KYEREMATEN v. AMADU [1972] 2 GLR 344
HIGH COURT, SEKONDI
Date: 2 JUNE 1972
BEFORE: EDUSEI J.
CASES REFERRED TO
(1) Blyth v. Birmingham Waterworks Co. (1856) 11 Exch. 781; 25 L.J.Ex. 212; 26 L.T. (o.s.) 261; 20
J.P. 247; 2 Jur. (N.s.) 333; 4 W.R. 294.
(2) Limpus v. London General Omnibus Co. (1862) 1 H. & C. 526; 27 J.P. 147; 158 E.R. 993; 32
L.J.Ex. 34; 7 L.T. 641.
(3) Canadian Pacific Railway Co. v. Lockhart [1942] A.C. 591; [1942] 2 All E.R. 464; 11 1 L.J.P.C.
113; 167 L.T. 231, P.C.
(4) Joseph Rand, Ltd. v. Craig [1919] 1 Ch. 1; 88 L.J.Ch. 45; 119 L.T. 751; 35 T.L.R. 8, C.A.
(5) Joel v. Morison (1834) 6 C. & P. 501; 172 E.R. 1338.
(6) Attorney-General v. Dadey [1971] 1 G.L.R. 228, C.A.
(7) Ward v. Smith (1822) 11 Pr. 19; 147 E.R. 388.
NATURE OF PROCEEDINGS
ACTION by the plaintiff against the defendant for general damages and loss of earnings on the ground that his timber truck was damaged beyond economic repair through the negligence of the defendant’s driver. The facts are set out fully in the judgment.
COUNSEL
A. H. Sackeyfio for the plaintiff.
E. B. Sekyi Hughes for the defendant.
JUDGMENT OF EDUSEI J.
The plaintiff’s claim against the defendant is for general damages and loss of earnings resulting from the negligence of the defendant’s servant, Joseph K. Duodu, by which his timber truck was damaged. The plaintiff was the owner of a timber truck with registration No. GJ 996, and the defendant is a transporter and owner of Morris bus No. GJ 1459. The driver of the Morris bus at the material time was one Joseph K. Duodu, the plaintiff’s first witness. [p.346] of [1972] 2 GLR 344
The facts of the case are that on or about 14 August 1970, the plaintiff’s timber truck with logs was being driven from Abura Dunkwa towards Cape Coast and the defendant’s Morris bus was going from Cape Coast towards Abura Dunkwa. The two vehicles were travelling in opposite directions.
At a point near a village called Taidu the defendant’s driver swerved in a curve to the right and the
plaintiff’s driver in attempt to avoid a head-on collision also swerved further to his left side and in so
doing landed the timber truck in a pond by the road side. The timber truck was damaged beyond
economic repair and it is on these facts that the plaintiff has founded his claim in negligence against the defendant.
The defendant has denied negligence and contended also that at the time of the accident the defendant’s driver had been prohibited from plying beyond the Sekondi-Takoradi City Council area; that is, the driver Duodu was on a frolic of his own when the plaintiff’s timber truck got damaged.
It is quite clear from the pleadings that two issues emerged for determination by the court, namely:
(a) whether or not the defendant’s driver was negligent, and
(b) whether or not the defendant’s driver was on a frolic of his own.
The evidence of the defendant’s driver, the plaintiff’s first witness who gave evidence for the plaintiff
stated that he was driving Morris bus No. GJ 1459 from Cape Coast towards Fosu direction. At a place called Taidu he saw a flock of sheep crossing from his nearside to the offside of the road and, in attempt to avoid hitting them, he swerved to his offside, and just at that time the driver of the timber truck was coming on his proper side of the road and that driver also moved further to his nearside with a view to avoiding a head-on collision with the Morris bus and in so doing the timber truck fell on its side. The driver of the Morris bus did not stop, but sped on for fear of molestation by people around. The evidence of the plaintiff’s first witness which I accept is that at the time he saw the sheep from his nearside there was a culvert ahead of him and that at the time he swerved to his right side the timber truck was only fifteen yards away from him. Here was the plaintiff’s first witness, the defendant’s driver, who was approaching a culvert in a curve and he saw a flock of sheep crossing from his nearside to the offside.
