PRAH AND ANOTHER v. OKAI [1966] GLR 560

Division: HIGH COURT, HO

Date: 17 JUNE 1966

Before: SOWAH J.

CASES REFERRED TO

(1) Malyon v. Plummer [1964] 1 Q.B. 330; [1963] 2 W.L.R. 1213; [1963] 2 All E.R. 344; 107 S.J. 270, C.A.

(2) Kassam v. Kampala Aerated Water Co., Ltd. [1965] 1 W.L.R. 668; [1965] 2 All E.R. 875; 109 S.J. 219, P.C.

(3) Daniels v. Jones [1961] 1 W.L.R. 1103; [1961] 3 All E.R. 24; 105 S.J. 568, C.A.

(4) Peacock v. Amusement Equipment Co., Ltd. [1954] 2 Q.B. 347; [1954] 3 W.L.R. 288; [1954] 2 All E.R. 689; 98 S.J. 523, C.A.

NATURE OF PROCEEDINGS

ACTION by widows of a deceased for themselves and the dependants of the deceased for damages under the Civil Liability Act, 1963 (Act 176), ss. 16 (1) and 18. The facts are sufficiently set out in the judgment.

COUNSEL

I. N. K. Wuaku with him D.A. Boye for the plaintiffs.

A. A. Ackuaku for the first defendant.

Turkson for K. Azina-Nartey for the third, fourth and fifth defendants.

JUDGMENT OF SOWAH J.

The plaintiffs are the widows of the late Francis Kwasivie Akyemde who died as a result of a motor accident on 14 March 1964. They bring the action on behalf of themselves and of the other dependants of the late Akyemde claiming the sum of £G15,000 damages in accordance with the provisions of sections 16 (1) and 18 of the Civil Liability Act, 1963,1 against all the defendants in the writ of summons. No evidence has been led why the action was not instituted in the name of the personal representative nor indeed if there was any personal representative at all; in view however that this action was [p.562] of [1966] GLR 560 instituted about a year after the accident the point is not material for our purposes. One Kwame Sankyere who was the only eyewitness or a person present in the car when it was involved in the accident gave evidence for the plaintiffs. He said that on 14 March 1964 he, the deceased, one Mohamedu and one Kwasi Anorba travelled in a car from Hohoe to Ho. Mohamedu was a magician, Sankyere and Anorba were apprentices to Mohamedu. On arriving at Hohoe their car had a breakdown, nevertheless they went to the Hotel de Majestic. The proprietor of the hotel was the late Kwasivie Akyemde. At the hotel he saw his master talking to the late Akyemde. Shortly after, they were given a Volkswagon car No. WE 2769 owned by the first defendant who also provided them with a driver. He saw the first defendant fill the petrol tank with petrol but he did not know what the arrangements were concerning the loaning of the car. Sankyere said that they were going to perform magic in the Hotel de Majestic but on arriving there, they had no tickets in accordance with the provisions of the Entertainments Duty Act, 1962.2 The late Akyemde therefore offered to travel to Ho with them to help them obtain tickets from the revenue authorities. He said on that day, they set out in the Volkswagon driven by the first defendant’s driver and arrived safely in Ho. They went round to see various persons connected with the issue of entertainment tickets but were unsuccessful in their mission and at about 6.30 p.m. they decided to return to Hohoe. The late Akyemde was sitting next to the driver and the rest of them were sitting on the back seat. When they set out it was getting dark and therefore the driver put on the lights of the car ; between mile nine and ten on the Ho-Anyirawase road, they saw an oncoming vehicle, the driver of the Volkswagon dipped his lights and the on-coming vehicle dipped in response. Almost as soon as they passed this vehicle he said, “I heard a bang on our car: I heard someone shout ‘Christ I am dead.’ I immediately passed out.” He continued, “Almost immediately after I heard a bang on our car, I saw a caterpillar, I did not see any lights on the caterpillar.”

In passing it is necessary to point out that what the witness called a caterpillar was in fact a 24 foot long grader. This is the whole of the evidence on which the plaintiffs’ case was mounted in respect of the negligence of the defendants.

On the facts the principle of res ipsa loquitur is not applicable and no effort whatsoever was made to prove the numerous particulars of negligence itemised in the statement of claim. The evidence led to show the relationship between the first defendant and the second defendant was so exiguous that nothing could turn upon it.

[p.563] of [1966] GLR 560

The relationship of master and servant could not be spelled out. But this case is one of the most astonishing cases that ever came before these courts. Fortunately for the plaintiffs the defence provided the missing links and indeed proved the case of the plaintiffs for them.

