QUARCOO v. APPIAH [1972] 2 GLR 30
HIGH COURT, ACCRA
Date: 9 MARCH 1972
BEFORE: ABBAN J.
CASES REFERRED TO
(1) Dulieu v. White & Sons [1901] 2 K.B. 669; 70 L.J.K.B. 837; 85 L.T. 126; 50 W.R. 76; 17 T.L.R.
555; 45 S.J. 578.
(2) Smith v. Leech Brain & Co., Ltd. [1962] 2 Q.B. 405; [1962] 2 W.L.R. 148; 106 S.J. 77; [1961] 3
All E.R. 1159.
(3) Smith v. London and South Western Ry. Co. (1870) L.R. 6 C.P. 14; 40 L.J.C.P. 21; 23 L.T. 678; 19
W.R. 230.
(4) Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. (The Wagon Mound)
[1961] A.C. 388; [1961] 2 W.L.R. 126; 105 S.J. 85; [1961] 1 All E.R. 404; [1961] 1 Ll.Rep. 1, P.C.
(5) Re Polemis and Furness Withy & Co. [1921] 3 K.B. 560; 90 L.J.K.B. 1353; 126 L.T. 154; 37
T.L.R. 940, C.A.
(6) Bradford v. Robinson Rentals [1967] 1 W.L.R. 357; 111 S.J. 33; [1967] 1 All E.R. 267.
(7) Hughes v. Advocate (Lord) [1963] A.C. 837; [1963] 2 W.L.R. 779; 107 S.J. 150; [1963] 1 All E.R.
705; [1963] S.C. (H.L.) 31, H.L.
(8) Admiralty Commissioners v. S.S. Susquehanna [1926] A.C. 655; 95 L.J.P. 128; 135 L.T. 456; 42
T.L.R. 639; 17 Asp. M.L.C. 81; 33 Com.Cas. 1, H.L.
(9) West (H.) & Son v. Shephard [1964] A.C. 326; [1963] 2 W.L.R. 1359; 107 S.J. 454; [1963] 2 All
E.R. 625, H.L.
(10) British Transport Commission v. Gourley [1956] A.C. 185; [1956] 2 W.L.R. 41; 100 S.J. 12;
[1955] 2 All E.R. 796; [1955] 2 LI.Rep. 475, H.L.
(11) Dagomba v. Dagomba, Court of Appeal, 2 March 1970, unreported.
NATURE OF PROCEEDINGS
ACTION for damages for personal injuries sustained by the plaintiff as a result of a motor accident
involving a vehicle owned and driven by the defendant. The facts are fully set out in the judgment.
COUNSEL
N. N. Heward-Mills for the plaintiff.
Mrs. Esi Cobbinah for the defendant.
JUDGMENT OF ABBAN J.
The plaintiff in this action claims special and general damages for the personal injuries which she
sustained as a result of a motor accident involving a vehicle owned and driven by the defendant.
As stated in her evidence, the plaintiff is a member of a spiritual church, known as Bethany Church. The church is located at Kaneshie. Accra, and the plaintiff who lives at Osu always travels to Kaneshie to worship in this church. On 28 March 1969, after the usual church service, the plaintiff, in company of other members of this church, took a bus from Kaneshie bus stop to Accra Central Bus Station near the Opera Cinema. They could not get a bus to take them from this terminus to Osu as it was too late in the night and the last bus had apparently left.
Some of those persons at the bus station decided to walk home. The plaintiff and a friend of hers (the
plaintiff’s first witness) after some hesitation also decided to walk. Consequently, they left this bus stop. [p.32] of [1972] 2 GLR 30 They walked along the 28th February Road and on the pavement on the left side of the said road facing the direction of the Black Star Square (now Independence Square). There were other groups of persons going in the same direction and who were walking ahead of the plaintiff and her first witness. The plaintiff stated that she and her first witness were walking abreast, the plaintiff being next to the road.
According to the plaintiff, when she and her first witness got to a place near the P.W.D. Headquarters and before the traffic lights in the area a vehicle suddenly emerged from behind and knocked her down on the pavement. The plaintiff suffered injuries and was rushed to the Korle Bu Teaching Hospital where she was admitted and remained for eleven weeks.
