MOH v. PFIZER PRODUCT LTD. AND ANOTHER [1968] GLR 138

DIVISION: HIGH COURT, CAPE COAST

DATE: 6 FEBRUARY 1968

BEFORE: ARCHER J.

NATURE OF PROCEEDINGS

ACTION for damages for personal injuries sustained as a result of alleged negligent driving of the second defendant, agent of the first defendant. The facts are fully set out in the judgment.

COUNSEL

K. Acquaah for the plaintiff.

E. Cole for the defendants.

JUDGMENT OF ARCHER J.

The plaintiff’s claims damages from the defendants jointly and severally for injuries sustained by him as a result of the negligent driving of the second defendant, a servant of the first defendant.

The plaintiff’s story is that on 23 December 1964 at about 7 p.m.

[p.140] of [1968] GLR 138 he and two others were walking on the road from Asuoso to Akroso in a line in which the plaintiff was ahead of the rest. They were walking on the grass verge off the road when they saw a vehicle approaching behind them from Asuoso. They gave way to this vehicle. There was another vehicle approaching them from the opposite direction, that is from Akroso and they also gave way to enable this vehicle to pass. But all of a sudden, this other vehicle drove carelessly on the grass verge and knocked down the plaintiff. The plaintiff testified that his left leg was on the grass verge while his right leg was in a gutter near the edge of the road. His evidence is that the near-side, that is the left side of this vehicle knocked him down because the vehicle drove off the tarred portion of the road. The plaintiff became unconscious but later regained consciousness at the Akim Oda hospital. The vehicle which knocked him down was identified as No. SG 6995 owned by the first defendant and driven by the second defendant, an employee of the first defendant. The plaintiff’s only eyewitness was his second witness, Kobina Mantey, who confirmed what the plaintiff said. The second defendant’s version is that on that evening he was driving on the Akroso road from Accra. He saw an on-coming vehicle with its lights on. On driving nearer this vehicle, he found that this vehicle had stopped and there were passengers who were trying to board this stationary vehicle on its off-side. These passengers realised that they were on the wrong side of the road, and upon seeing the second defendant’s vehicle approaching, these passengers began to run and scatter helter-skelter in the road. The second defendant tried to apply his brakes but all of a sudden he heard a bang and on stopping found that the plaintiff had run into the off-side of his car and was lying on the right-hand side of his right front tyre near the mudguard. The right front mudguard and the right light were damaged. The width of the defendant’s car is about five feet. As the second defendant thought the plaintiff was dead, he asked somebody with the plaintiff to stand by while he reported to the police. He therefore drove his vehicle to Akroso police station and brought the defendant’s second witness, Police Corporal Robertson, who took measurements and removed the plaintiff to Akim Oda hospital. Corporal Robertson stated in his evidence that when he arrived at the scene, the plaintiff had apparently been removed from the road onto the grass verge. He said he saw fragments of broken glass on the road and blood on the road a few feet away from the edge of the road. Corporal Robertson thought that because there was traffic on the road the plaintiff had been removed from the point of impact. He examined the second defendant’s vehicle and [p.141] of [1968] GLR 138 found that the off-side front head-lamp of the second defendant’s vehicle was broken and the bonnet on the right hand side was dented.

In support of their story, the defendants subpoenaed a representative of the Royal Exchange Assurance, their first witness, G. K. Kyei, who tendered two letters written by the plaintiff’s solicitor obviously meant for the insurers of the second defendant’s vehicle but which mistakenly were addressed to the Royal Exchange Assurance. The first letter exhibit 2 is dated 18 August 1965 and it reads as follows: “Re—Lorry No. SG 6995

Policy No. M.P. (A) 1435.

I am acting for and on behalf of my client Kofi Moh of Akroso.

On 23 December 1964, my client was knocked down by the above vehicle while he was boarding a stationary vehicle at a place near Akroso. My client suffered serious injuries and he was treated at Oda hospital.

I am writing for police and medical reports and will write to you again when these are available.

Yours faithfully,

(Sgd.) Kofi Acquaah.”

The second letter exhibit 3 is dated 2 September 1965 and the contents are as follows:

“Lorry No. SG 6995

Policy No. M.P. (A) 1435 of 9/1/64

Kwasi Appiah Dankwa

I refer to your letter No. G.K./WA of 23 August 1965. A glance at the police report shows that you are the insurers of the vehicle concerned.

The facts of the accident given by the police is in variance with the statements of the driver of the stationary vehicle and two witnesses who were passengers on the stationary vehicle.