The defence of the first defendant was that on 14 March 1964 he had gone to the bar of the Hotel de Majestic for beer with some friends. He was approached by Francis Kwasivie Akyemde who was his friend to lend him the use of his car. He told him the purpose for which he wanted the car, and the first defendant told him he could have it. The first defendant further told him that as he had been drinking he would not be able to drive and that he Akyemde could drive himself. The deceased suggested that the driver who occasionally drove the first defendant should drive him. He explained to Akyemde that that driver was not his regular or permanent driver but he only invited him to drive when he went on trek. He further told him that if he, Akyemde, could control the driver, he had no objection to his driving the car. Akyemde promised to control the driver. Akyemde then gave him money to buy petrol for the car. Later Akyemde and his group went on their journey. The action has been instituted against the first defendant on the grounds that he was the master of the second defendant and presumably that the accident happened in the course of his employment. There is evidence before me that the first defendant was the owner of the Volkswagon car but the evidence before me establishes that at the material time the driver was under the charge and control of the late Akyemde. He was a casual sort of driver whom the first defendant employed on ad hoc duties such as going on trek. I accept the evidence of the first defendant, that he had no interest whatsoever in the management or control of the Hotel de Majestic and that when he gave the car to Akyemde he did so as a friendly gesture. Indeed there is no other evidence before me. I accept his evidence that the late Akyemde undertook to control the driver of the car who at that material time was his servant. For this reason alone I would dismiss the case against the first defendant.

The case against the fourth and fifth defendants was one of negligence and against the third defendant, the Ghana National Construction Company for being vicariously liable for the torts of the fourth and fifth defendants in the course of their employment. The second defendant has not been found to give evidence. The fourth defendant gave evidence on his own behalf and apparently for his master. On 14 March 1964 he was ordered to proceed to Akwamufie to tow a grader which had broken down. He was to tow the grader with the tractor he was driving.

[p.564] of [1966] GLR 560

It is expedient to give a brief description of the grader. It is one of those monstrous machines which is used for moving earth in the construction of roads. I think I am entitled to take notice of the fact that they are capable of moving huge trees and levelling down hills. The machine is 24 feet long, seven feet and seven inches wide. It has a cabin or cockpit at the rear in which the driver sits and manipulates it. As said before, the fourth defendant went to Akwamufie to tow this grader to Ho. He fixed a towing bar which was attached to his tractor to the grader (the length of the towing bar would be between eleven feet and fifteen feet) and set off from Akwamufie at about 1.30 p.m. By 5 p.m. they had arrived at Anyirawase and between 6.30 and 7 p.m. they had arrived at the scene of the accident. No doubt owing to the monstrous size of the grader they could not travel fast and must have been travelling at the rate of 5 miles per hour.

The driver of the tractor Kwadzo Aggor said that after crossing the bridge he saw an on-coming vehicle proceeding towards him at a great speed ; he therefore dipped his lights but the driver of that vehicle failed to respond. The vehicle passed by him and almost immediately he heard a bang, he also saw how the collision occurred; and saw that the driver of the Volkswagon after passing him swerved to the right and collided with the grader which his tractor was towing.

The driver of the grader had left the service of the third defendant and could not be found. The fourth defendant said that they were given five danger lamps so that if they were overtaken by darkness, they could use them to warn other users of the road. As night fell, he hung two of the danger lamps on his vehicle and the grader had two in front and one at the rear. According to the fourth defendant he had a person with him who held a red flag to warn other road users of their approach.

A witness for the third defendant, the Ghana National Construction Company, was the company’s mechanical superintendent Mr. Damien. According to this witness he visited the scene of accident the next morning and gave a vivid description of the positions of the vehicles as he saw them that morning and also expressed his professional opinion as to the cause of the accident. When he visited the scene, he saw that the grader’s long blade was in proper position and was not a danger to the other road users. In passing, I will mention that when the blade is opened, its width is wider than the tractor or the grader. Mr. Damien also told the court that he saw the danger lamps or the grader and the tractor and further that the lamps of the tractor functioned properly.

[p.565] of [1966] GLR 560

Another witness for the third defendant, the Ghana National Construction Company, was the policeman who arrived on the scene soon after the accident. In examination-in-chief this witness said as follows: “The Volkswagon hit the blade of the grader, when I reached the spot there was no light on the grader but there were lights on the tractor. As it was night and the grader was huge on the road and there were no parking lights or danger lights on the grader, I caused it to be sent to a stone quarry a quarter of a mile from the spot.”

