COURT OF APPEAL, ACCRA
Date: 20 JANUARY 1975
APALOO ANIN AND KINGSLEY-NYINAH JJA
CASES REFERRED TO
(1) Ayiwa v. Badu [1963] 1 G.L.R. 86, S.C.
(2) Republic v. Asafu-Adjaye (No. 2), Court of Appeal, 1 July 1968, unreported; digested in (1968) C.C. 106.
(3) Commissioner of Police v. Kwashie (1953) 14 W.A.C.A. 319.
(4) Majolagbe v. Larbi [1959] G.L.R. 190.
(5) Khoury v. Richter, High Court, 8 December 1958, unreported.
(6) Hummerstone v. Leary [1921] 2 K.B. 664; 90 L.J.K.B. 1148; 125 L.T. 669; 37 T.L.R. 711; 65 S.J. 606.
(7) Baker v. Market Harborough Co-operative Society; Wallace v. Richards (Leicester) [1953] 1 W.L.R. 1472; 97 S.J. 861, C.A.
NATURE OF PROCEEDINGS
APPEAL from a circuit court judgment dismissing the plaintiff s action for damages for personal injuries. The facts are sufficiently set out in the judgment of Apaloo J.A.
COUNSEL
Owusu Bempah for the appellant.
Sotomey (Appiah with him) for the respondents.
JUDGMENT OF APALOO J.A.
At about 6.30 p.m. on 20 September 1970, a head-on collision took place between an Opel saloon car and a timber truck on the Konongo-Agogo road. The accident occurred in a bend and proved fatal. Both drivers died from injuries they received from the accident. The timber truck was then carrying a number of logs. Besides the appellant and the driver, two other persons rode in the Opel car.
The appellant, who I shall hereafter call the plaintiff, was then sitting by the driver of the Opel car and sustained fairly serious injuries. He accordingly instituted an action in the circuit court to recover damages for his injuries. He based himself on the fact that the deceased driver of the timber truck, who was the defendants’ servant, was negligent. He said that at about 6.30 p.m. while their car was in a bend from Juansa en route to Konongo, the timber truck suddenly emerged. It was travelling in their lane and drove into the Opel car. The defendants’ version of the accident seems to have been that the collision occurred because the Opel car was travelling at such great speed that the driver lost control and drove into the trailer of the timber truck. The plaintiff denied this.
In addition to giving an eyewitness account of how the accident occurred, the plaintiff also gave evidence of his loss of income and produced medical evidence of his injuries. In this, he was supported by a doctor who examined him some time after the accident. The defendants elected not to give evidence. The result of this was that the only account of how the accident occurred was what the plaintiff narrated. If this was accepted, there can be no question that the defendants’ driver was solely to blame.
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The learned circuit judge, his honour, Judge Sarpong, found no fault with the plaintiff ‘s evidence. He certainly did not comment on any part of it adversely. He did not however accept it because it was not corroborated. The judge said of this evidence:
“Is there any corroborative evidence of this,? There is none. From the above, I find it difficult to say that negligence has been proved. This being so, I say the plaintiff’s action should be dismissed.”
Unless this is one of the cases in which corroboration is required either as a matter of law or practice, the basis of the judge’s conclusion against the plaintiff was wrong. In so far as the issue involves the sufficiency of proof, the accepted statement of the common law is:
“As a general rule, courts may act on the testimony of a single witness, even though uncorroborated; or upon duly proved documentary evidence without such testimony at all. And where the testimony is unimpeached, they should act on it and need not leave its credit to the jury.”
See Phipson on Evidence (11th ed.), para. 1567. To this general rule, there are two categories of exceptions, namely, those brought about by legislation, instances of which are the Perjury Act, 1911 (1 & 2 Geo. 5, c. 6); the Representation of the People Act, 1949 (12, 13 & 14 Geo. 6, c. 68); the Evidence Further Amendment Act, 1869 (32 & 33 Vict., c. 68); the Sexual Offences Act 1956 (4 & 5 Eliz. 2, c. 69); the Children and Young Persons Act, 1933 (23 & 24 Geo. 5, c. 12), and a number of others, and secondly, those required only as a matter of practice and claiming their rationale in prudence, instances of these being claims against the estate of deceased persons and the testimony of accomplices.
