HIGH COURT, TAMALE
Date: 18 APRIL 1975
ATA-BEDU J
CASES REFERRED TO
(1) Vandyke v. Fender [1970] 2 Q.B. 292; [1970] 2 W.L.R. 929; [1970] 2 All E.R. 335; [1970] 1 Lloyd’s Rep. 320; & K.I.R. 854; [1970] R.T.R. 236, C.A.
(2) St. Helens Colliery Co., Ltd. v. Hewitson [1924] A.C, 59; [1923] All E.R. Rep. 249; 93 L.J.K.B. 177; 130 L.T. 291; 40 T.L.R. 125, 68 S.J. 163; 16 B.W.C.C. 230, H.L.
(3) Weaver v. Tredegar Iron & Coal Co., Ltd. [1940] A C. 955; [1940] 3 A.E.R. 157; 109 L.J.K.B. 621; 164 L.T. 231; 56 T.L.R. 813; 84 S.J. 584; 33 B.W.C.C. 227, H.L.
NATURE OF PROCEEDINGS
ACTION for damages for negligence wherein the defendants joined as a third party, the insurers under a workmen’s compensation policy providing for indemnity in favour of the defendants.
COUNSEL
Mumuni Bawumia for the plaintiffs.
E. O. Appiah for the defendants.
Attafuah (with him Djamson) for the third party.
JUDGMENT OF ATA-BEDU J.
This case involves a question of damages for personal injuries in claims made by the administrators of the deceased persons and the surviving injured persons. The deceased and the injured plaintiffs were at all material times employed as labourers by the defendants to collect and load vehicles with sand from the Sisi river near Nakpanduri village about 25 miles away from Gambaga. On 5 June 1971 they were being conveyed on a tipper lorry No. AF. 8209 owned by the defendants then in charge of one Abu Tanko as the defendants’ driver when from the Nakpanduri scarp, the lorry was driven so fast that it went off the roadway and fell into a ditch. As a result of this accident twelve of them died.
By their writ of summons the administrators of the deceased persons claim damages for themselves and others as dependants and also for the benefit of the respective estates of the deceased persons. By the statement of claim, the claims made in respect of the deceased persons are for: (1) loss of normal expectation of life, (2) loss and damage suffered by their dependants and (3) pain and suffering and physical injuries. In respect of the surviving plaintiffs the claims are for: (1) medical expenses, (2) damage to clothing, (3) loss of earnings from 5 June 1971 and (4) transport charges all as special damages. The general damages claimed are for: (1) pain and suffering, (2) physical injuries and (3) loss and damage.
The particulars of the injuries sustained by each of the injured plaintiffs, their special damages and the dependants for whose benefit the actions have been brought pursuant to the Civil Liability Act, 1963 (Act 176), have all been pleaded in paragraph (13) of the statement of claim. The particulars of the negligence
| alleged are: | |
| (i) | Driving the said vehicle off the road into ditch; |
| (ii) | Driving too fast; |
| (iii) | Failing to apply his brakes in time or at all or so to steer or control the said motor vehicle so as not to run off the road; |
| (iv) | Failing to have any or any proper look out; and |
| (v) | The plaintiffs will rely on the maxim “res ipsa loquitur.” |
The only admission made by the defendants in their statement of defence is the fact that the deceased persons and the surviving injured persons were on 5 June 1971 passengers on the defendants’ said motor vehicle No. AF 8209 then driven by Abu Tanko their servant or agent travelling on the Nakpanduri-Bawku road when the said vehicle went off the road into a ditch. They denied not only negligence on the part of the said driver but also the particulars of negligence, the injuries, the special damages and the dependants alleged.
By third party notices issued and served on 20 and 22 November 1972, the defendants have joined the Royal Exchange Assurance Co., Ltd., whose designation was in the course of the trial amended to read the “Guardian Royal Exchange Assurance Co., Ltd.,” as the first third party and the State Insurance Corporation as the second third party respectively, claiming to be indemnified against the plaintiffs to the extent that the damages come under the Workmen’s Compensation Act, 1963 (Act 174), in the case of the first third party and under the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958), in the case of the second third party on the ground that their liability to the plaintiffs has been covered by the terms of each of the policies of insurance issued to them.