He found the width of the road to be 29 feet and the grader occupied seventeen feet of the road. This evidence is the evidence of a witness of the third defendant.

It seems to me that both Aggor and Damien committed perjury when they gave evidence on oath. Aggor would have the court believe that he carried danger lamps and that the grader had lights and danger lamps, further there was a driver’s mate carrying a flag.

Mr. Damien, the mechanical superintendent, in my view is an untruthful witness. On the following day if he ever visited the scene, the vehicles had been towed away. Indeed the police constable’s evidence is that he caused the grader to be towed that very night as it constituted a danger to other users of the road: yet Damien gave a vivid description of the position of vehicles on the road; the position of the dangerous blade on the grader and how the danger lamps were affixed to the grader. All this evidence is untrue and Damien knew he was lying and had come to pervert the course of justice.

As said before the grader is a huge machine, nearly 24 feet long and over seven feet wide. Underneath the grader is a blade with which it scoops earth and levels it. When the blade is in use it protrudes on both sides of the grader, in other words when facing the grader one can see both ends of the blade extending well beyond the width of the grader. When not in use, the blade is adjusted by mechanical means and it becomes hidden underneath the grader between the front tyre and the left back tyre. It appears to me that the blade would only be a few feet shorter than the length of the grader.

I am satisfied from the evidence before me that Aggor was on that night driving a tractor along the Ho-Anyirawase road towing a grader of the size and description already given. I find that the grader occupied a considerable part of the road and that there were no lights on the grader that night. I find that as the Volkswagon went past the tractor there was nothing to warn the driver of the Volkswagon that a vehicle was being towed and he drove into the

[p.566] of [1966] GLR 560 said vehicle. I am of the opinion that the blade of the grader must have got out of position either through the carelessness of the driver of the grader or through a mechanical defect and that unknown to the driver of the Volkswagon it was in his way and further as he drove past the tractor he hit the blade of the grader which should not have been where it was. I find that neither the tractor nor the grader had any danger lamps.

It seems to me that an employer who orders operations of the nature undertaken by the fourth and fifth defendants is in duty bound to see that the greatest care is observed in the operations. There is a duty upon the employer to ensure that the lives and vehicles of other users of the road are not endangered. Even in day time the grader can constitute a source of danger except when precautions are taken and adequate warning is given of its approach; at night the danger is infinitely greater and especially if it carries no lamps. Even if it carries danger lamps, from its construction the lamps can only be hung on the cabin which is about twelve feet or more from the front tyres. The driver of an on-coming vehicle with its lights dipped may not realise that it is approaching a vehicle of such dimensions and description. In my view to permit such a vehicle to be on the road at night without adequate precautions being taken to warn others of its presence is evidence of negligence; for it does constitute a source of danger. In the result I find that the driver of the grader was negligent in his driving of the grader and for occupying the greater portion of the road, I find the fourth defendant was negligent for towing a vehicle of the size of the grader at night and without lights and the third defendant negligent for permitting its employees to tow the grader in the condition in which it was and finally that the third defendant is vicariously liable for the torts of the fourth and fifth defendants. I do not find any negligence or blame attached to the first and second defendants and I dismiss the claim against them.

I now come to the more difficult part of the problem, namely, the assessment of damages. In this regard I would like to refer to the relevant portions of the Act which give a guide as to how the problem is to be tackled. Section 18 (1) of the Civil Liability Act, 1963,3 provides:

“18. (1) The damages under section 16 of this Act shall be—

(a) the total of such amounts (if any) as the court considers proportionate to the loss resulting from the death to each of the dependants,

[p.567] of [1966] GLR 560 respectively, for whom or on whose behalf the action is brought, and

(b) subject to subsection (2), the total of such amounts (if any) as the court shall consider reasonable compensation for mental distress resulting from the death of such dependants.”

The court is further empowered to award damages in respect of expenses actually incurred by the deceased before his death and in respect of funeral and other expenses incurred by the dependants. In my view under section 18 (1) (a) the court is set the task of finding out what pecuniary benefit would have accrued to each of the dependants during the period of dependency had the deceased survived but which has been lost by reason of his death.

