HIGH COURT, SEKONDI
Date: 5 JUNE 1975
EDUSEI J
CASES REFERRED TO
(1) Mersey Docks and Harbour Board v. Coggins & Griffith (Liverpool) Ltd. [1947] A.C. 1 ; [1946] 2 All E. R. 345; 115 L.J. K.B. 465; 175 L.T. 270; 62 T.L.R. 533; 90 S.J. 466, H.L.
(2) Abu-Jaoudeh v. Puplampu, Court of Appeal, 23 February 1970, unreported; digested in (1970) C.C. 38.
(3) Davies v. Powell Duffryn Associated Collieries Ltd. [1942] A.C. 601; [1942] 1 All E.R. 657; 111 L.J.K.B. 418; 167 L.T. 74; 58 T.L.R. 240; 86 S.J. 294, H.L.
NATURE OF PROCEEDINGS
Action for damages under the Civil Liability Act, 1963 (Act 176). The facts are sufficiently set out in the judgment.
COUNSEL
Forson for the plaintiffs.
De Graft Aidoo for the first defendants.
Sekyi-Hughes for the second defendants.
JUDGMENT OF EDUSEI J.
The plaintiffs are claiming damages against the defendants for the negligence of one Peter Kwasi Nyamekye who at the time of the accident was driving a timber truck No. GK 544. The plaintiffs originally sued out a writ against the first defendants who were the owners of vehicle No. GK 544, but in view of their statement of defence, the plaintiffs thought it desirable to join the second defendants to the suit.
The facts of the case as revealed by the evidence are that Peter Kwasi Nyamekye was the driver of the timber truck No. GK 544, and was driving it on 12 September 1973 from Sekondi towards Takoradi. It must be understood that at that time Ghana had not changed over to the right-hand traffic, i.e. traffic in this country at the time was on the left-hand side of the road. As the driver neared the Household Utilities Manufacturing Company’s factory, popularly known as the Chinese factory, the
[p.454] of [1975] 2 GLR 452
driver of timber truck No. GK 544, in an attempt to overtake another timber truck in front of him, came into the lane of a passenger lorry No. GJ 3130, which was coming from the opposite direction. The driver of the passenger lorry No. GJ 3130, in order to avoid a head-on collision, left the tarred portion of the road and went further on his nearside on to the untarred portion of the road. But the driver of the timber truck No. GK 544, drove straight into the passenger lorry No. GJ 3130 and tore a portion of passenger lorry No. GJ 3130. Awudu Karimu and Adjoa Essen, who were passengers in the passenger lorry No. GJ 3130, died. This is the evidence of the plaintiffs’ first witness who was in the front seat with the driver of lorry No. GJ 3130 and saw clearly what happened on that fateful day. I accept his evidence. In fact the statement of Peter Kwasi Nyamekye which he made immediately after the accident to the police shows that he was negligent. I do not believe his evidence concerning the issue of negligence because it was an afterthought. In any case I prefer the evidence of the plaintiffs’ first witness to that of P. K. Nyamekye, the defendants’ second witness. I find on the evidence therefore that Peter Kwasi Nyamekye, driver of timber truck No. GK 544, was negligent.
Now the main issue which was hotly contested in this case was whether Peter Kwasi Nyamekye, the driver of timber truck No. GK 544, was the servant of the first defendants or the second defendants. There is no dispute that the timber truck No. GK 544 had been hired out to the second defendants by the first defendants at the time of the accident on 12 September 1973. Both parties contended that Peter Kwasi Nyamekye was the servant of the other. The evidence is that the timber truck was hired out by the first defendants to the second defendants on 1 May 1973 and a written agreement was entered into. This is exhibit 2. The first defendants contended through Arthur, their representative, that the second defendants paid the wages of the driver, Peter Kwasi Nyamekye, and this had support from the driver himself, the defendants’ second witness, but he admitted that he was employed by the first defendants: see exhibit 3
(2). However in his evidence he stated that he was employed by the second defendants. I do not believe him. The second defendants, through their managing director, Cudjoe, admitted that they paid the monthly wages of Peter Kwasi Nyamekye but the first defendants also made refunds to them through Carlo De Vigili, the general manager of the first defendants. The second defendants’ managing director stated that he was exporting logs to the first defendants’ principals overseas and he therefore approached Carlo De Vigili, general manager of the first defendants, for equipment. He supplied him with a tractor and the timber truck No. GK 544 which were hired out to him. He said that the driver, Peter Kwasi Nyamekye, was employed by the first defendants though it was he who introduced him to Carlo De Vigili at his office in Takoradi. The logs when they arrived at Takoradi were inspected by the first defendants for quality before export.