The notice of motion filed on 14 December 1972, after entry of conditional appearance, for an order setting aside the proceedings against the first third party was withdrawn by a notice filed on 5 February 1973. No appearance was entered by or on behalf of the second third party.
By the statement of claim filed on 5 September 1973 and served on the solicitors for the first third party on 11 September 1973, pursuant to the order made on the summons for third party directions, the first third party was made aware of the nature of the plaintiffs’ claims against the defendants and the defendants’ entitlement to an indemnity in respect of damages to be paid if they were found liable.
The basis for the claim of the defendants against the first third party is alleged in paragraph (4) of the statement of claim to be an insurance contract entered into between the defendants and the first third party whereby
“in consideration of the premium then paid to the first third party, the first third party agreed to indemnify the defendants against all sums which they might be legally liable to pay for damages or compensation to any servant or in the case of death to the relatives of any servant for or in respect of injury to any such servant where (a) such injury arose out of or in the course of the employment of such servant with the defendants, or (b) as a result, the defendants became liable at common law; including law costs if any payable therewith.”
The rest of the averments in the statement of claim are:
“(5) The defendants are, among other things, contractors and at all material times were constructing some buildings at Gambaga.
(6) In the course of constructing the said buildings sand and some other materials had to be collected from a place just beyond the Nakpanduri scarp which was some considerable distance away from Gambaga and the building site.
(7) The injured plaintiffs and the deceased persons named in the writ were at all material times employed by the defendants as labourers, and at the material period their duties were to load
[p.28] of [1975] 2 GLR 25
the motor vehicles of the defendants at that place beyond Nakpanduri scarp.
(8) The said servants did at all material times reside at Gambaga and at other villages there around.
(9) It was the practice of the defendants to convey the labourers in their vehicles to the site where the sand was to be loaded. Although no servant was bound to be so carried they in general did join the defendant’s vehicles for the purposes aforesaid.
(10) On 5 June, 1971 the injured plaintiffs and the deceased persons mentioned in the plaintiffs’ statement of claim were being carried on the defendants’ motor vehicle from Gambaga to that place beyond the Nakpanduri scarp when the said motor vehicle then being driven by the defendants’ servant or agent did on the Nakpanduri scarp go off the road thus causing the injuries and the deaths to the defendants’ said servants.
(11) At all material times the said contract of insurance was subsisting and of full force and effect.”
After some argument on 3 February 1975, on the notice of amendment to the consolidated statement of defence both filed on 28 January 1975, the consolidated amended statement of defence was filed on 5 February 1975. In this statement of defence, the first third party, without admitting that the defendants’ driver was negligent, did not deny the averment in the defendants’ statement of claim that the plaintiffs claim the damages alleged against the defendants. What is contended by the first third party is that the plaintiffs’ claim grounded on the negligence of its insured’s servant or agent in the course of his employment is not covered by the Workmen’s Compensation Act, 1963, the liability under which alone is covered by the policy of insurance it had with the defendants and therefore the defendants are not entitled to be indemnified by it. It denies also that the injured plaintiffs and the deceased persons were workmen within the meaning of the Workmen’s Compensation Act. It contends that the defendants’ liability to the plaintiffs comes under the Motor Vehicles (Third Party Insurance) Act, 1958, which is the policy the defendants have with the second third party. It further contends that the injured plaintiffs and the deceased persons were not bound to be conveyed on the defendants’ vehicle which was not meant to carry passengers except under some form of agreement with the defendants. It says that its liability to the defendants is excluded because the liability of the defendants to the plaintiffs does not attach by virtue of any such agreement. No admission was made to the averments in paragraphs (5), (6), (7), (8), (10) and
(11) of the defendants’ statement of claim mentioned above and the defendants were put to the strict proof of the said averments.
I must say this, before anything else is said, that the strict proof required of these averments has been established without any doubt by the plaintiffs in the evidence. There is evidence that on the day of the accident the injured plaintiffs and the deceased persons had been employed as labourers and had worked for six days each earning 65 pesewas per day. The vehicle on which they were travelling from Gambaga to the
[p.29] of [1975] 2 GLR 25
river Sisi to collect sand was a tipper lorry and they were not charged any fares. This lorry was driven so fast down the Nakpanduri scarp that it went off the road and fell into a ditch. There is evidence undisplaced that all the injured plaintiffs and the deceased persons had their names recorded on the roll sheet or the records of the defendants and that their names were called out before the start of work every morning.
