KWARTENG v. SEI AND ANOTHER [1966] GLR 42

Division: HIGH COURT, SEKONDI

Date: 21 JANUARY 1966

Before: DJABANOR J.

CASES REFERRED TO

(1) Moore v. R. Fox & Sons [1956] 1 Q.B. 596; [1956] 2 W.L.R. 342; [1956] 1 All E.R. 182, C.A.

(2) Barkway v. South Wales Transport Co., Ltd. [1949] 1 K.B. 54; [1948] 2 All E.R. 460; 64 T.L.R. 462; 92 S.J. 528, C.A.

(3) Jay’s Furnishing Co. v. Brand & Co. [1915] 1 K.B. 458; 84 L.J.K.B. 867; 112 L.T. 719; 31 T.L.R. 124; 59 S.J. 160, C.A.

(4) Laryea v. Annan [1964] G.L.R. 755, S.C.

(5) Kwayie v. Yaya, High Court, Sekondi, 20 April 1965, unreported; digested in (1965) C.C. 126.

(6) Aboaku v. Tetteh [1962] 2 G.L.R. 165, S.C.

[p.44] of [1966] GLR 42

NATURE OF PROCEEDINGS

ACTION against the defendants for damages for personal injuries sustained. The facts are fully set out in the judgment.

COUNSEL

K. A. Agyepong for the plaintiff.

First defendant in person.

E. D. Kom for the second defendant.

JUDGMENT OF DJABANOR J. In this action the plaintiff is claiming from the two defendants damages for personal injuries caused to him by the negligent driving of the first defendant, the servant or agent of the second defendant. When the first defendant, then the only defendant, was served with the writ of summons and the statement of claim in the case, counsel entered appearance for him and filed a statement of defence on his behalf. It appears that subsequently this counsel withdrew from the case and Mr. Kom notified the court that he was now appearing for the defendant. At that time, 27 August 1964, the only defendant was Kwaku Sei. Until this time the statement of defence filed by Mr. Okorley, the first counsel for the defendant Kwaku Sei, was to the effect that Kwaku Sei was the owner of the lorry that caused the accident in which the plaintiff was injured. The defendant also then pleaded that the accident was caused by inevitable accident due to the slippery surface of the road. Damages were also put in issue.

In due course the hearing of the case started and it appears that in the middle of the defendant’s evidence the trial was adjourned for the plaintiff to join the second defendant as co-defendant. This was done and the second defendant was served with the relevant pleadings in the case. After the second defendant had filed his statement of defence by himself, the court granted leave for the plaintiff to file an amended writ and statement of claim, copies of which were served on the two defendants. It does not appear that either of them amended his statement of defence thereafter. But the whole trial was fought on the issues as between the defendants whether the second defendant had sold the vehicle to the first defendant before the accident, i.e. whether the vehicle was at the material time owned by the first defendant who was then driving it, or by second defendant, who said he had sold it to the first defendant.

Mr. Kom, it turned out, in fact was appearing not for the first defendant but for the second defendant, and the first defendant had no counsel. Mr. Kom for the second defendant did not contest the question of negligence or otherwise of the first defendant, he was denying the liability of the second defendant so he only tendered a document and called no witnesses.

[p.45] of [1966] GLR 42

The issues which I had to try were: (a) whether the fist defendant, the diver, was negligent in his driving;

(b) who owned the vehicle the first defendant was driving, i.e. AN 5510; (c) in the circumstances could the second defendant be held vicariously liable for the first defendant’s negligence in driving the vehicle; and (d) the quantum of damages.

I will now deal with these issues, the first is whether or not the first defendant was driving the vehicle negligently at the time of the accident. It is not disputed that the vehicle, while being driven by the first defendant, fell into a ditch. It is also not disputed that the road was slippery due to rain having fallen. The plaintiff charged the first defendant with driving too fast in view of such a condition of the road and the defendant, denying this charge, said that the accident was due to the slippery surface of the road. The plaintiff and his witness stated that they shouted to the first defendant to slow down as the road was slippery but he said he was in a hurry to take market women to market. The first defendant did not challenge this statement. The first defendant’s witness, the police constable who investigated the case, stated that he did not believe the defendant when he told him that he was doing only twenty miles per hour. He said that the other passengers said the vehicle was being driven fast. The first defendant, and more particularly his witness Kwarteng, did not impress me as truthful witnesses, as I told them at the end of their evidence. I am of the opinion that he was driving faster than he should have been on such a slippery surface.

