HIGH COURT, CAPE COAST
Date: 13 JUNE 1975
EDWARD WIREDU J
CASES REFERRED TO
(1) Tsrifo v. Dua VIII [1959] G.L.R. 63.
(2) Videan v. British Transport Commission [1963] 2 Q.B. 650; [1963] 3 W.L.R. 374; 107 S.J. 458;[1963] 2 All E.R. 860, C.A.
(3) Bourhill v. Young [1943] A C. 92; [1942] 2 All E.R. 396; 111 L.J.P.C. 97; 167 L.T. 261; 86 S.J. 349, H.L.
(4) Riden v. Billings (A C.) & Sons Ltd. [1957] 1 Q.B. 46; [1956] 3 W.L.R. 704; 100 S.J. 748; [1956] 3 All E.R. 357, C.A.
(5) Mourton v. Poulter [1930] 2 K.B. 183; [1930] All E.R. Rep. 6; 99 L.J.K.B. 289; 143 L.T. 20; 94 J.P. 190; 46 T.L.R. 256; 74 S.J. 170; 35 Com.Cas.
(6) Manu v. Mensah [1963] 2. G.L.R. 311,S.C.
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NATURE OF PROCEEDINGS
ACTION for damages brought against the defendants for negligence. The facts are fully stated in the judgment.
COUNSEL
De-Graft Aidoo for the plaintiff.
Kyei, Assistant State Attorney, for the defendants.
JUDGMENT OF E. WIREDU J.
The plaintiff is an infant aged about nine years attending the Cape Coast Methodist Primary ‘B’ School. On the same compound where this school is situate also is the Methodist Primary Girls’ School.
On or about 20 October 1972 the first defendant, an employee of the second defendant, was engaged in the demolishing of a building near the site of the two schools with a bulldozer on the instructions of the second defendant. This building is situate near a hill in between the two schools.
The evidence is not clear as to what type of building this was, but it is believed to be the property of the Methodist Mission. Round about 10.15 a.m. of the same day the school children came out for recreation.
Some of them were attracted to the site of the demolition by the operations of the bulldozer. Among them was the plaintiff who testified that whilst he was playing with some of his friends he saw the bulldozer reversing towards where they were and in their attempt to run off from the site he was pushed down by one of his colleagues and saw the bulldozer crash into the building causing a piece of its wall to fall on his left foot, causing injury to same. He therefore by this action sues the defendants for damages. He sued by his father as his next friend and bases his claim on the averments contained in paragraph (4) of his statement of claim which reads:
“(4) On or about 20 October 1972 and at about 10.15 a.m. and at the Methodist Primary School, Cape Coast, the first defendant who was then engaged in demolishing a building at the Methodist Primary School on the orders and instructions of the second defendants so negligently crashed the said bulldozer into the building being demolished with such violence, that a piece of the side wall of the said building of about eight blocks, violently fell on the plaintiff, one of the several school children of the Methodist Primary School, Cape Coast, who were then lawfully playing in the school compound to the knowledge of the first defendant, injuring and crushing his left foot with traumatic amputation leaving nasty scars and disfiguring left foot.
Particulars of Negligence
(a) Driving the said bulldozer No. BTD 6 at an excessive and violent speed into the said building.
(b) Ignoring the presence of the infant school pupils whom the first defendant had seen and who were playing in the school compound.
(c) Failing so to manage or slow down or stop the said bulldozer as to avoid the said violent crash into the said building.
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(d) Failing to take any measures to prevent falling bricks or blocks of stones from hitting pedestrians and school children in the area of the demolition assignment.”
The case for the defence is a denial of the plaintiff s claim and by paragraphs (4) to (8) of their statement of defence they pleaded:
“(4) The defendants deny the averments contained in paragraph (4) of the statement of claim and will at the trial put the plaintiff to strict proof of the averments contained therein; and further deny that the first defendant ever negligently drove or managed or controlled the bulldozer in pulling down the building.
(5) The defendants say that the first defendant was properly carrying out his duties in pulling down the building and that some time during the operation the children of a school in the area came out for their recreation.
(6) The defendants further say that the first defendant at this time stopped the operation till all the children returned to their classrooms after the recreation.
(7) When all the children had left for their classrooms the first defendant then started the operation and that it was some time later that in the process of pulling down a wall he heard shouts of alarm. He then reversed the bulldozer and the plaintiff was found trapped by a part of the wall.
(8) The defendants say that the plaintiff’s negligence was the sole cause of the accident referred to in paragraphs (2) and (3) of the plaintiff’s statement of claim.”
Some of the issues raised for trial on the pleadings were:
(1) Whether the plaintiff was a trespasser on the site;
(2) Whether the accident occurred during the recreation period;
(3) Whether the first defendant was negligent in his operations and as a result caused the injuries complained of by the plaintiff.
On the evidence also the following issues cropped up for determination:
(a) Whether there was any prior warning given to the authorities of the two schools within the vicinity of the demolition to keep the children away from the site; and
(b) Whether there were some school children playing near the site of the demolition.