The first witness for the plaintiff, Margaret Osei Kuffour, said on the night of the accident she was with the plaintiff. She averred that after the church service at Kaneshie, she and the plaintiff joined the same bus from Kaneshie to the main bus stop in Accra Central. There was no Osu bus when they got to this stop. So they were compelled to walk home. At that time, the plaintiff’s first witness was also living at Osu. She said they walked on the pavement along the side of 28th February Road and they walked side by side, the plaintiff being on the right of the plaintiff’s first witness. She confirmed the evidence of the plaintiff that they walked on the pavement on the left side of the said road when facing Osu direction. The first witness for the plaintiff further stated that when they reached a spot near the P.W.D. Headquarters a car came along with full speed from behind and knocked down the plaintiff on the pavement. This witness and the plaintiff emphatically denied that the plaintiff stepped into the road and was knocked down on the road by the vehicle.
In continuing her evidence, the plaintiff’s first witness said after the plaintiff had been knocked down, the driver who happened to be the defendant, did not stop but drove on. So she (the plaintiff’s first witness) shouted to those groups of persons, who were at that time walking ahead of them, to look at the registration number of the vehicle, because she (the plaintiff’s first witness) realised that the defendant was running away.
The plaintiff was then lying down on the pavement and the plaintiff’s first witness could not therefore leave her there alone. She said the defendant drove on to the traffic lights near the offices of the Government Printer and then turned to the left. However, the defendant later on returned to the spot where the plaintiff was lying and with the assistance of the defendant himself and other persons, who had by that time gathered at the scene, the plaintiff was lifted into the defendant’s car and was conveyed to the Korle Bu Teaching Hospital.
The substance of the defence is what has been summed up in paragraph three of the statement of defence. It reads as follows:
“In further reply to paragraph 1 of the statement of claim the defendant states that in the evening of 28 March 1969, he drove the said vehicle along 28th February Road and when he reached the Government Printing Office, the plaintiff who was walking along [p.33] of [1972] 2 GLR 30
the pavement on the left with a group of other persons suddenly and negligently entered the road just ahead and collided with the defendant’s vehicle.”
The defendant in his evidence gave details of this defence. He said on the day in question he attended the inauguration of the Bank of Ghana Officers’ Club at the Community Centre. He had few drinks at this function and left the place at about 10.15 p.m. for his house at Osu with a friend of his, Joe Frimpong Taylor, the defendant’s first witness. The defendant, according to him, drove from Parliament House area towards the Black Star Square and along the 28th February Road. While proceeding along he saw a group of people walking from a certain bus stop near the P.W.D. Headquarters towards Osu direction. These persons were walking on the pavement on his left side of the road. He said he was travelling at the speed of 20 to 25 miles per hour when suddenly one of those persons walking on the said pavement went to his way in front of him. He said he could not stop and so the left side of his vehicle hit that person. He later found that the plaintiff was the victim.
He further stated that after hitting the plaintiff he drove on for about six yards before he stopped. He then asked his friend Taylor to go down from the car to where the plaintiff was lying. After dropping Taylor, he made a U-turn on the road and went back to the scene; and those who had come to the spot helped to lift the plaintiff into his car. The defendant then drove the plaintiff straight to the Korle Bu Teaching Hospital.
There is not much difference between the evidence of the defendant and that of his first witness, Joe
Frimpong Taylor. He said he was with the defendant in the defendant’s car when the accident occurred.
He stated that the plaintiff was hit on the road and not on the pavement. He could not, however, remember whether he saw the plaintiff before the impact. He averred that before the accident, he saw people walking in a group on the pavement on the left side of the road, but he could not identify the plaintiff from that group. He could also not tell the speed at which the defendant was travelling.
The most important issue in this case is whether the defendant’s vehicle ran into the plaintiff on the
pavement or whether the plaintiff suddenly and negligently stepped into the road and was hit on the road.