In Moore v. R. Fox & Sons1 the Court of Appeal in England approved the dictum of Asquith L.J. in Barkway v. South Wales Transport Co., Ltd.,2 in a case similar to this. Following that dictum I would state as follows: (a) If the defendant’s vehicle leaves the road and falls down in a ditch, and this without more, is proved, then the maxim res ipsa loquitur applies. There is a presumption that the event is caused by negligence on the part of the defendant and the plaintiff must succeed unless the defendant can rebut this. (b) It is no rebuttal for the defendant to show or, as in this case, allege without more that the immediate cause of the accident was the slippery nature of the road per se, is a neutral event equally consistent with negligence as with due diligence on the part of the defendant. When a balance has been tilted one way you cannot redress it by adding an equal weight to each side. The depressed scale will remain down. In this case merely to say that the accident was caused by the slippery nature of the road is [p.46] of [1966] GLR 42 insufficient. The defendant must go further and prove or it must emerge from the evidence either that the defendant drove carefully in spite of the slippery nature of the road or as carefully as the slippery nature of the road would permit and also that the vehicle, e.g. tyres, was in good order. In my view the charge that the defendant was driving faster than the condition of the road would permit was substantiated and furthermore the defendant did not show that he used reasonable diligence. I find him, negligent in his driving on that occasion.

The next point: Who was the owner of the vehicle at the time of the accident? It is not disputed that the vehicle was registered in the name of the second defendant and was so registered at the date of the accident. The insurance policy covering the vehicle was also in the second defendant’s name and so was the quarter licence. He himself admitted that he was the owner but pleaded that he sold it to the first defendant. He did not give evidence. He relied on a document exhibit 1 as the sale agreement. It was worded as follows:

“Agreement is hereby made this 26th day of March, 1962, between Yesufu Adebisi of Chiraano, herein after called the Vendor of the first part and Kwaku Ennin of Sefwi Wenchi, herein after called the Purchaser of the second part, Whereby it is agreed as follows:

(1) That Mr. Yesufu Adebisi has agreed to sell to one Mr. Kwaku Ennin, 2 ton Bedford Lorry No. AN 5510, for cash the sum of £G650 (six hundred and fifty pounds) and that he has paid an amount of £G400 (four hundred pounds) leaving a balance of £G250 (two hundred and fifty pounds) which payment the purchaser has faithfully promised to make by monthly instalments as follows: £G s. d.

1st Instalment 30th April 1962 40 0. 0.

2nd 30th May 1962 40 0. 0.

3rd 30th June 1962 40 0. 0.

4th 31st July 1962 40 0. 0.

5th 31st August 1962 40 0. 0.

6th 30th September 1962 50 0. 0.

£G250 0. 0.

That we have both agreed that, if the purchaser fails to make regular monthly instalments as above stated, the Vendor has the

[p.47] of [1966] GLR 42 right to seize the said 2 ton Bedford Lorry No. AN 5510, and after the seizure, the vendor has to give 10 days notice, written or verbal, and if the purchaser fails to comply with same, the vendor has full right to sell the said 2 ton Bedford lorry No. AN 5510, to any other person, while the purchaser has no right to make any case with the vendor. That the purchaser has no right to sell or transfer the said 2 ton Bedford lorry No. AN 5510, to any one, unless allowed to same by the vendor or the whole balance as above stated is fully paid to the vendor.

Dated at Bibiana this 26th day of March, 1962.”

Kwaku Ennin, it is agreed, is the other name of the first defendant. Although some evidence was given extraneous to this exhibit 1, I will content myself with the intention of the parties as expressed in the document for section 26 (1) of the Sale of Goods Act, 1962,3 states that the property in goods passes under a contract on the date when the parties intend it to pass. In this agreement it is quite clearly stated that,

“if the purchaser [defendant] fails to make regular monthly instalments as above stated, the Vendor has the right to seize the said [vehicle], and after the seizure . . . the vendor has full right to sell the said [vehicle] . . . That the purchaser [first defendant] has no right to sell or transfer the said [vehicle) to any one, unless . . . the whole balance as above stated is fully paid to the vendor.”

It is sufficient for me to state hereafter that the property in the vehicle was not intended to pass to the first defendant until the full price had been paid. In my view the ownership of the vehicle was intended to, and did, remain in the second defendant at the material time.

If it were necessary to determine whether this agreement was a hire-purchase agreement or a credit sale agreement, I would state, resting my judgment entirely upon the licence to take possession of the vehicle and sell it for failure to pay the balance, as indeed was the course taken by Phillimore L.J. in Jay’s Furnishing Co. v. Brand & Co.4 that the document is a hire-purchase agreement. In my discretion I do not think that the failure to comply with all the terms in section 4 (2) of the Hire-Purchase Act, 1958,5 should hinder the hirer in this action. In the result, therefore, I hold that the vehicle was owned at the material time by the second defendant Yesufu Adebisi Lagos.