The first third party through its counsel actively participated in the trial and called one witness. Conceding, after the close of the case for the plaintiffs, that the evidence adduced has raised the principle of res ipsa loquitur and that the burden of showing by evidence the absence of negligence which shifts to the defendants could not be discharged, Mr. Appiah, counsel for the defendants, has offered no evidence. In my short recorded decision on 5 February 1975 on the question of liability I found the defendants vicariously liable to the plaintiffs in damages which remain to be considered.
As regards the third party proceedings, I gave judgment on 6 February 1975, for the first third party (as the defendants) and reserved my reasons which I now give. The liability of the first third party to indemnify the defendants (as the plaintiffs) depends upon the terms of the policy of insurance between them; neither the original nor a copy of which has been made available. The controversial provision in the said policy (which is of real importance and relevance and has been pleaded) runs as follows:
“If at any time during the period of insurance any employee in the insured’s immediate service shall sustain personal injury or decease [sic] arising out of and in the course of his employment by the insured in the business and if the insured shall be liable to pay any compensation for such injury either under law(s) set out in the schedule or at common law then subject to the terms exceptions and conditions contained herein or endorsed hereon the company will indemnify the injured [sic] against all sums for which the insured shall be so liable.”
What the court has, therefore, to decide is simply whether these labourers came by their injuries and deaths by the accident arising out of and in the course of their employment by the defendants.
The upshot of the defence of the first third party is that if the decision of the court is in the affirmative then the liability of the defendants to the plaintiffs is covered by the policy of insurance with the first third party but if in the negative then the defendants’ liability ought to be covered by the Motor Vehicles (Third Party Insurance) Act, 1958.
The determination of this issue depends upon the construction of the words “arising out of and in the course of his employment.” In the case of Vandyke v. Fender [1970] 2 Q.B. 292 at p. 293, C.A. it was held (as stated in the headnote) that the decisions under the Workmen’s Compensation Acts, 1897 to 1945,
“established conclusively that when a workman was injured while travelling to or from work in a form of transport provided by his employers on a public road or outside the work premises he was not
[p.30] of [1975] 2 GLR 25
‘in the course of his employment unless his terms of employment obliged him to travel in that way; and that as the plaintiff was not obliged to travel in the car provided, the injury sustained by him did not arise out of and in the course of his employment within the terms of the policy and the third party insurers were not therefore liable to indemnify the employers.”
Also in the same case at p. 305 on the interpretation of the same words this is what Lord Denning M.R. had to say referring to the cases of St. Helens Colliery Co., Ltd. v. Hewitson [1924] A.C. 59, H.L. and Weaver v. Treidegar Iron & Coal Co., Ltd. [1940] A.C. 955, H.L. as the leading cases most apposite:
“They show, to my mind quite conclusively, that when a man is going to or coming from work, along a public road, as a passenger in a vehicle provided by his employer, he is not then in the course of his employment-unless he is obliged by the terms of his employment to travel in that vehicle. It is not enough that he should have the right to travel in the vehicle or be permitted to travel in it. He must have an obligation to travel in it. Else he is not in the course of his employment.”
The basis of the argument of the first third party to clear the hurdle is the absence of any such obligation of the injured plaintiffs and the deceased persons to travel on the tipper lorry to and from the work site. There is no evidence that they were bound by any agreement to be conveyed on the vehicle. The concession by counsel for the defendants that there was no obligation on them to use the lorry as their only means of transport to and from the Sisi river work site is an admission of the fact that they had no contractual right to be on it but it was a matter of convenience and privilege to get them to the work site on time to work. The submission, therefore, on behalf of the first third party that since its policy with the defendants, which is a workmen’s compensation policy, does not cover the use of the vehicle by any employee who is not under any agreement or contract bound to use the transport, the defendants are not entitled to the indemnity sought is sound and admits of no argument.
Relying on and adopting the construction of these words in the cases mentioned (supra) it becomes apparent that the injured plaintiffs and the deceased persons sustained their injuries and came by their deaths not in the course of their employment. For the above reasons I was convinced and came to the conclusion that the claim of the defendants against the first third party failed and I accordingly gave judgment in its favour. [His lordship then went on to consider the question of damages.]
DECISION
Judgment in favour of the third party.
S. Y. B.-B.