I have given careful consideration to the evidence as a whole, and, on the balance of probabilities, I am of the opinion that the version of the plaintiff and her witness is the true account of how the accident occurred. I do not accept the evidence of the defendant and his witness. I am convinced that on the night in question, even though there were other persons walking along the road and on the said pavement, the plaintiff and her witness were not in the company of those other persons. The two of them (the plaintiff and her witness) were walking side by side on the pavement at the time of the accident. The defendant, who is an evasive type of witness, said he saw the plaintiff in a group of people [p.34] of [1972] 2 GLR 30 but could not remember how far he was from the plaintiff when he first saw her. When pressed under cross-examination, and finding that he had been driven to the wall, he then retracted by saying that he saw the plaintiff “just about the same time of the collision” and not before.
Again, the defendant said when he first saw the plaintiff, the plaintiff “was pretty close to the edge of the pavement.” If this is true, then one is at a loss why the defendant did not think it proper and reasonable, under those circumstances, to drive some distance away from the edge of the pavement, but should also choose and persist to drive “pretty close” to the edge of that very pavement, leaving all that wide space on his off-side, which space according to him, could conveniently accommodate about three other cars of the same size as his. The defendant’s first witness gave the impression that he saw how the accident happened. He said:
“What happened was that the plaintiff and the other people walking with her were seriously engaged in a serious conversation and the plaintiff suddenly came on to the road and the car hit her.”But the defendant’s witness changed this story later on and said: “All that I saw was that the plaintiff was
on the road. I cannot tell whether she jumped, walked or whether she slipped into the road.” Surely, if the defendant’s witness in fact saw how the accident occurred he should have been able to tell the court as to whether the plaintiff ran or walked into the road. I think he never saw what exactly happened. He only realized that the plaintiff had been hit, but where or how she was hit was not seen by him.
I am of the view that the defendant and his witness have not been candid to the court, and I do not
therefore believe their story. I am of the firm belief that at the time of the accident, the defendant and his witness who had just left a party after having had some drinks, were absorbed in a conversation to such an extent that the defendant was not paying proper attention to his driving. I therefore hold that on the night in question the defendant drove his vehicle without due care and attention and as a result the vehicle went on to the pavement where the plaintiff was walking and knocked her down. The impact was so violent that the defendant had his windscreen smashed. The defendant before and after the impact did not even make the attempt to apply his brakes, even though according to him he was travelling at the speed of about 20 to 25 miles per hour and he could conveniently have done so. I think he was driving at a speed greater than 25 miles per hour and in a very negligent manner. Indeed, he was so indifferent to the extent that after knocking down the plaintiff, he simply drove on unconcerned for more than 90 yards. It was the shouts of the plaintiff’s first witness and those in the vicinity that brought him back to the scene.
Furthermore, I find that the plaintiff never contributed in any way to the accident which was due to the gross negligence of the defendant. The defendant is solely liable for the accident and for the injuries suffered by the plaintiff and he must therefore be condemned in damages.
[p.35] of [1972] 2 GLR 30 Learned counsel for the defendant in her address raised a very vital point about the quantum of damages which the plaintiff is entitled to recover, and it is necessary that that point should be dealt with at this stage. It is clear from the medical report and from the evidence of the specialist, the orthopaedic surgeon, Mr. K. G. Korsah, that the failure to perform a surgical operation on the plaintiff’s leg, owing to lack of blood, was the cause of the high percentage of the plaintiff’s incapacity. If the plaintiff had been able to obtain blood or if blood had been available in the blood bank of the hospital at the material time, and the said operation had been carried out successfully, the plaintiff would not have endured pain for all that long. Her health would not also have been impaired to the extent as it has now, and the percentage of her permanent incapacity would have been far less than the fifteen per cent.
Learned counsel for the defendant, encouraged by this piece of evidence, contended with persuasive
force, that since the lack of surgery was the cause that aggravated the plaintiff’s incapacity, and since this was a situation which cannot be said to have been reasonably foreseen by the defendant, or by any reasonable person in the position of the defendant, the defendant should not be made liable for the full extent of the damage suffered by the plaintiff. Counsel, therefore, submitted that in the circumstances the damages recoverable should be reduced considerably.
