HIGH COURT, TAMALE
DATE: 11 MAY 1967
BEFORE: ANNAN J.
CASES REFERRED TO
(1) Baker v. Market Harborough Industrial Co-operative Society, Ltd. [1953] 1 W.L.R. 1472; 97 S.J.
861, C.A.
(2) France v. Parkinson [1954] 1 W.L.R. 581; [1954] 1 All E.R. 739; 98 S.J. 214, C.A.
(3) Price v. Price, The Times, 12 February 1954, C.A.
(4) Wing v. London General Omnibus Co. [1909] 2 K.B. 652; 78 L.J.K.B. 1063; 101 L.T. 411; 73 J.P.
429; 25 T.L.R. 729; 53 S.J. 713; 7 L.G.R. 1093, C.A.
(5) McGowan v. Stott (1930) 99 L.J.K.B. 357n.; 143 L.T. 217, C.A.
(6) Halliwell v. Venables [1930] All E.R. Rep. 284; 99 L.J.K.B. 353; 143 L.T. 215; 74 S.J. 264, C.A.
(7) Barkway v. South Wales Transport Co., Ltd. [1950] A.C. 185; [1950] 1 All E.R. 392; 114 J.P. 172;
66 T.L.R. (Pt. 2) 597; 94 S.J. 128, H.L.
(8) Ellor v. Selfridge & Co., Ltd. (1930) 46 T.L.R. 236; 74 S.J. 140.
NATURE OF PROCEEDINGS
ACTION by the plaintiff against the defendants for damages for injuries sustained by them in a motor
accident. The facts are set out in the judgment.
COUNSEL
E. O. Appiah for the plaintiffs.
E. D. Kom for the first and the third defendants.
H. P. Swaniker for the second and the fourth defendants.
[p.307] of [1967] GLR 306
JUDGMENT OF ANNAN J.
The plaintiffs claim damages for injuries suffered by them in a motor accident on the Tamale—Kumbungu road. The accident occurred at about 7 p.m. and there were two vehicles involved. The vehicles were travelling in opposite directions and the plaintiffs were in one vehicle sitting one behind the other at the extreme right-hand side. The only account given as to the accident itself is that of the plaintiffs.
In the statement of claim the plaintiffs set out several particulars of negligence. They also relied on the maxim res ipsa loquitur. It is quite clear that the evidence given by the plaintiffs showed that the two vehicles came into contact when they were passing by each other, This evidence was not challenged or contradicted by the defendants.
Apart from the evidence of the plaintiffs there is the evidence of the pleas of guilty of the drivers of the two vehicles to charges brought under regulation 31 (2) (a) of the Road Traffic Regulations, 1957 (L.N. 135 of 1957), namely that on 2 June 1965 on the Tamale—Kumbungu road they drove motor vehicles No. AT 5984 and AN 2521 the overall width of which exceeded the maximum width of 7ft. 6in. by four inches in each case. The plaintiffs relied on the evidence of the pleas of guilty as some evidence of negligence. The defendants did not admit negligence in their pleadings and did not call any evidence. From the pleadings the onus was on the plaintiffs to establish that the first and the second defendants, the drivers, were negligent. Neither plaintiff could tell what actually caused the accident. The first plaintiff said that the vehicles “grazed each other.” Apart from” this evidence there is nothing else as to the nature of the contact between the two vehicles. The plaintiffs rely on this evidence as the evidence of a collision between the two vehicles. Granted that these accounts, uncontradicted as they are, afford evidence of. a collision there is nothing else to show the kind of collision it was. The suggestion I take is that this was a head-on collision between two vehicles travelling in opposite directions. Such a suggestion could be made no doubt with a certain line of cases in mind, the leading case being that of Baker v. Market Harborough Industrial Co-operative Society, Ltd. [1953] 1 W.L.R. 1472, C.A. Apart from this case there are also such cases as France v. Parkinson [1954] 1 AU E.R. 739, C.A. and Price v. Price, The Times, 12 February
1954, unreported, C.A.
The issue of fact I have to decide is whether the plaintiffs have discharged the onus on them to prove negligence. Have they put before me such evidence as would justify a finding of negligence on the balance of probabilities?
