TAKYI v. DUA AND ANOTHER [1966] GLR 254

Division: HIGH COURT, SUNYANI

Date: 22 MARCH 1966

Before: HAYFRON-BENJAMIN J.

CASE REFERRED TO

In re Birchall; Wilson v. Birchall (1880) 16 Ch.D. 41; 44 L. T. 113; 29 W.R. 27, C.A. [p.255] of [1966] GLR 254

NATURE OF PROCEEDINGS

ACTION by next friend for damages against the defendants for personal injuries suffered by an infant as a result of the negligence of the defendants. The facts are sufficiently set out in the judgment.

COUNSEL

P. D. Anin for the plaintiff.

T. K. Aboagye for the defendants.

JUDGMENT OF HAYFRON-BENJAMIN J.

This is a running down action. By his writ of summons the plaintiff claims as against the defendants jointly and severally £G3,574 16s. damages for personal injuries, £G74 16s. of this represents special damages and £G3,500 is claimed as general damages. The plaintiff is an infant secondary school boy of eighteen years, attending the Koforidua Secondary School, and sues by his next friend and father Kwame Takyi.

The plaintiff ‘s case as appearing in his pleadings is that on 2 April 1965 at about 8.30 p.m. he was walking towards New Drobo along the grass verge bordering the off-side portion of the Japekrom and New Drobo road, when he was struck from behind by a taxicab No. AT 2812 driven by the second defendant who was travelling in the same direction along the same road towards New Drobo. The taxicab is owned by the first defendant, and was driven by the second defendant in the course of his employment as the driver and servant of the first defendant. It is the plaintiff’s case that the accident occurred as a result of the defendant’s negligence. The particulars of negligence given are:

(a) failing to keep a proper look out for the plaintiff, a pedestrian lawfully using the road;

(b) driving on the wrong side of the road, i.e. failing to drive on the on-side portion of the said road and colliding with the plaintiff who was then walking on the grass verge bordering the off-side of the road; and

(c) failing to slow down and steer clear of the plaintiff pedestrian.

In the alternative, the plaintiff relies on and pleads the doctrine of res ipsa loquitur. In the consequence of the second defendant’s negligence, the plaintiff sustained serious injuries to his head and leg. The defendants, by their defence admit that the plaintiff was hit by taxicab No. AT 2812, but deny that the second defendant was in the employ of the first defendant. They contend that the accident occurred because the second defendant who was in charge of the taxi swerved to the off-side to avoid knocking down a cyclist who suddenly crossed the road in front of the said vehicle. It was during this process that the defendant was knocked down.

There was not much denial during the trial that the accident occurred as a result of the negligence of the second defendant. The

[p.256] of [1966] GLR 254 taxicab he was driving was off the road on the right hand side of the road, while he should, if he had been driving carefully, have been on the left hand side or have given a reasonable explanation as to why he was on the right hand side. The second defendant did not give evidence at all. The presence of a cyclist was denied by the plaintiff. The police officer who came to the scene shortly after the accident was not cross-examined at all. There was therefore no suggestion to him that there was a cyclist around. Moreover when the second defendant was charged before the district court at Berekum on 3 May 1965 on two counts of careless driving and negligently causing harm to the plaintiff he admitted his negligence by pleading guilty to the charges. There has been no explanation why he pleaded guilty. I do not think there is any alternative open to me other than to hold that on the evidence it is abundantly clear that the accident occurred as a result of the negligence of the second defendant. There is evidence which is unchallenged that the second defendant was driving in the course of his duty as a taxi driver, and as a servant of the first defendant.

The real gravamen of the defence is as stated in paragraph (7) of the statement of defence. The defendants there plead that:

“the claim of the plaintiff was settled with the British India Assurance Co., Ltd., the insurers of the said vehicle No. AT 2812 through Mr. A. C. Kuma, the solicitor for the said insurance company acting for and on behalf of the defendants. One Mr. A. Munufie, solicitor then acted for and on behalf of the plaintiff. The plaintiff’s said solicitor agreed to accept the sum of £G200 from the first defendant’s said insurers in full and final settlement of all claims, losses, etc. suffered or to be suffered by the plaintiff as a result of the said accident. On or about 14 July 1965, the plaintiff in pursuance of the said agreement signed a discharge form accepting the sum of £G200 in full and final settlement of all claims, demands, losses, etc. suffered or to be suffered by the said plaintiff as a result of the said accident. On 26 November 1965, the said British India Assurance Co., Ltd. sent its cheque to the plaintiff’s solicitor in payment of the said sum of £G200. On 6 December 1965, the said cheque was returned to the defendants’ insurers as unacceptable.” The plaintiff in his reply denies this and says that his “solicitor wrote a letter marked ‘without prejudice’ to the said British India Assurance Co., Ltd. to start off negotiations with

[p.257] of [1966] GLR 254 a view to the settlement of the claim; and that in reliance thereupon, more written documents and oral communications passed between the parties which did not however end in a final settlement of the claim and/or acceptance of any compromise sum.”