This textbook statement of the law, is supported by a great body of judicial decisions: see for instance Ayiwa v. Badu [1963] 1 G.L.R. 86, S.C.; Republic v. Asafu-Adjaye (No. 2), Court of Appeal, 1 July 1968, unreported; digested in (1968) C.C. 106 and Commissioner of Police v. Kwashie (1953) 14 W.A.C.A. 319. On this issue, the last case is particularly instructive. There, a magistrate convicted the defendant on the evidence of a single witness. The conviction was set aside by the High Court because although the judge said corroboration was not required as a matter of law, he considered it unsafe to convict on the testimony of a single witness. On appeal by the prosecution to the West African Court of Appeal, the judge was held wrong and the decision of the magistrate was restored. These cases show that judicial decisions depend on intelligence and credit not the multiplicity of witnesses produced at the trial.
The instant case is a collision action in which no rule of law or practice requires corroboration. The test here is whether the evidence though given by a single witness is entitled to credit. There is nothing fanciful or improbable about the account of the accident given by the plaintiff. Although the defendants disputed it in cross-examination, they did not elicit from the plaintiff anything which casts discredit on that evidence.
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They did not produce any rival account of their own. As I said, the judge found nothing intrinsically improbable about the plaintiff s account of the accident. He rejected it only because there is no corroboration of it. I think he was in error.
Although the judge did not claim the authority of any decision for his conclusion, he seems to have been influenced in rejecting the plaintiff s case by the authority of the oft-cited case of Majolagbe v. Larbi [1959] G.L.R. 190 with which he was pressed. In that case, Ollennu J. (as he then was) said at p. 192 quoting from Khoury v. Richter, High Court, 8 December 1958, unreported :
“Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true.”
It is plain that the learned judge was not seeking to lay down that a .case cannot be established by the testimony of a single witness. He says, if the averment can be proved in a positive way, it should be so proved. This statement takes its colour from the case which the learned judge was considering. It was a land case in which title and possession were in issue. Such a case readily admits of proof in a positive way, e.g. calling boundary owners, referring to acts of ownership, producing title deeds, etc. In a running down action for instance, the only available witness may be a single one. All other potential witnesses may have died. It would be odd if the law were to provide that such witness’s evidence even if probable and unchallenged, were to be held insufficient to establish the facts of the accident. Yet Majolagbe v. Larbi appears to have been regarded by the profession as laying down that a fact cannot be established in law by the testimony of one credible witness. That conception of the ratio in Majolagbe’s case is wrong and ought to be discarded. In my opinion, the plaintiff s ineffectively challenged evidence ought to be accepted and that done, there can be no gainsaying that the plaintiff came by his injuries because of the negligent driving of the defendants’ deceased driver.
The quantum of evidence aside, the fact that both vehicles collided raises an inference of negligence on the part of one or both drivers and unless they displaced this by evidence, one or both should be held liable to an injured passenger: see Hummerstone v. Leary [1921] 2 K.B. 664, Baker v. Market Harborough Industrial Co-operative Society [1953] 1 W.L.R. 1472, C.A. and a number of cases on res ipsa loquitur at pp. 49-59 of Bingham’s Motor Claims Cases (7th ed.). Here, the plaintiff s evidence identified the defendants’ driver as the person at fault and he alone is to blame for the accident. The defendants did not dispute that he was their servant or that at the time of the accident, he was driving the timber truck
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in the ordinary course of employment. In my judgment, therefore, the defendants are liable in damages to the plaintiff for his injuries.
The plaintiff claimed damages for loss of earnings, pain and suffering and loss of amenities of life. He was 54 at the date of the accident and was a self-employed cocoa farmer living at Atwidie, Ashanti Akim. In his statement of claim, the annual income from his cocoa farm was pleaded as 03,000.00. However he said in evidence he earned twice that sum. He swore that because of injuries which he received to his waist, he cannot now bend and has given up farming. The doctor confirmed the injury to his waist and said he could not bend his trunk forward on account of those injuries.