The facts given to me by the eyewitnesses is that the injured person hailed the stationary vehicle when it was approaching to stop. The driver pulled up to the near-side giving sufficient room for other users of the road. The injured person was in the act of boarding the stationary vehicle when your insured vehicle brushed the injured person down when his head was in the stationary vehicle. From the facts at my disposal your insured [p.142] of [1968] GLR 138 was in a certain degree negligent in driving so close to the stationary vehicle as to brush down the injured.

Copies of the police and medical reports are attached hereto. I hope this matter can be settled.

Yours faithfully,

(Sgd.) Kofi Acquaah.”

Corporal Robertson further testified that he took a statement from the plaintiff, exhibit 1, at the Akim Oda hospital and that the plaintiff’s second witness, Kwabena Mantey, was present when the statement was taken. In that statement, the plaintiff never said that he was walking on the grass verge when he was hit by the defendant’s vehicle. The plaintiff challenged the thumbprint on exhibit 1 and at the request of his counsel, I ordered that exhibit 1 together with the specimen thumbprint of the plaintiff taken in court should be forwarded to the finger-print expert at the C.I.D. headquarters at Accra for comparison. That order was made on 20 November 1967 and up to the time of writing this judgment no report has yet been received from the C.I.D. On 30 January I decided to listen to addresses without waiting for the report as Corporal Robertson had already given evidence on that statement and had been cross-examined. Moreover the matter is a civil suit and I cannot compel the C.I.D. to compare the thumbprints. There is no doubt that the evidence of Corporal Robertson corroborates the evidence of the second defendant that: (1) the off-side of the vehicle was damaged, that is the right front light and right side of the bonnet and right front mudguard; (2) that blood was found in the road a few feet from the edge of the road and (3) that on account of moving traffic, the plaintiff was removed from the road onto the grass verge; (4) the plaintiff and his witness Kobina Mantey never told Corporal Robertson during his investigation that the defendant’s vehicle hit the plaintiff on the verge of the road. My impression is that the damage to the vehicle is consistent with the defendant’s story that the accident took place in the middle of the road and not on the grass verge as maintained by the plaintiff. I find therefore that the impact took place on the road between the plaintiff and the right-hand side of the defendant’s vehicle near the right front mudguard. The next question I wish to consider is whether the second defendant was negligent. In the particulars of negligence, the plaintiff pleaded that the second defendant drove at excessive speed and failed to have proper foresight to avert an accident. The plaintiff’s story that the second defendant drove off the tarred road has been rejected [p.143] of [1968] GLR 138 and I am only left to consider how the impact occurred. The two letters, exhibits 2 and 3, indicate clearly that the plaintiff and other passengers attempted to board another stationary vehicle. Exhibit 3 shows that the head of the plaintiff was in the lorry while his body was outside and the defendant’s vehicle “brushed the injured person down.” The particulars of injury pleaded and confirmed by the plaintiff’s third witness, Dr. Bentil, comprised laceration of both legs, a simple fracture of the left femur, compound fracture of the left tibia and fibula; multiple lacerations on the left knee and on the parietal region. I must confess that these injuries alone cannot assist me in finding how the accident happened. The road was about 22 feet wide and assuming that the defendant’s vehicle brushed the plaintiff down from a stationary vehicle on the offside, one would expect to see signs of broken particles or blood in the other offside half of the 22 feet of the road. But Corporal Robertson’s evidence shows that these particles and blood were found in the defendant’s own half of the road. In exhibit 3, paragraphs (2) and (3) refer to statements of the eyewitnesses and the driver of the stationary vehicle, yet none of these witnesses came to court to give evidence on behalf of the plaintiff. The court is left to speculate on what happened. The pleading and evidence of the plaintiff are so inconsistent with previous statements made by him through his solicitor that I am unable to choose one version. I am rather inclined to believe the story of the second defendant that when the plaintiff and other passengers panicked and scattered at the sight of his vehicle, the plaintiff ran towards the middle of the road from the stationary vehicle and knocked himself against the defendant’s vehicle. There is no doubt that I have relied on exhibits 2 and 3 as statements inconsistent with the plaintiff’s oral testimony although the plaintiff’s learned counsel thought that these two letters were privileged because they were written without prejudice and also on the ground that they were communications between solicitor and client. As I said in my ruling, as soon as the solicitor chose to divulge the contents in exhibits 2 and 3 to the Royal Exchange Assurance, whatever privilege attached to these communications between the plaintiff and his solicitor ceased to have any legal effect. The letters were not marked “without prejudice” and the contents do not even suggest that an inference that they were written without prejudice, should be drawn. This is not a case where a defendant has written something through his solicitor which suggests admission of liability. On the contrary, it is a case where a plaintiff in plain words wants a defendant to appreciate why liability attaches to the defendant. In this respect I wish to quote the words of Vaughan Williams J. (as he then was) in Re Daintrey; Ex prate Holt [1893] 2 Q.B. 116 at p. 119: [p.144] of [1968] GLR 138