I am of the view that Diplock L.J. gives a useful and good guidance as to how the court should set about this task. In Malyon v. Plummer,4 he says:

“Because in most cases the most reliable guide as to what would happen in the future if the deceased had lived is what did in fact happen in the past when he was alive, the common and convenient way of making the first estimate where the deceased at the time of his death was the breadwinner of the family is (a) to ascertain what annual benefit in money or money’s worth in fact accrued to the person for whom the action is brought from the deceased and arising out of the relationship before the death of the deceased, (b) to assess the extent (if any) to which that benefit would be likely to have increased or diminished in value in the future if the deceased had lived, (c) to assess the number of years for which that benefit would have been likely to have continued if the deceased had not been killed by the tortious act of the defendant, and (d) to apply to the annual benefit, assessed under (a) and (c) and generally called ‘the dependency’ the appropriate multiplier derived from (c) . . . “

These principles as laid down are lucid and clear, but the problem arises when the principle has to be applied to the facts of each case. In such assessments one cannot dwell on arithmetical figures to arrive at an answer. The court must make allowances for the changes and chances of this mortal life, the fact that not all the children may survive for the whole period of dependency, the re-marriage of the widows and even the fact that the man’s business may prosper or [p.568] of [1966] GLR 560 collapse. These are the imponderables inherent in the court trying to project itself into the future. Nevertheless the assessment has to be made and whatever one’s sentiments are for the loss of the breadwinner, those sentiments should find no place in the assessment.

This assessment has been made more difficult, in fact very difficult, because the evidence led was too scanty on the subject. I had expected considerable inquiry into the life of the deceased; that is to say what manner of man he was, how he lived, with whom he lived, and how his business fared. I was told that he was a hotel proprietor earning £G40 a month. There was no evidence to establish this bare assertion. When a claim of such a nature is brought for the dependants of a self-employed person, his means and earnings are peculiarly within the knowledge of the plaintiffs and in my view his income derived from his business must be strictly proved. Unless such a principle is adhered to, a dependant of a businessman can always come to court and inflate his income out of all proportion to the reality. As learned counsel for the defence pointed out if the deceased was a hotel proprietor then under the Hotel Customers Tax Act, 1963,5 he was obliged to inform the tax authorities and to keep records which would at least give some indication of his earnings. The returns have not been tendered in this court for me to be able to check upon the figures claimed as being the annual or monthly income of the deceased.

Again a hotel proprietor and for that matter any self-employed person is obliged by law to forward his income and expenses to the income tax authorities. No such returns have been tendered before this court in substantiation of the alleged income. From the evidence before me I am unable to assess the real income of the deceased. There is evidence before me that the hotel is moderately patronised; there is further evidence before me that the hotel was in debt at the time of his death and yet other evidence of his desire to get rid of the hotel as it was not a paying concern ; this was the evidence of Ansah Okai, the first defendant, who was an intimate friend.

The sister of the deceased now in charge of the hotel paid a glowing picture of prosperity, but I am unable to accept her figures; first, the figures she gave were out of all proportion with even the amount claimed in the statement of claim and in any case she too was in difficulty through either not keeping books or if she kept books and returns, such books and returns would belie her assertion and therefore they were not produced to the court.

In spite of the difficulties enumerated above I consider that a reasonable figure as representing the annual earning of the deceased

[p.569] of [1966] GLR 560 would be between £G360 and £G420. There are two widows surviving the deceased and of seven children ranging between the ages of fourteen years and two years at the date of the trial of this action. They were less in years when the action was instituted. I have not had the benefit of seeing one of the widows Awudelia Prah in order to assess her age, her beauty and the prospects of her re-marrying. I was told that she was ill though no certificate was produced. Ama Joe is an attractive young woman between the age of 27 and 30. She says she is a seamstress and has three children by the deceased; they had been married for a period of thirteen years at the date of the death of the deceased. She says she received from her husband for herself and her children £G3 a week. I do not think this figure is unreasonable. Thus between herself and her children they received the sum of £G156 per annum.

She further said Awudelia Prah also received £G3 a week. She gave the impression that she was guessing and did not in fact know. Ama Joe was the senior wife and has more children, I do not think that if she received £G3 a week, her rival with two children would receive the same. I consider £G2 10s. would be reasonable in the circumstance. Thus between Awudelia Prah and her children they would be receiving £G130 per annum.

There are two children of two different women ; unfortunately there is not the slightest evidence before me as to the benefit they derived from their father or how much was spent on them. Once again I am left to find out what is reasonable in the circumstances. The deceased’s father who said he was 96 years also told the court that he received £G1 10s. a month from him, i.e. £G18 per annum.