[p.308] of [1967] GLR 306
Taking first the evidence of the collision as given by the plaintiffs the question is whether that is evidence of negligence in either the first or the second defendant or both. In Baker v. Market Harborough industrial Co-operative Society Ltd. (supra) a case of a head-on collision, it appears to me that the decision was influenced materially by the nature of the collision, i.e. a head-on collision, and the view formed by the trial court that the offside wheel of one or other vehicle or perhaps both had crossed the white line and hence the decision that it was more likely that both drivers were to blame than one only. I do not think that this case is any authority for a proposition that a collision per se affords evidence of negligence against one driver or the other or both. In this connection the case of France v. Parkinson [1954] 1 All E.R. 739, C.A. is of interest. In that case there was a collision at cross-roads of equal status in the middle of the cross-roads, each car being on its right side of the road. Although the decision in that case was that the inference to be drawn on the facts was that both drivers—in the absence of special circumstances—were negligent, the decision was influenced by matters other than the mere fact of collision on the highway.
Thus the court attached considerable importance to the statement made by the defendant soon after the collision that the two cars had met in the middle of the road. There was evidence concerning the position of the vehicles on the road. Indeed as Morris L.J. (as he then was) put it at p. 741: “The facts that were before the court, in my judgment, amounted to very much more than the mere fact that there had been a collision between the two motor vehicles . . . There was the evidence as to the plan, the nature of the cross-roads, and the damage done to the two motor cars, and of the statement made by the defendant.”
Again the court was concerned to point out that each case must be decided on its own facts. At p. 798 of Clerk and Lindsell on Torts (12th ed.), there is the following statement of the law: “The mere occurrence of an accident on a highway is no evidence of negligence on the part of a person in control of a vehicle involved in the accident.” The authority given for this proposition is Wing v. London General Omnibus Co. [1909] 2 K.B. 652 at p. 664, C.A. where Fletcher Moulton L.J. said: “Every vehicle has to adapt its own behaviour to the behaviour of other persons using the road, and over their actions those in charge of the vehicle have no control. Hence the fact that an accident has happened either to or through a particular vehicle
[p.309] of [1967] GLR 306
is by itself no evidence that the fault, if any , which led to it was committed by those in charge of that
vehicle.” This proposition has been explained and limited subsequently and particularly by Scrutton L.J. in McGowan v. Stott (1930) 143 L.T. 217 at p. 219, C.A. where he said: “Where both parties are moving and have a right to move, prima facie the mere fact that those moving bodies run into each other is not evidence of negligence.” I agree that there are several instances in which an occurrence of an accident on the highway could provide evidence of negligence in a driver of a motor vehicle and there are cases to support this proposition, i.e. where a motor vehicle overturned on the highway (Halliwell v. Venables (1930) 99 L.J.K.B. 353, C.A.); or where it leaves the road and falls down on an embankment (Barkway v. South Wales Transport Co., Ltd. [1950] 1 All E.R. 392, H.L.) or where it runs onto the pavement and hit a pedestrian in the back (Ellor v. Selfridge & Co., Ltd. (1930) 46 T.L.R. 236), or where an overtaking vehicle collides with another moving vehicle ahead of it.
It seems to me, however, that in all these cases there were particular facts proved in evidence other than the mere fact of the accident, which raised a presumption of negligence, and I do not think that those cases support a proposition that proof of a collision per se raises an inference or presumption of negligence in one or both drivers involved in the collision. In my view, evidence of a collision on the highway between two vehicles travelling in opposite directions at night cannot without more raise an inference or presumption of negligence against either or both drivers.
Turning now to the evidence of the excess width of the vehicles, the regulation under which the defendants were charged itself shows that a width of 7 ft. 10 ins. is not necessarily illegal. The illegality depends on the kind of vehicle concerned. Thus the maximum permitted width for an omnibus is 8 ft. and permission may be given for widths in excess of eight feet by the Director of Public Works. Excess width therefore per se cannot amount to evidence of negligence.
The case put forward by the plaintiffs fails in my opinion to discharge the onus on them to prove negligence and I dismiss it and I enter judgment for the defendants with costs of one hundred new cedis (N¢100.00) inclusive to the first and the third defendants and same costs to the second and the fourth defendants.
DECISION
Action dismissed with costs.
S. E. K.