I think therefore that the plaintiff must be compensated for such loss of future income as the accident caused him. The plaintiff said he employed labourers on his farm and shares the proceeds of the farm with them in the proportion of two-thirds and one-third. According to his evidence, the labourers are still there. It seems that his own role in the farm was mainly supervisory. It is not clear that the income he earns from the farm has diminished because of his own inability to supervise the labourers. He said the cocoa is being plucked as before but he could not himself attend the farm and lend the labourers his aid. I think in all probability, he is bound to suffer some diminution in income, although how much that is, the evidence is far from precise. I think in the circumstances, the fairest way of determining his loss of future income is to evaluate, in terms of money, his own services and multiply it by the number of years that he can reasonably be expected to render this assistance on his farm. At 54 and otherwise in good health and barring any other mishaps, the plaintiff should lend his aid in the farm for at least ten years. The next question is how much, in terms of cash, would the supervisory services of a cocoa farmer of Atwidie be worth? I think 0300.00 per annum is fair and reasonable. Taking ten years’ purchase, I would assess compensation to the plaintiff under this head in the aggregate sum of 03,000.00. But this sum must be taxed down by what, in this branch of the law, is known as the contingencies of life. The future is not ours to see and nobody can say for certain what the future holds for the plaintiff. It is possible that he may have been disabled from assisting on his farm long before he reached 64 years by matters unconnected with this accident. For instance, he may have been disabled by ill-health or his farm may have been destroyed by fire, and indeed by many other unknowns. I would accordingly reduce the damages under this head by 0200.00. That leaves the sum of 2,800.00.
That brings me to pain and suffering. That the plaintiff was fairly seriously injured in the accident can hardly be doubted. He lost consciousness on the date of the accident and regained it at the Agogo Hospital where he was detained for a fortnight. He had what the medical evidence described as extensive laceration at the back of the head, upper right arm, lumber region, i.e. the waist, fracture of the tenth rib with contusion of the overlying tissues and a cut in the upper lip. Since the accident, the pain in the chest has persisted with periodical headaches. Dr. Djoleto who
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examined him six months after the accident was of opinion that he “suffered residual physical disability and disfigurement of 30 per cent.”
I have read and considered recent awards made by the courts in comparable cases and have tried to arrive at a figure that would fit in to the general pattern that seems to emerge. Having done that, I think a fair sum to award in favour of the plaintiff for his pain and suffering is 800.00.
That leaves me only with the head of damages known as the “loss of amenities of life.” There is no evidence of the plaintiff s mode of life, his pastime or what pleasures he indulged in which the accident deprived him of. It is certainly not the case of a man who knows how to enjoy life and has lost it by reason of the accident. The only thing that can be put under this head and which the plaintiff complained of, is impairment of sexual activity since the accident. The doctor said frankly that he could not confirm this. Whether so subjective a complaint is capable of medical verification or not, it seems that virility is one of the attributes which a middle-aged man of 54 would treasure. Whether his diminished sexual activity is due to loss of libido owing to his advancing years or whether it is attributable to the injuries he received, is difficult to say. Be that as it may, the doctor nevertheless found that he sustained an injury to his waist and on account of this “bending trunk forward is restricted” by reason of the resultant pain. In all the circumstances, I think if the injury to the waist is not the sole cause of the impairment of the plaintiff ‘s sexual activities, it nevertheless contributed to it. These matters cannot be demonstrated with mathematical exactness. For a farmer of Atwidie, this must result in a diminution of the enjoyment of life. He ought to be compensated for that. Loss of amenities of life is a head of damage which does not easily admit of being measured in terms of money. The only principle extractable from the decided cases, is that it must be reasonable. I consider the sum of 0250.00 reasonable and will assess damages under this head in that sum.
The plaintiff also claimed special damages representing hospital fees, medical examination and transport expenses from Atwidie to Agogo and from Atwidie to Juaso. They all came to 063.40. I have read and considered the evidence led in support of these claims. It is wholly unchallenged. I am not unmindful that damages of this category must be strictly proved. I think nevertheless they were so proved.
I would accordingly award damages in favour of the plaintiff as follows:
Loss of future income ………… 2,800.00
Pain and suffering ………… 800.00
Loss of amenities of life ……….. . 250.00
Special damages ………… 63.00
Total ………… 3,913.40
I would therefore set aside the judgment of the court below together with the order for costs. I would order that the costs, if paid, should be refunded to the plaintiff. In lieu of the judgment, I would enter judgment
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for the plaintiff against the defendants for the sum of 03,913.40. The plaintiff will have costs in the circuit court assessed at 0250.00. He will also have costs in this court.
JUDGMENT OF ANIN J.A.
I agree.
JUDGMENT OF KINGSLEY-NYINAH J.A.
I also agree.
DECISION
Appeal allowed.
Judgment for the plaintiff with costs.
J. D.