“In our opinion the rule which excludes documents marked ‘without prejudice’ has no application unless some person is in dispute or negotiation with another, and terms are offered for the settlement of the dispute or negotiation, . . .

The rule is a rule adopted to enable disputants without prejudice to engage in discussion for the purpose of arriving at terms of peace, and unless there is a dispute or negotiations and an offer the rule has no application.”

So also in Walker v. Wilsher (1889) 23 Q.B.D. 335, C.A. Lindley L.J. at p. 337 stated as follow: “What is the meaning of the words ‘without prejudice’? I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted.” Bowen L.J. also in Walker v. Wilsher stated at p.339:

“In my opinion it would be a bad thing and lead to serious consequences if the Courts allowed the action of litigants, on letters written to them without prejudice, to be given in evidence against them or to be sued as material for depriving them of cost. It is most important that the door should not be shut against compromises, as would certainly be the case if letters written without prejudice and suggesting methods of compromise were liable to be read when a question of cost arose. The agreement that the letter is without prejudice ought, I think, to be carried out in its full integrity.” In La Roche v. Armstrong [1922] 1 K.B. 485 Lush J. also thought at p. 489:

“Unless parties to such negotiations can feel safe in making an offer and stating the facts upon which it is based the door to negotiations may be closed. It is for the benefit of litigants and others, that statements should be freely made in order to settle litigation. That being so, it is necessary for me to hold that the solicitor who makes statements in the course of the negotiations ‘without prejudice’ is similarly protected. If the solicitor cannot place before the other side all the material reasons which make the offer of settlement reasonable without fear of an action if the offer is refused, it would be difficult to negotiate at all.” In the present case exhibit 2 was not expressly written without prejudice and it is not clear whether it forms the genesis of negotiation. Exhibit 3 is also not stated to be without prejudice. The last paragraph expresses a hope that the matter can be settled. Neither in these two letters was an offer made so as to invite acceptance from the recipient of these letters. Thus Mellish L.J. in Re River Steamer Co.; Mitchell’s Claim (1871) 6 Ch.App. 822. put it in the following [p.145] of [1968] GLR 138 language at pp. 831-832:

“Now, if a man says his letter is without prejudice, that is tantamount to saying, ‘I make you an offer which you may accept or not, as you like; but if you do not accept it, the having made it is to have no effect at all’.”

Kekewich J. in Kurtz & Co. v. Spence & Sons (1887) 58 L.T. 438 preferred this example at p. 441:

“The plaintiff or defendant, a party litigant, may say to his opponent, ‘Now, you and I are likely to be engaged in severe warfare. If that warfare proceeds, you understand I shall take every advantage of you that the game of war permits. You must expect no mercy, and I shall ask for none; but, before bloodshed, let us discuss the matter, and let us agree that, for the purpose of this discussion we will be more or less frank. We will try to come to terms, and that nothing that either of us says shall ever be used against him so as to interfere with our rights at war if unfortunately war results’.” I have also observed that in Scott Paper Co. v. Brayton Paper Works Ltd. (1927) 44 R.P.C. 151 Clauson J. at p. 156 took the view that

“negotiations, whether or not they are expressly stated to be without prejudice, are, and must be treated . . .as without prejudice in this sense that statements or admissions made by either party at such interviews are not to be admissible as evidence against the maker of the statement or admission.”

I have considered the whole oral testimony of the plaintiff and without even relying on exhibits 2 and 3 I can say with confidence that on a balance of probabilities, his version that the accident took place on the grass verge is not convincing because it is not supported by the damage to the defendant’s car and the position of the broken articles and blood found on the tarred road by Corporal Robertson who investigated the matter and who took a statement from the plaintiff. The plaintiff has failed to establish negligence on the part of the defendants and accordingly his claim is dismissed with N¢200.00 costs to defendants.

DECISION

Action dismissed.

S. K. T.