At the trial, the plaintiff himself gave evidence and called four other witnesses. He testified that: (a) during the recreation period, when he was playing with some of his colleagues on the hill, the first defendant was still operating the bulldozer and it was during that period that the accident occurred; (b) that the operations attracted a number of persons who were watching the same; (c) that it was the bulldozer which crashed into the building causing a piece of its wall to fall and injure his foot; and (d) that no warning was given to them at school as was contended by the defence.
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The case for the defence as testified in court by the first defendant and two witnesses called on their behalf in a nutshell was that prior to the commencement of the operation they warned the authorities of the schools about the operations and requested that the children be kept away from the site; that during the recreation period the first defendant was working far away from where the first plaintiff was injured; that they did not observe any child around; and that in fact no child came around the area; and finally that the first defendant at the material time was just levelling the ground and was not pulling down the walls of the building.
I have no hesitation in resolving all the issues joined in this case in favour of the plaintiff. For not only is his version of the story supported by his own witnesses but a substantial part of it is supported by the evidence brought on behalf of the defendant: see Tsrifo V v. Dua VIII [1959] G.L.R 63. The defence in evidence admitted that during the recreation period when the incident occurred the first defendant was still working with the bulldozer. There was evidence by the plaintiff s third witness and the defendant’s fourth witness, independent eye-witnesses, that at that material time the demolition work was going on. The plaintiff s third witness further testified that it was when the bulldozer crashed into the building that a piece of wall fell and injured the plaintiff. There was also evidence to show that apart from the plaintiff there were other school children around the scene of operation with him who rushed to inform the plaintiff s fourth witness, a teacher of the primary school, about the plaintiff s injury. The evidence about an alleged warning was given by the defendant’s first witness who is not on the staff in the plaintiff s school. The over – whelming evidence also shows that a lot of people including workers around were attracted by the operations of the bulldozer.
On the issue of liability it was submitted that the first defendant was “not liable because the plaintiff was a trespasser to whom the first defendant owed no duty of care and that the injury sustained by him was due to his own fault and therefore not actionable. Counsel contended in the alternative contributory negligence against the plaintiff. For authority he cited the case of Videan v. British Transport Commission [1963] 2 Q.B. 650, C.A. For the plaintiff it was submitted that he was lawfully playing with his colleagues on the site which was not a prohibited area and that he could not be regarded as a trespasser. On the issue of negligence learned counsel submitted that on the pleadings, the facts on which the defence were relying to exonerate themselves were destroyed in evidence and that they should not now be permitted to plead the defence of contributory negligence. He referred to the case of Bourhill v. Young [1943] A.C. 92, H.L. and submitted that the act of the plaintiff has not in any way been shown to have contributed to the cause of his injury.
On the pleadings the issues as I have stated above on the question of liability were based on whether the plaintiff was a trespasser or not and secondly whether the first defendant was negligent.
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These two issues involve mixed fact and law. The determination of the issue of negligence depends on the facts as provided by the evidence; and on the duty the defendants who were in charge of the operations owe to other persons in the area of their operation. A finding that the plaintiff was lawfully playing on the site berefts the problem of any difficulty because in that event he will then fall within the category of persons to whom the defendants would owe a duty of care, a breach of which resulting in injury to him would make them liable in damages. For it is settled by the highest authority that a contractor doing work on premises is under a duty to use reasonable care to prevent damage to persons whom he may reasonably expect to be affected by his work. see Riden v. Billings (A.C.) & Sons Ltd. [1957] 1 Q.B. 46, C.A.
On the issue of negligence I find the first defendants wanting in care in their operations. This findings is based (a) on the established evidence by the plaintiff and the plaintiff s third witness, a teacher in the plaintiff s school, that the accident occurred during the recreation period and (b) contrary to their pleadings (that the accident could not have occurred during the recreation period because according to the defence the first defendant had then stopped all operations), the first defendant himself testified that he was still operating the machine during that period and that he himself did not see how the accident occurred, but rather his attention was drawn to it by the shouts of some onlookers. The pleadings clearly showed that the defence reasonably anticipated the children’s presence at the scene of operations during the recreation period and the only reasonable way they could have prevented any incident was to have stopped operations during that period or to have watched out for any probable intrusion by the school children who had come out to play at that material time so as to warn them off the site. This the first defendant on the evidence did not do and by his operations during that period paid no heed to the presence of the children playing around and thereby caused injury to the plaintiff. In this regard he was negligent and the second defendant as his employer is liable to the plaintiff in damages.