The deceased was at the time of his death about 36 years old. I consider that if he had not been killed he would probably have had another twenty years of working life; but from the evidence before me it is difficult to forecast the future of his business. I think the only safe course is to hold that the business might have gone on just as before.

As said in the Privy Council case of Kassam v. Kampala Aerated Water Co.,6 “The question of damages for the loss of support is essentially a jury question which must be dealt with on broad lines. Mathematical calculations can never lead to a precisely accurate estimate for the loss suffered.” The same guidance is given in the case of Daniels v. Jones7: “In what is essentially a jury question the over-all picture is what matters. It is the wood that has to be looked at, and not the individual trees.” The court sits in the dual capacity of judge and jury, nonetheless I consider the guidance given a useful [p.570] of [1966] GLR 560 and more equitable one. Indeed in the case of Kassam the trial judge was in the same position as I find myself.

Judging from the attractive appearance of Ama Joe, her age and her prospects of re-marriage, and applying the same yardstick to Awudelia Prah whom I have not seen and considering that in future each of the children would be self-supporting and out of the dependency of the father if he had lived, and having regard to all the ills that this mortal flesh is heir to, to the changes and chances of this life, what I have called the imponderables in such estimation, I am of the view that a fair estimate of damages is £G3,860.

No evidence was led before me to show what mental distress was caused to the father and the wives on hearing the news of the death of their beloved one. Ama Joe was not in Ghana at the time of his death and on her evidence she could not return owing to the restrictions at the Ghana-Togo border. I consider however the news would certainly shock her ; the father would most certainly be shocked at such news. I have not been told of the reaction of Awudelia Prah, it is safe to assume she too, would be shocked. The children were too young to feel the impact. I will award £Gl50 to the widows and the father for mental distress.

The father alleged that he spent nearly £G310 on funeral expenses because the deceased was a popular man. If he did, donations alone should wipe off the expenses. In any case he was not able to prove how he arrived at the total of £G310. I consider the figure is grossly inflated for the purposes of the case and to cash in upon the loss the family has sustained. Learned counsel for the defence has argued that because the donations received and the contributions from the family make up for the expenses of the funeral and cancel such expenses no award should be made on this head. I do not agree. In the case of Peacock v. Amusement Equipment Co., Ltd.,8 it was held that a gift made out of generosity to the dependants should not be taken into account in such matters.

I do not consider that the defendants should however be saddled with extravagant funeral expenses. The old man was extremely hazy about the expenses. I consider £G80 would be a reasonable figure. In the apportionment between widow and children, it has been the practice “to award the greater part of the total to the widow, on the reasonable assumption that she will maintain the children so long as they are dependants and to award comparatively small sums to the children.” Vide Kemp and Kemp on Quantum of Damages (2nd ed.), p. 25.

[p.571] of [1966] GLR 560

I now proceed to apportion. I will take it in this order: Ama Joe and her children, Awudelia and her children and the two girls whose mothers are not dependants.

Ama Joe: £G800 (or ¢1,920.00) in addition to £G50 (or ¢120.00) for mental distress. Evelyn: £G200 (or ¢480.00)

Seibel: £G 200 (or ¢480.00).

Anthony: £G400 (or ¢960.00).

Awudelia Prah: £G700 (or ¢1,680.00) in addition to £G50 (or ¢120.00) for mental distress. Johnson: £G400 (or ¢960.00).

Francis: £G400 (or ¢960.00).

Comfort whose mother is not a dependant will get £G420 (or ¢1,008.00) and Aba will get £G200 (or ¢480.00).

The father is awarded £G150 (or ¢360.00) and in addition £G50 (or ¢120.00) for mental distress. The sum of £G80 (or ¢192.00) being funeral expenses should be paid to the father. The plaintiffs are awarded costs including counsel’s costs assessed at 300 guineas. The first defendant is awarded costs of 140 guineas against the plaintiffs. The costs of the first defendant to be deducted when the plaintiffs’ costs are paid into court.

I hereby order in accordance with the provisions of Order 22, r. 9 (7) of the Supreme[High] Court (Civil Procedure) Rules, 1954,9 that the damages be paid into court. The registrar is hereby authorised to pay to the father Joseph Akyemde his whole share of damages. Fifty per cent of the damages awarded to the widows and their children to be paid to them; the balance to be transferred to the public trustee who invest them in short term government loans. After a period of three years, reasonable sums to be paid out to them for their maintenance.

DECISION

Judgment for the plaintiffs against the third, fourth and fifth defendants.

S.K.T.