What was the reasonable thing for him to have done in those circumstances to avoid hitting the sheep and also to avoid colliding with the on-coming timber truck? The reasonable thing, I think, the plaintiff’s first witness should have done in the circumstances was to stop or to slow down considerably to allow the sheep to pass and thus remain on his nearside of the road and not to have swerved to the lane of the on-coming traffic. His failure to do so in my view created a difficult situation for the on-coming timber truck, and this in my judgment amounted to negligence on his part. He had no consideration for other users of the road. There was indeed an error of judgment on the part of the plaintiff’s first witness for, he thought he could [p.347] of [1972] 2 GLR 344
avoid hitting the sheep and at the same time avoid a possible collision with the on-coming timber truck. It is not surprising therefore for this witness under cross-examination to admit that “the accident occurred through my fault.” Baron Alderson’s definition of negligence in Blyth v. Birmingham Waterworks Co. (1856) 11 Exch. 781 at p. 784 which has stood the test of time is the guiding principle and it is in these words:
“Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”
I find on the evidence that the plaintiff’s first witness, the driver of the defendant, was negligent, and it is not surprising that when he was subsequently charged with the offence of careless driving he pleaded guilty to it.
I now turn my attention to the consideration of the second issue, namely, whether or not the defendant’s driver was on a frolic of his own. The defence as set out in the statement of defence is that the plaintiff’s first witness was prohibited from plying outside the Sekondi-Takoradi City Council area, and they sought to establish this fact by the evidence of the defendant herself, the defendant’s first witness and the defendant’s third witness. The evidence of these three witnesses shows that specific instructions were given to the plaintiff’s first witness not to drive the Morris bus No. GJ 1459 outside the Sekondi-Takoradi City Council area. But there is evidence that on two occasions the plaintiff’s first witness had passengers for Cape Coast and he drove the Morris bus to that town and on his return he accounted for the proceeds to his employer, though the defendant’s first witness admonished him for travelling to Cape Coast on the first occasion. The plaintiff’s first witness also admitted that at first he was prohibited by the defendant from travelling outside the city council area of Sekondi-Takoradi but that at a later time “she permitted me to go outside Sekondi-Takoradi area.” The defendant’s third witness’s evidence was that at the time the Morris bus was given to the plaintiff’s first witness to drive he heard the defendant’s first witness telling the plaintiffs first witness not to drive beyond Sekondi-Takoradi area. This witness could not be aware of any change in instructions as contended by the plaintiff’s first witness. However, the defendant
in her testimony said that she did not ask the plaintiff’s first witness to take the bus outside the Sekondi Takoradi area.
Apart from the oral evidence on the prohibition there is evidence from Ocran, the defendant’s second
witness and the chief clerk of a firm of solicitors who are representing the defendant in this action that he took down a written statement from the plaintiff’s first witness and in that statement he, the plaintiff’s first witness, admitted that he was prohibited from plying outside the Sekondi-Takoradi City Council [p.348] of [1972] 2 GLR 344 area. This statement is said to have been signed by the plaintiff’s first witness but it has not been tendered in evidence and the reason is that it got lost in the defendant’s second witness’s office. This statement, no doubt, would have been the best evidence on the fact of prohibiting the plaintiff’s first witness from driving the Morris bus outside the Sekondi-Takoradi area. I am however left with the oral evidence of witnesses given in court, and I shall do my best to assess their credibility. The defendant and the defendant’s first witness are wife and husband and they can be considered as interested persons in the result of this case. The defendant’s third witness, Busumpra, stays in the same house as the defendant and the defendant’s first witness. The evidence of these three witnesses must therefore be received with a grain of salt. The evidence of the plaintiff’s first witness is that originally he was prohibited from driving the bus outside the Sekondi-Takoradi area but added that he was later permitted by the defendant to travel outside the prohibited area. The question to consider is—what prevented the plaintiff’s first witness from saying that he was never prohibited at all from driving outside the Sekondi-Takoradi area but instead chose to say what he told the court? I think that the plaintiff’s first witness was telling the court the truth of the factual situation if consideration is given to the fact that he could be called upon in an action to make contribution to any damages that may be awarded against the defendant. In these circumstances I accept the evidence of the plaintiff’s first witness in preference to that of the defendant and her witnesses including the defendant’s second witness. I find that subsequent to the original prohibition that he must not travel outside the Sekondi-Takoradi area the plaintiff’s first witness was permitted by the Morris bus owner, the defendant, to go outside the prohibited area. He was therefore driving the Morris bus on Cape Coast-Abura Dunkwa road in the normal course of his business and was not on a frolic of his own.