The plaintiff contends that the said letter marked “without prejudice” together with all subsequent parts of the same correspondence on both sides and oral communications made by the parties’ solicitors during the said abortive negotiation are in law a privileged disclosure and inadmissible in evidence. The point thus raised in the pleadings is, if I may venture to say so, one of outstanding public and practical importance, but unfortunately I do not think it is necessary to consider it for the decision in this case. The plaintiff is an infant, and by Order 22, r. 9 of the Supreme [High] Court (Civil Procedure) Rules, 19541 it is provided that:

“(1) In any cause or matter in the Supreme Court and in any Admiralty action in which money or damages is or are claimed by or on behalf of an infant or a person of unsound mind suing either alone or in conjunction with other parties, no settlement or compromise or payment or acceptance of money paid into Court, whether before or at or after the trial, shall as regards the claims of any such infant or person of unsound mind be valid without the approval of the Court or a Judge.

(2) No money (which expression for the purposes of this Rule includes damages) in any way recovered or adjudged or ordered or awarded or agreed to be paid in any such cause or matter in respect of the claims of any such infant or person of unsound mind, whether by verdict or by settlement, compromise payment, payment into Court or otherwise, before or at or after the trial, shall be paid to the plaintiff or to the next friend to the plaintiff or to the plaintiff’s solicitor unless the Court or a Judge shall so direct.

(3) All money so recovered or adjudged or ordered or awarded or agreed to be paid shall be dealt with as the Court or a Judge shall direct and the said money or any part thereof may be so directed:—

(i) to be paid into the Supreme Court and to be invested or otherwise dealt with there:

(ii) to be paid into the Supreme Court and transferred to, or where the money has been paid into the

[p.258] of [1966] GLR 254

Supreme Court to be transferred to, the District Magistrate’s Court of the district in which the infant or person of unsound mind resides or such other District Magistrate’s Court as the Court or a Judge may think fit; or

(iii) to be otherwise dealt with.”

There are other provisions in the Order which are not relevant for our present purposes. The object of this rule is stated in the Annual Practice, 1962, Vol.1, p. 414 thus: “The object of this Rule is to require that all money claims by infants and patients should be made the subject-matter of proceedings even if only to obtain the sanction of the Court to the compromise or settlement of such claims or to the acceptance of money thereunder. Any compromise or settlement of claims by infants or patients or the payment of monies thereunder without the sanction of the Court under this Rule is made entirely at the risk of the other party.”

As Jessel M.R. stated in In re Birchall; Wilson v. Bitchall2 “The practice … has been to require not only that the compromise should be assented to by the next friend or guardian of the infant, but his solicitor should make an affidavit that he believes the compromise to be beneficial to the infant, and that his counsel should give an opinion that he considers it to be so.” The court, however, will consider for itself whether or not the compromise proposed will be for the benefit of the infant; but of course, it cannot force a compromise upon an infant against the opinion of his advisers.

In the present case, the infant has by his next friend rejected the compromise; his solicitor repudiated the compromise before he took out the writ. No benefit has been accepted by the infant under the alleged compromise. The court is also satisfied that the proposed settlement, in view of the circumstances of this case, is plainly not for the benefit of the infant. In the circumstances, I must reject the settlement (if any). I must add that I would have rejected the settlement in any case on the general principles of contract if there had been no such provisions in our rules of court. I must now proceed to consider the question of damages. I have considered this question and I award special damages of £G66 8s. and £G3,000 as general damages.

[p.259] of [1966] GLR 254

I direct that the £G3,000 be paid to the present solicitor for the infant plaintiff and it is directed that one-half of the general damages awarded, i.e. £G1,500 be paid into a deposit account of the Berekum Branch of Ghana Commercial Bank in the name of the infant plaintiff. It is further directed that the infant plaintiff be at liberty to draw out this sum on attaining the age of 21 years; of course his executor or administrator will be at liberty to draw this out at once in the event of the infant plaintiff dying before the age of 21 years. The sum remaining in the hands of the solicitor less any sum on which the said solicitor may have a lien for unpaid fees to be paid to the next friend of the plaintiff to be expended on the plaintiff. The plaintiff will be entitled to his costs which I assess at 250 guineas inclusive of 200 guineas counsel’s fee.

DECISION

Judgment for the plaintiff.

S. K. T.