[p.48] of [1966] GLR 42

The plaintiff has sued the second defendant holding him vicariously liable for the negligent driving of the first defendant on the ground that the first defendant was driving the second defendant’s vehicle as the second defendant’s agent or servant or as the evidence disclosed, with the second defendant’s leave and licence. I say that the first defendant is the second defendant’s licensee because I accept the evidence that the first defendant was given the vehicle and that the understanding was that he was to work with it and pay the stated instalments thereon. My attention was drawn to the case of Laryea v. Annan.6 In that case it was sought to charge the appellant with vicarious liability when the one driving his vehicle was involved in an accident. Unknown to his master this driver after washing the vehicle on a Sunday had carried passengers to watch a football match when the accident happened. Both in his pleadings and at the trial the appellant denied that the driver was his servant or that he was then driving in the course of his employment. The appellant gave evidence and called his paid driver who testified that the one who caused the accident was his mate who was unknown to the appellant. The Supreme Court held in that case that the appellant could not be held vicariously liable in those circumstances. Apart from this case cited being distinguishable from the instant case on the facts I am of the opinion that it is further distinguishable on the ground that the second defendant both in his pleadings and at the trial relied solely on the defence that the vehicle had been sold and that he was not the owner at the relevant time. He adduced no evidence to rebut the inference that the first defendant was his servant and that he was working with the vehicle and paying the instalments to him. What the case of Laryea v. Annan (supra) decided was that when the owner of a vehicle denies that he is vicariously liable and contends that the driver was neither his servant nor doing his work at the relevant time, then it is incumbent on the plaintiff to prove these matters to the satisfaction of the court. In this case the amended statement of claim averred: “That on 25th April 1962 the plaintiff was a passenger on Bedford 2 ton lorry No. AN 5510 along Nkrondua-Atifi-Anhwiaso Road when about half a mile from Nkrondua Atifi the first defendant, servant of the second defendant, and in the course of his employment, or the first defendant in charge of Bedford 2 ton lorry No. AN 5510, the property of second defendant, on a ‘work and pay’ basis, and in the course of his employment, and or agency drove so negligently . . .”

[p.49] of [1966] GLR 42

The second defendant replied that he was not in a position to admit or deny these allegations, and averred that at the time of the accident he had sold the vehicle to the first defendant and that the first defendant was not his servant or agent. In his evidence the first defendant alleged that the vehicle was still owned by the second defendant when the accident occurred, and that the vehicle was given to him on what is popularly described as a “work and pay” basis. In effect this is a system by which the owner of the vehicle gives the vehicle over to another usually a driver, on the understanding that the latter works with the vehicle by driving it for hire by passengers or their goods or both and pays the earnings or a greater portion of them to the owner until the agreed price has been paid after which, as was the case here, the vehicle is properly transferred to the driver. It appeared in this case that even after the vehicle was involved in the accident the first defendant continued to pay for the vehicle and that after three months when the full price had been paid, the second defendant properly transferred the vehicle to the first defendant. Throughout the whole of the first defendant’s evidence counsel for the second defendant only cross-examined to show that the transaction was an outright sale at which property in the vehicle passed to the first defendant. In the circumstances of this case I am clearly of the opinion that it is distinguishable from that of Laryea v. Annan (supra).

In this connection I must remind myself of the case of Kwayie v. Yaya7 which was tried by this court, and in which I considered the judgment of the Supreme Court in Aboaku v. Tetteh8. In my judgment I stated that, “From the authorities it is clear that once the company have admitted ownership of the lorry the onus is upon them to rebut the inference that the driver was their servant or agent.” Following this decision and the authority of Aboaku v. Tetteh (supra) I must hold that in the circumstances of this case it is the second defendant who must show that the first defendant was not his servant and that he was not driving the vehicle in the course of his employment. This the second defendant has failed to do. I therefore hold that the second defendant is vicariously liable for the negligence of the first defendant. As to damages it is settled law that the plaintiff must prove everything and in particular his special damages. These items were not disputed by either of the defendants in cross-examination. I myself think that they are not unreasonable and will allow them. The plaintiff also claimed £G90 for pain and suffering and £G3,000 as general damages. As a result of the accident the plaintiff suffered [p.50] of [1966] GLR 42 the following injuries, “Compound fracture of the left arm, diminution of the left arm, and permanent inability to use the same.” I saw the injured man and I am very satisfied that the disability complained of is real. It is pathetic. I believe that he was in hospital for several months, and that the arm was in plaster for some considerable time. Native treatment followed hospital treatment for some two months. I would say that a claim of £G90 for pain and suffering is not at all unreasonable. There was also evidence that the plaintiff earned £G120 per annum as a farm labourer. This was not disputed. Of course he cannot continue as such again. That means he has lost much of his earning power because a farmer uses both his arms to do his work properly. He himself says that he is virtually unemployable. He was about 30 years old at the time of the accident and it is claimed that he could have continued to work for a further 30 years. Considering that he could have stopped work if this accident had not brought that about prematurely, through other causes, and also that he would be receiving whatever compensation he got in lump sum, and considering the plaintiff might have, in normal circumstances, continued his work as a farm labourer for a further twenty years I would award a total of £G1,800 as general damages including pain and suffering and the £76 special damages as claimed.

In the result I give judgment for the plaintiff against the defendants for £G1,876 (¢4,502.40) general damages and 60 guineas (¢126.00) costs.

DECISION

Judgment for the plaintiff.

S. K. T.