But assuming that he was so prohibited can it still be said that the plaintiff’s first witness at the time of the accident was on a frolic of his own? I proceed to examine this important phenomenon, which is a question of fact. The driver of the Morris bus, the plaintiff’s first witness, was employed to carry fare-paying passengers and to account for the proceeds to his employer. This he was doing until the accident happened. In order to make the master responsible the act must be done in the master’s interest, and not for the servant’s own purposes. Thus in Limpus v. London General Omnibus Co. (1862) 1 H. & C.526, the defendant company was held liable for an accident caused by the act of one of its drivers in driving across the road so as to obstruct a rival omnibus and it was held that it was no defence that the company had issued specific instructions to its drivers not to race with or obstruct other vehicles. The driver whose conduct was in question was employed to drive and what he did was a negligent mode of driving and his employers were held responsible irrespective of any prohibition. And so [p.349] of [1972] 2 GLR 344 also in Canadian Pacific Railway Co. v. Lockhart [1942] A.C. 591, P.C. the employers were held liable where their servant in disobedience to orders not to use uninsured motor-cars drove his own uninsured car whilst on a journey for the purposes of the work he was employed to do.
In both cases the principle that emerges is that the servant was doing what he was employed to do but he did it in circumstances which were unauthorised or even prohibited. In either case it was held that the servant was acting in the course of his employment. In the Canadian Pacific Railway case the Judicial Committee per Lord Thankerton advised at p. 601 that:
“… it was not the acting as driver that was prohibited, but the non-insurance of the motor car, if used as a means incidental to the execution of the work which he was employed to do. It follows that the prohibition merely limited the way in which, or by means of which, the servant was to execute the work which he was employed to do, and that breach of the prohibition did not exclude the liability of the master to third parties.”
Mr. Sekyi Hughes counsel for the defendant referred me to the case of Joseph Rand, Ltd. v. Craig [1919] 1 Ch. 1, C.A. In that case, carters were employed by a contractor by day to take rubbish from certain works to his dump and to tip it there and were strictly forbidden to tip it anywhere else. Some of the carters, without the knowledge of the contractor and, in contravention of their orders, took the rubbish to a piece of unfenced land, the property of the plaintiffs and tipped it there. They did this for their own convenience and for their own purpose. The unfenced land was nearer to the works than the dump of the contractor. In an action by the plaintiffs against the contractor it was held by the Court of Appeal affiming the decision of Neville J. that the illegal acts complained of were not within the sphere of the carters’ employment and consequently that the contractor was not liable for them. It is evident from the facts of that case that the carters were paid according to the job they did each day and they tipped the rubbish on the plaintiffs’ land which was nearer the works of the contractor. If they were able to put in an extra load they got an extra payment and it is abundantly clear on the proved facts that the carters did the tipping on the plaintiff’s land for their own purpose and benefit and therefore the acts were their own acts and were not done in the course of employment. It was correctly held that their employer, the contractor, who had forbidden this act, was not responsible for his servants’ acts. This is what Neville J. said in the course of his judgment as quoted by the Court of Appeal at p. 6: “Were these acts within the scope of the employment of the carters? In my opinion they were not. It appears to me that they come expressly within the terms of an act of their own, and in order to effect a purpose of their own.” [p.350] of [1972] 2 GLR 344 The facts in the instant case show that the plaintiff’s first witness was employed to drive fare-paying passengers and to account for the proceeds to the defendant. His going to Cape Coast or being on the Ahura Dunkwa-Cape Coast road assuming that it was forbidden, was not to effect a purpose of his own;
on the contrary the purpose of such a journey was to benefit his employer. The case of Joseph Rand, Ltd. v. Craig (supra) is therefore distinguishable from the present one. Thus in Joel v. Morison (1834) 6 C. & P. 501 at p. 503 it was decided that:
“If he [i.e. a servant] was going out of his way, against his master’s implied commands, when driving on his master’s business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master’s business, the master will not be liable.”
It does not make any difference if the prohibition is implied or express. Azu Crabbe J.A. (as he then was) had this to say in Attorney General v. Dadey [1971] 1 G.L.R. 228, C.A. about the statement of the
principle just quoted. He said at p. 231:
“This passage from the judgment of Parke B. has been cited and approved in numerous cases, and it is now well-established that an employer who permits his servant or employee to use his vehicle is not vicariously liable for the negligence of the servant or employee, unless the vehicle is being used for the employer’s business.”
In the Attorney-General v. Dadey case itself the employers were absolved from liability because the fire service vehicle was not going out to put out any outbreak of fire but it was carrying an employee home to change to enable him to attend a funeral of a fellow employee. Clearly the use of the fire service vehicle on that occasion was outside the scope of the servant’s employment; he was on a frolic of his own. It was
not his duty to take employees home in his employers’ vehicle after work.