Again there is evidence also that the first defendants, owners of timber truck No. GK 544, took out a policy of insurance in respect of the truck in
[p.455] of [1975] 2 GLR 452
which the named driver in the proposal form was Peter Kwasi Nyamekye and the proposal form was signed by the insured, the first defendants. This is the evidence of the defendants’ third witness, Mr. Akoto Bamfo, the legal adviser to the insurers of timber truck No. GK 544. Again there is the evidence that the first defendants, through Carlo De Vigili, instructed P. K. Nyamekye where to park the truck when it was not on the road. This is the evidence of Cudjoe, the first defendants’ representative. There was no evidence from Carlo De Vigili to contradict this. Having regard to the statement of Peter Kwasi Nyamekye contained in exhibit 3 (2) which was made ante litem motam, I find it difficult to accept his evidence which cannot be true. If, indeed, Peter Kwasi Nyamekye was employed by the second defendants, what was the purpose or the need for stating in exhibits 1 and 2 that the second defendants should be responsible for the payment of the driver’s wages? I can only think that this payment of wages by the second defendants was put in the agreements as a matter of convenience and the evidence that refunds were later made to the second defendants by Carlo De Vigili has not been rebutted. On the evidence I find that Peter Kwasi Nyamekye was employed by the first defendants.
At the time Peter Kwasi Nyamekye was employed, John Kingsley Arthur, the first defendants’ representative, was not in the employment of the first defendants. In fact he could not answer several questions put to him in cross-examination, and he added that Mr. Carlo De Vigili would be the proper person to answer those questions. His evidence is unsatisfactory and unreliable. It is strange that though this man, Carlo De Vigili, was available to give evidence, and from the evidence on record he had personal knowledge of some important facts which emerged at the trial and which would have assisted the court to decide whether or not Peter Kwasi Nyamekye was the servant of the first defendants, he did not give evidence.
In this case the timber truck was hired out with the driver, Peter Kwasi Nyamekye, to the second defendants and the latter had no control over the manner in which the timber truck was driven. It is admitted that the second defendants were entitled to tell the driver where to go to cart logs to Takoradi, but this did not make the second defendants his employers. Prima facie Peter Kwasi Nyamekye was the servant of the first defendants when he was driving the timber truck No. GK 544. But it is always open to the general employer, like the first defendants, to show that he temporarily transferred the services of the servant to another person so as to constitute him pro hac vice the servant of that other person with consequent liability for his negligent acts. In driving the timber truck, which was the property of the first defendants, he was acting as a servant of the B.I.O. Ltd., the first defendants, and not as a servant of Abotar Timber Co., Ltd., the second defendants: see Mersey Docks & Harbour Board v. Coggins & Griffith (Liverpool), Ltd. [1947] A.C. 1, H.L. This heavy burden that rested on the first defendants has not been discharged. I think that the failure of Carlo De Vigili to give evidence has made the discharge of the burden almost impossible on the part of the first defendants.
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I do not think that the existence of the contract, exhibit 1, effects any change in the master-servant relationship. It does not state that P. K. Nyamekye should become the servant of the second defendant vis-a-vis plaintiffs.
Exhibit 2, also an agreement, was made between the two defendants on 17 September 1973, five days after the incident and the fact that it was stipulated therein to take retrospective effect cannot change the factual situation that existed on 12 September 1973. In it also there was no stipulation that Peter Kwasi Nyamekye was to become the servant of the second defendants. In any event, a contract of this kind cannot affect the plaintiffs whose claims lie in tort, though I realise that in certain cases it may determine the liability of the employers inter se. It may, of course, also indirectly have some bearing upon the determination of the master-servant relationship on a particular occasion when the general employer has transferred his servant’s services to a temporary master. Learned counsel for the first defendants referred me to the case of Abu-Jaoudeh v. Puplampu, Court of Appeal, 23 February 1970, unreported; digested in (1970) C.C. 38 and submitted that the second defendants were liable on the ground that they were in effective control of the timber truck No. GK 544, and that it was immaterial whether Peter Kwasi Nyamekye was their servant or not. I do not see how the second defendants could be in effective control of vehicle No. GK 544 when ultimately the wages of its driver were paid by the first defendants. The evidence of the second defendants’ representative, Mr. Cudjoe, which I accept in the absence of any evidence from Carlo De Vigili, was that the wages paid by the second defendants to the driver of truck No. GK 544 were refunded at the end of each month by the first defendants. The vehicle No. GK 544 was also insured by the first defendants and not by the second defendants. In the case cited to me above, the person to whom the vehicle was hired paid the wages of the driver of the vehicle and he also insured the vehicle. This was not so in this case. Clearly, the Abu-Jaoudeh case is distinguishable from the instant case. As already stated the general employers, the first defendants, whose servant Peter Kwasi Nyamekye was at the time of the accident, have not been able to discharge the burden of proof that he became the servant of the second defendants at the material time. The first defendants therefore are vicariously liable for the negligence of their servant, Peter Kwasi Nyamekye.
