft of the right clavicle and impairment of sense of smell and taste. In addition to these, the plaintiff now suffers from constant dizziness. There is also the possibility that he may, in future, be subject to epileptic attacks due to the nature of the head injuries. The evidence of Mr. Mustapha could not be shaken and I accept it. I find that as a result of the said injuries the plaintiff has suffered crippling handicaps and deterioration in his health, and he is painfully aware of how much he has lost. His permanent disability was assessed at 35 per cent.
On the consideration of the evidence as a whole, I will award the plaintiff 04,900.00 for pain and suffering. He has almost lost his sense of smell and taste with the result that he can hardly know the smell or the taste of what he eats. It is therefore clear that the plaintiff cannot enjoy his meals as he used to before the accident. Consequently, I will award him 0600.00 for loss of amenities.
I do not think I can make any award for loss of earnings. The plaintiff is a Bulgarian and for political reasons he escaped from that country, through East Germany, to West Germany. While in West Germany he sought and obtained political asylum in Greece. He later obtained New Zealand citizenship and went to work in New Zealand. He did not like the conditions in that country. So he returned to West Germany. It was in West Germany where the plaintiff met Mr. Ohene who was in the company of the plaintiff at the time of the accident. Mr. Ohene was supposed to be the managing proprietor of a company called Adonteng Industrial Agencies Ltd. Mr. Ohene agreed to employ the plaintiff for the company as a technical adviser; and in pursuance of that agreement the plaintiff came to Ghana.
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I need not recount the difficulties the plaintiff encountered with Mr. Ohene and that company ever since the plaintiff arrived in this country. Suffice it to say that the company could not pay the plaintiff the agreed monthly salary of 0700.00 or any portion thereof. The plaintiff s own money, which he invested in the so-called company, seemed to have been misappropriated by Mr. Ohene and the matter was then in the hands of the police. So that at the time of the accident the plaintiff s income was practically nil. It cannot therefore be said that the plaintiff lost income because of the said injuries.
In May 1973, while the present action was still pending the plaintiff was declared a refugee of the United Nations Organization, and he is now living in this country on the charity of that organization. There was also no evidence as to the plaintiff s future plans; that is, the type of work he intends to do in the future and whether the injuries he has sustained will have any adverse effect on his earning capacity. In the circumstances, I will make no award for loss of future earnings.
The plaintiff further claimed 022.00 as special damages. That amount represented his medical expenses and it must be allowed. I will therefore enter judgment for the plaintiff against the defendants, jointly and severally, for the sum of 05,522.00, with costs fixed at 0350.00 inclusive.
DECISION
Judgment for the plaintiff with costs.
S. E. K.