I am in great sympathy with this submission of learned counsel. But, unfortunately, I do not think it will be right to relieve the defendant of the full responsibility for all the consequences which can be said to have flown directly from his negligent conduct. Whether or not the lack of surgery contributed wholly or partly to the incapacity of the plaintiff, the injuries (which the defendant negligently inflicted) were the type which the defendant could reasonably have foreseen; and the defendant, as a tortfeasor, must be asked to take the plaintiff as he finds her. In cases of personal injuries, the principle is that so long as some injury to the plaintiff was reasonably foreseeable, the defendant is liable for the full extent of the damage. The victim must be taken talem qualem, even though the factors which aggravated his injuries are unforeseeable. In the well-known case of Dulieu v. White & Sons [1901] 2 K.B. 669 at p. 679, Kennedy J. said:
“If a man is negligently run over or otherwise negligently injured in his body it is no answer to the sufferer’s claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart.”
Lord Parker C.J. referred to this dictum of Kennedy J. with approval in the recent case of Smith v. Leech Brain & Co. Ltd. [1962] 2 Q.B. 405. In the latter case, a widow brought an action under the Law Reform [p.36] of [1972] 2 GLR 30 (Miscellaneous Provisions) Act, 1934 (24 & 25 Geo. 5, c. 41), and the Fatal Accidents (Damage) Act, 1846-1908 (8 Edw. 7, c. 7), for damages arising out of an accident to her husband in the course of his employment by the first defendants. As a result of that accident the husband suffered a small burn on the lip and subsequently died of cancer. One of the questions which called for decision was whether the cancer which the plaintiff’s husband admittedly got, and the death resulting from it, were caused in whole or in part by the burn. It was held, inter alia, as appearing in the headnote:
“That a tortfeasor must take his victim as he found him, and the test of the defendant’s liability in respect of the death was not whether they could reasonably have foreseen that a burn would cause cancer and death, but whether they could reasonably foresee the type of injury suffered, namely, the burn; and that, therefore, since the cancer was merely an extension of the burn, which they should reasonably have anticipated, the defendants, were liable in damages.”
In the course of his judgment, the learned Chief Justice reviewed the principles laid down in a number of cases including Smith v. London South and Western Ry. Co. (1870) L.R. 6 C.P. 14; Overseas Tankship (U.K.) Ltd. v. Morts Docks & Engineering Co. Ltd. (The Wagon Mound) [1961] A.C. 388, P.C. and in Re Polemis and Furness Withy & Co. [1921] 3 K.B. 560, C.A. and at p. 415 of the report he came to the following conclusion:
“In those circumstances, it seems to me that this is plainly a case which comes within the old principle. The test is not whether these employers could reasonably have foreseen that a burn would cause cancer and that
he would die. The question is whether these employers could reasonably foresee the type of injury he
suffered, namely, the burn . . . Accordingly, I find that the damages which the widow claims are damages for which the defendants are liable.”
See also Bradford v. Robinson Rentals Ltd. [1967] 1 W.L.R. 337 at p. 346 and Hughes v. Lord Advocate [1963] A.C. 837, H.L. I therefore hold that the defendant ought to be made liable for the full extent of damage done to the plaintiff’s health, even though the missing of the surgery due to lack of blood was the factor which actually aggravated the injury.
I will now assess the damages. The principle as to the measure of damages in cases of physical injuries is not in doubt. The damages which the court must award are those which “so far as money can compensate, will give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act.” See Admiralty Commissioners v. S.S. Susquehanna [1926] A.C. 655 at p. 661, H.L.
How- ever, I prefer, in this particular case, to adopt the heads of damages as set out in H. West & Son v. Shephard [1964] of [1972] 2 GLR 30 A.C. 326 at p. 354, H.L. [p.37] of [1972] 2 GLR 30 per Lord Devlin and in British Transport Commission v. Gourley [1956] 2 W.L.R. 41 at p. 51, H.L. per
Lord Goddard.