I now come to consider the question of damages. I shall deal with the case of the second plaintiff first. This plaintiff s sister, Madam Adwoa Essuon, left behind four children, namely Kobina Boham, aged fourteen years, Kofi Mankebe, seven years, Kofi Konde, five years and Kwamina Dadzieasa aged three years. The second plaintiff, Madam Ekua Mansah says that since the death of her sister, Adwoa Essuon, she has been responsible for the upkeep and welfare of these four children of her sister. The evidence shows that the deceased was a trader in cassava and corn and was making a monthly net profit of about 100.00, though on occasions the monthly profit exceeded this figure. Be that as it may, taking the 100.00 per month it means that the deceased was making about
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1,200.00 a year net profit. But unfortunately there is no evidence of the age of Adwoa Essuon, nor is it stated in the pleadings. There is neither any information whether Adwoa Essuon was a young woman nor a woman in her middle age when she died. This serious omission makes the work of the court more difficult since the assessment of damages is in itself always a complex duty for the court. There is evidence, however, that the deceased was caring for her children. It is true that her four children were dependent on her but I have no information of her age. I must confess that I am in a dilemma. But the second plaintiff must have damages for the dependants of Adwoa Essuon, and so I shall do my best, and it is only my best that I can do in the face of this insufficient evidence.
In view of the tender ages of her children I think I shall not be far from wrong if I say that the deceased was a young woman, though I am aware that women past their middle age can bring forth children, but this is the exception rather than the rule. I have to take into account the changes and chances of this fleeting world, and the possibility that the deceased might have fallen a victim to some disease and therefore become incapable of earning a living, or some of her children might have predeceased her by drowning since they lived at the coastal town of Shama, and children delight in bathing in the sea or playing at the seashore. One important fact that I have to keep in mind, however, is that these children have lost something like 0100.00 per month though I know it will be less than this figure since their deceased mother fed and clothed herself from this sum also. These children, apart from Kobina Boham, are very tender in age. Their future is full of uncertainties because the world itself is uncertain.
In awarding any sum it is encumbent on me to make some discount on the ground that the dependants are getting a lump sum and will be able to enjoy the interest on it. But I must also not lose sight of the fact of depreciation in the purchasing power of the cedi in recent years. It is common knowledge that the purchasing power of the cedi has fallen considerably hence the recent increases in salaries and wages of workers in regular employment in this country. Even some still complain that they find it difficult to make ends meet. All this reinforces the view that the purchasing power of the cedi is very low indeed. Taking all these matters into consideration, and remember, I am only doing my best in a difficult exercise,
I shall award the second plaintiff the sum of 04,100.00 for the young dependants of Adwoa Essuon. In compliance with the provisions of section 18 (17) of the Civil Liability Act, 1963 (Act 176), I make the apportionment of the total sum as follows:
0
(1) Kobina Boham ……………. 600.00
(2) Kofi Mankebe ……………. 1,000.00
(3) Kofi Konde……………….. 1,250.00
(4) Kwamina Dadzieasa ………… 1,250.00
4,100.00
[p.458] of [1975] 2 GLR 452
I order that one-half of the sum of each child be deposited in a savings account which will be a trustee account since they are infants and this should be with the Ghana Commercial Bank, Sekondi. I shall award this second plaintiff costs of 150.00 against the first defendants.
It is the turn of the first plaintiff. The deceased, Awudu Karimu, died in the accident, aged 37 years, but there is no evidence of his income. The first plaintiff, who is the brother of Awudu Karimu, says that since the latter’s death, he has assumed the responsibility of looking after the seven children of his deceased brother. In the statement of claim, the ages of the children are given as follows:
(1) Bakia……………………………… 12 years
(2) Musah……………………………… 9 years
(3) Salamatu………………………….. 9 years
(4) Mohamadu………………………… 7 years
(5) Alhaji Mamudu……………………. 7 years
(6) Ama Safia…………………………… 6 years
(7) Ishatu……………………………….. 3 years
The first defendants did not specifically deny paragraph (9) of the statement of claim which contained the ages of the deceased, Awudu Karimu, and his seven children. Five of these children are attending Arabic school. The late Awudu Karimu also left behind two wives. The evidence also shows that he was a quarry owner and died possessed of two buildings. He was also a stone contractor. There is no evidence as to what has become of the quarry and the two buildings. In any case these two wives and their seven children have lost the means of their support, Awudu Karimu. The first plaintiff s evidence is that he gives each of the two wives 05 a day for food. I take this to mean that each wife spends 05 per day for herself and her children. I do not consider this to be an unreasonable sum for food if consideration is given to the high prices of foodstuffs now-a-days in the market. It is not unreasonable also to take this as the sum spent by the deceased for food for his two wives and seven children. It could have been more. If figures are anything to go by I can therefore say that Awudu Karimu was spending something of not less than 0300.00 a month on food to feed his two wives and seven children. Here too I am only conjecturing because there is no evidence that he actually spent this amount on food.