Assuming, for the purpose of argument, I accept the defence’s contention that the plaintiff was a trespasser would that affect the defendant’s liability? I think not on the particular facts of this case. In the Videan case (supra) cited by learned counsel for the defendants, Lord Denning M.R. dealing with the duty owed towards trespassers by occupiers and contractors or anyone who carries on any activity on land had this to say at pp. 665-666:
“The answer, I think, is to be found by applying the test of foreseeability which is so amply established in our law by Donoghue v. Stevenson ([1932] A.C. 562; 48 T.L.R. 494, H.L.), Hay or Bourhill v. Young ([1943] A.C. 92; [1942] 2 All E.R. 396, H.L.), and Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engineering Co. Ltd. (The Wagon Mound) ([1961] A.C. 388; [1961] 2 W.L.R. 126; [1961] 1 All E.R. 404, P.C.). The true principle is this: In the ordinary way the duty to use reasonable care extends to all persons lawfully on the land,
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but it does not extend to trespassers, for the simple reason that he cannot ordinarily be expected to foresee the presence of a trespasser. But the circumstances may be such that he ought to foresee even the presence of a trespasser: and then the duty of care extends to the trespasser also. Children’s cases afford a good illustration. As I said in Miller’s case (1958 S.C. (H.L.) 20, 37-38): ‘He ought to have children in contemplation if he knows that they are in the vicinity or are likely-then or later-to be attracted to the spot. It does not avail him to say: ‘They are ‘trespassers’ and wash his hands off all responsibility. He cannot take refuge in the thought: “I am not going to bother about them-they have no permission to be there.” He must bother about them if he knows or ought to know that they are likely to be affected by what he is doing. He must take reasonable care to prevent injury to them.’ Once he foresees their presence, he owes them the common duty of care, no more and no less. I would not restrict it to a duty ‘to treat them with common humanity,’ for I do not know quite what that means. I prefer to say that he is to take reasonable care.”
Continuing his Lordship enumerated at pp. 666-667 a number of factors to be taken into consideration in applying the test of foreseeability namely:
“(1) . . . the gravity and likelihood of the probable injury . . . The more dangerous the activity, the more he
should take care to see that no one is injured by it . . . : see Buckland v. Guildford Gas Light and Coke Company Ltd. ([1949] 1 K.B. 410; [1948] 2 All E.R. 1086) . . . (2) . . . the character of the intrusion by the trespasser. A wandering child or a straying adult stands in a different position from a poacher or a burglar. You may expect a child where you would not expect a burglar . . . Cooke v. Midland Great Western Railway of Ireland ([1909] A.C. 229) . . . and . . . Grand Trunk Railway of Canada v. Barnett ([1911] A.C. 361; 27 T.L.R. 359, P.C.) . . . (3) . . . the nature of the place where the trespass occurs. A public highway is different from private property or even from a railway line . . . (see Lynch v. Nurdin (1841) 1 Q.B. 29, 30) . . .
(4) . . . knowledge which the defendant has, or ought to have, of the likelihood of trespassers being present . . . Excelsior Wire Rope Co. v. Callan ([1930] A.C. 404) . . . Robert Addie & Sons (Collieries) Ltd. v. Dumbreck) [1929] A.C. 358) . . . In short, all the circumstances must be taken into account in order to see whether the consequence is ‘within the risk created by the negligence’.”
Applying these principles to the facts of this case it could be said that the defendants were carrying out a dangerous activity. The area of operation was open to the children around. It was not a prohibited area. It could reasonably be foreseen that people or at least the school children would be there that is why the defence pleaded that during recreation period when the children came out the operation had stopped. On the particular facts of this case if either the first defendant or the defendant’s
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second witness who was with him had watched out they would have seen the presence of the children and warned them off. I hold therefore that the plaintiff s claim succeeds even as a trespasser and I do not find any contributory negligence against him: see also Mourton v. Poulter [1930] 2 K.B. 183.
Now to damages. The plaintiff was aged about six at the time of the accident. His injuries were as follows:
1. Crushed injury of the left foot.
2. Avulsion of the skin and sole of the left foot.
3. Fracture dislocation of all the toes on the left foot. Refer X-ray No. CC.221472.
4. Bleeding from crushed foot.
5. Severe pains in the left foot.
6. His present condition as spelled out in exhibit A, the medical report on him shows the following: “He cannot walk properly on the left foot without toes. His permanent disfigurement and disability is assessed at 60 per cent.”
In the case of Manu v. Mensah [1963] 2 G.L.R. 311, S.C. it was held as stated in the headnote that:
“where any injury resulted in damage which does not admit of assessment by arithmetical calculation, the injured person should be and reasonable compensation to be awarded fair assessed in the light of previous awards in respect of comparable damage.”
In the instant case even though there is no proof of any loss of expectation of life nor has it been shown satisfactorily that the injury is capable of depriving the plaintiff of any ability to earn a living in the future, he has suffered considerable pain and loss of amenities. He has also been disfigured and disabled permanently. My searches have not availed me successfully with any comparative award. Counsel for the defendants considered 6,000.00 a fair figure. I consider 5,000.00 a generous and reasonable figure in the light of the particular facts and circumstances of this case. There will therefore be judgment for the plaintiff in the sum of 5,000.00 with cost of 0450.00 against the defendants jointly and severally.
DECISION
Judgment for the plaintiff.
L. F. A.