On the facts and on the law I hold that the plaintiff’s first witness in conveying fare-paying passengers on Morris bus No. GJ 1459 on the Cape Coast-Abura Dunkwa road was acting in the normal course of his employment, for he was doing something he was employed to do and he was not on a frolic of his own. I therefore find the defendant vicariously liable for the negligence of her driver, the plaintiff’s first witness. Finally, to the question of damages. There is evidence from the plaintiff that when he visited the scene of the accident he found the articulated trailer of the timber truck submerged in a pond whilst the truck itself was partly in the pond and partly on the ground. He further testified that he hired a state transport corporation crane to lift the truck from the scene and carried it to Takoradi on payment of a fee of ¢75.00.
And on the advice of the defendant’s insurers at Takoradi it was taken to the workshop of Africa Motors, Takoradi. The plaintiff [p.351] of [1972] 2 GLR 344 further testified that his timber truck including the trailer was “totally damaged,” and the estimated cost of repairs of the truck as stated by the Africa Motors Ltd. would be ¢10,500.00. Under cross-examination the plaintiff stated that the truck was damaged beyond economic repair and this statement appears to be supported by the evidence. The original cost of the truck itself was ¢9,000.00 and to repair it at a cost of ¢10,500.00 is clearly uneconomical. The trailer too cost him ¢4,440.00.
At the time of the accident the truck was carrying three Wawa logs and their value according to the
evidence was ¢500.00. The truck was purchased in 1969 and in 1970 it got involved in an accident and was damaged beyond economic repair. The trailer, according to the evidence, is still in the pond and it is irretrievable. I accept the evidence of the plaintiff that as a result of the negligence of the plaintiff’s first witness his timber truck having an articulated trailer with registration No. GJ 996 was “totally damaged” beyond economic repair, and he is entitled to compensation. The measure of damages in circumstances such as this is the market value of the truck at the time it was destroyed.
What would have been the market value of the truck in August 1970? I do not suppose there would have been much difference in value but there is no doubt that it had been on the road for a year before it was damaged and it would not fetch the same price on the open market, as a new one. Allowing for depreciation I would fix the market value of the truck at ¢8,000.00. The articulated trailer which was bought at the same time as the truck itself must also suffer some depreciation and this I would fix at ¢440.00, and the value therefore is put at ¢4,000.00. The market value of the truck and its articulated trailer therefore at the time of the accident was ¢12,000.00. This is what is known as pre-accident value of the property damaged. This award of damages flows from the violation of the plaintiff’s legal right — a legal right that his vehicle will not be negligently damaged on the highway. The plaintiff is also claiming ¢40.00 per day as loss of earnings because he was deprived the use of his timber truck for a period, but there is evidence that immediately after the accident he bought a Toyota timber truck in August 1970. The exact date of purchase is not known but considering that the accident took place 14 August 1970 I think the procurement of the new Toyota timber truck within two weeks after the accident would be reasonable, for the plaintiff himself said, “after the accident I started making arrangement for this Toyota timber truck and I had it in August 1970.” In the circumstances I would allow two weeks (that is fourteen days) as the period the plaintiff was deprived of the use of his timber truck and therefore lost his business profits for that period. For this head of damages I would fix the amount of ¢560.00 having accepted his daily net earnings to be ¢40.00, a figure which is not unusual in the timber business. Alternatively, I am even prepared to award the ¢560.00 as general damages for the loss of general business profits, and I find authority for this [p.352] of [1972] 2 GLR 344 proposition in the case of Ward v. Smith (1822) 11 Pr. 19 where, in an action against a lessor for failure to complete a lease of business premises, the lessee recovered as general damages his loss of general business profits, although such a loss was consequential and not part of the normal measure of damages.
The explanation for this decision can be found in Mayne & McGregor on Damages (12th ed.), p. 814,
para. 971 where it is stated that:
“Furthermore, even if an item of damage is special for the purpose of liability because not representing a normal loss, it may yet be general damage for the purpose of pleading, because the test of unexpectedness is not at the time of the commission of the tort or of the making or breaking of the contract but at the later time of pleadings.”
The plaintiff is also entitled to recover damages for the loss of the three Wawa logs which have found
their everlasting resting place in the pond near Taidu, and I accept the evidence of the plaintiff that the three logs were worth ¢500.00. As regards the ¢75.00 representing the cost of hiring a crane from the State Transport Corporation, Takoradi, I disallow the claim thereof because this item was not pleaded. In the result I enter judgment for the plaintiff against the defendant for ¢13,060.00 with costs of ¢300.00.
DECISION
Judgment for the plaintiff with costs.