There is no evidence too as to his income, but judging from the amount he might have spent on food alone and the type of work he was doing (a stone contractor) it could have been very substantial indeed. It would not be far from wrong if I said that Awudu Karimu had the means to meet such an expenditure if reference is made to his quarry and also to the fact that he is a stone contractor. It is a well-known fact that stone contractors having their own quarry can be described as well-to-do persons. Again there is no evidence whether the first plaintiff or the children of the deceased have benefited from the estate of the deceased. I cannot therefore speculate on this. Having regard to the nature of his work perhaps I can say that there was the prospect of increase in his income but the exact amount cannot be quantified. This, of course, is also a problematical
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question. What I said in respect of the second plaintiff s case about the uncertainties of this world equally applies here. Awudu Karimu, for certain reasons, might have found it well-nigh impossible to care for his wives and children if he had lived. He might have lost some of his children through some unforeseen mishap, and possibly a wife too.
Any court considering the award of damages cannot overlook these changes and chances of this mortal life, and these matters are extremely complex for two judges may have diametrically opposed views on them. It is correct therefore to say that damages are always at large; but, I must try to do my best with the material available, however difficult the situation in which I find myself. But I should remind myself of what Lord Wright said in the case of Davies v. Powell Duffryn Associated Collieries Ltd. [1942] A.C. 601 at p. 617, H.L.:
“There is no question here of what may be called sentimental damage, bereavement or pain and suffering. It
is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities.”
Indeed, in our own setting it is a hard matter of cedis and pesewas, not forgetting that this earthly life is beset with uncertainties. Of course, the deceased, at the time he met his end through that fatal accident, was 37 years old and here again he might have lived up to 55 years or 60 years or even more. This again is a mere conjecture. However, the children are not earning anything; in fact five of them are at an Arabic school whilst two are at home in view of their very tender ages. The two widows have not re-married and their chances of re-marrying are not known and they and the children will continue to depend on the first plaintiff, but he cannot, I suppose, maintain them for all the time, and those who have deprived them of the source of dependency must shoulder that responsibility. Nevertheless, in all but the simplest claims under the Civil Liability Act, 1963 (Act 176), there are so many uncertain and imponderable elements that an accurate arithmetical approach is quite impossible, and yet the court cannot shirk its duty. It must do the best it can in the circumstances. Taking all the matters I have hitherto mentioned and keeping in mind the fall in the purchasing power of the cedi, I think a compensation of 012,250.00 is reasonable in the circumstances for the dependants the two widows and the seven children. I apportion this sum as
follows:
(1) Two Widows 02,000.00 each……………………..4,000.00
(2) Bakia……………………………………………………….750.00
(3) Musah……………………………………………………..1,000.00
(4) Salamatu………………………………………………….1,000.00
(5) Mohamadu……………………………………………….1,250.00
(6) Alhaji Mamudu…………………………………………1,250.00
(7) Ama Safia…………………………………………………1,250.00
(8) Ishatu………………………………………………………1,500.00
12,250.00
The order I made in respect of the damages for the infant children in the case of the second plaintiff equally applies to the infant dependants represented by the first plaintiff and his costs I assess at 0200.00 against the first defendants. In making the apportionment of damages between the widows and the children I proceeded on the following hypothesis:
“the practice is to award the greater part of the total to the widow, on the reasonable assumption that she will maintain the children so long as they are dependent, and to award comparatively small sums to the children. Usually, though not always, a younger child is awarded more than an older child because the period of expected dependency is greater.”
See: Quantum of Damages by Kemp & Kemp, Vol. 2 (2nd ed.) at p. 25, and the examples cited on the same page.
The plaintiffs’ case against the second defendants fails and it is accordingly dismissed with costs of 150.00 payable by the first defendants whose statement of defence compelled the plaintiffs to join them. In the result the plaintiffs will have judgment for 16,350.00 against the first defendants with costs of 350.00.
DECISION
Judgment against first defendant with costs.
L. F. A.