The plaintiff is a woman of 46 years. The evidence of the doctor shows that she sustained a fracture of the right femur. She was on admission as an in-patient for eleven weeks. Thereafter, she was discharged but she continued her hospital treatment as an out-patient for another six weeks (see exhibit A). The doctor further said:
“My assessment was that she had incapacity of 15% on account of the one-inch shortening in the right leg and for pain and limitation of movement of the right knee. The 15% is permanent. The overlapping accounts for the shortening of the right femur. The knee at rest in a straight form is regarded as being 180o, and one to bend this knee at the knee-joint to an angle of 90o, the average knee of an adult can bend to 20o. So that since this woman’s knee only bent to 90o, there was a limitation of 70o of movement at the knee.”
The doctor then went on to say that:
“. . . when there is shortening in order to maintain upright posture the body compensates for the shortening and over a long period, abnormal stresses may be produced on both the affected hip and on the spine which may subsequently lead to osteo-arthritic changes.”
The medical report (exhibit A) says there is “one inch shortening of the right lower limb compared with the left, and there is half inch loss of girth in the right thigh due to wasting of the quadriceps.” The plaintiff has not fully recovered from the injuries. Her present state of health can best be described in her own words:
“I have not regained my former health. I cannot walk as I used to. I still feel pain in my right femur. I now limp on my right foot. When it is cold I feel great pains in my foot. When I walk I feel pains.”
It is therefore obvious that the plaintiff has suffered tremendous pain for a period of, at least, seventeen weeks (four months one week) and the pain must have been agonizing indeed. The pain has not ceased, and I am satisfied that it may persist and probably degenerate with age.
In the recent case of Dagomba v. Dagomba, Court of Appeal, 2 March 1970, unreported, the appellants were injured in a motor accident. The first appellant had a serious injury to his right thigh and “this resulted in the shortening of his right leg by two and a half inches.” He walked with “pronounced limp.”
The Court of Appeal awarded the said first appellant ¢2,000.00 for pain and suffering. The case under consideration is also an injury to the right leg and having regard to the present value of the cedi, I think ¢3,800.00 should be a fair and reasonable compensation for pain and suffering.
[p.38] of [1972] 2 GLR 30 The plaintiff did not lead evidence as to her loss of amenities of life. All the same, this should not deter the court from making some award under this head. In the Dagomba’s case referred to supra, the same situation arose and Apaloo J.A. (as he then was) who read the judgment of the court said:
“True, there is no evidence that he lost any amenities of life nor was evidence led of his mode of life. But this in no way inhibited this court in the case of another Dagomba man in the suit entitled Dagomba v. Dagomba, Court of Appeal, 27 January 1969, unreported., digested in (1969) C.C. 48 from awarding damages under this head. In all the circumstances, I would award the first appellant under this head, the same amount that was awarded in suit cited supra, namely. N¢100.00.”
The present case is even stronger than the Dagomba cases just cited because there is some evidence of the plaintiff’s mode of life. It is on record that she belongs to a spiritual church, called Bethany; and she often attends that church. It is common knowledge that in this country, dancing is not only one of the characteristic features of spiritual churches, but also forms part of the actual worship. With this deformity, and the pains, it is clear that the plaintiff will not have the pleasure of taking part, regularly, in such dances. I will therefore award her ¢400.00 for loss of amenities.
It appears to me that the nature of the injury suffered by the plaintiff will not have any adverse effect on her earning capacity. I will not therefore award her any damages for loss of prospective earning.
Nevertheless, she ought to be compensated for the loss of earnings for the seventeen weeks when she was receiving medical treatment, and for the cost of the blood tonic which she bought on the recommendation of the doctor. It must be remarked that the plaintiff’s evidence about her earnings and about the other expenses was not challenged. The plaintiff is a petty trader and at the time of the accident she was earning ¢28.00 a month as profit. I will therefore award her ¢119.00 for loss of income for the seventeen weeks.
She bought five bottles of blood tonic at ¢2.60 each and this amounted to ¢13.00. As an out-patient she was obliged to attend hospital four times in a week for a period of six weeks; and she spent ¢1.00 on transport every time she visited the hospital. Her transport expenses will, in the circumstances, amount to ¢24.00.
Accordingly, there will be judgment for the plaintiff for the sum of ¢4,356.00. The plaintiff will have her costs assessed at ¢500.00 inclusive of a fee to counsel.
DECISION
Judgment for plaintiff with costs.
