WEST AFRICAN BAKERY v. MIEZAH [1972] 1 GLR 78
COURT OF APPEAL
Date: 26 OCTOBER 1971
Before: AZU CRABBE J.S.C., LASSEY AND SOWAH JJ.A.
CASES REFERRED TO
(1) Sorrie v. Robertson Ct.Jus. [1944] S.C. (J.) 95.
(2) Chaplin v. Hawes (1828) 3 C. & P. 554.
(3) Pratt v. Bloom, The Times, 21 October 1958, D.C.
(4) Clark v. Wakelin (1965) 109 S.J. 295.
(5) Borketey v. Achinivu, Court of Appeal, 31 January 1966, unreported; digested in (1966) C.C. 56.
(6) Wono v. Kyiafi, Court of Appeal, 3 July 1966, unreported; digested in (1967) C.C. 119.
(7) Loga v. Davordzi, Court of Appeal, 13 June 1966, unreported.
(8) Nye v. Nye, Supreme Court, 29 February 1964, unreported; overruled, Court of Appeal, 27
February 1967, unreported; digested in (1967) C.C. 75.
(9) Zacca v. C.F.A.O., Court of Appeal, 15 August 1969, unreported; digested in (1969) C.C. 156.
(10) The Susquehanna [1926] A.C. 655; 95 L.J.P. 128; 135 L.T. 1456; 42 T.L.R. 639; [1926] All E.R.
Rep. 124, H.L.
(11) The Admiralty Commissioner v. S.S. Chekiang (Owners) [1926] A.C. 637; [1926] All E.R. Rep.
144; 135 L.T. 450; 42 T.L.R. 634, H.L.
(12) Liesbosch, Dredger v. S.S. Edison [1933] A.C. 499; 102 L.J.P. 73; 7 S.J. 176; [1933] All E.R. Rep.
144, H.L.
(13) Building and Civil Engineering Holidays Scheme Management Ltd. v. Post Office [1966] 1 Q.B.
247; [1965] 2 W.L.R. 72; [1965] 1 All E.R. 163, C.A.
(14) Clippens Oil Co. v. Edinburgh and District Water Trustees [I 907] A.C. 291; 76 L.J.P.C. 79, H.L.
(15) The Llanover [1947] P. 80; [1948] J.R. 108; 177 L.T. 591; 63 T.L.R. 468.
(16) The Hebridean Coast [1961] A.C. 545; [1961] 2 W.L.R. 48; [1961] 1 All E.R. 82, H.L.
(17) The Argentino (1888) 13 P.D. 191; 58 L.J.P. 1; 59 L.T. 914.
(18) The Ikala [1929] A.C. 196; 98 L.J.P. 49; 140 L.T. 177.
(19) The Soya [1955] 1 W.L.R. 1246; 99 S.J. 834; [1955] 3 All E.R. 621.
(20) The Arpad [1934] P. 189; [1934] All E.R. Rep. 326; 103 L.J.P. 129; 152 L.T. 521; 50 T.L.R 505;
78 S.J. 534; 18 Asp. M.L.C. 510, C.A.
[p.81] of [1972] 1 GLR 78
NATURE OF PROCEEDINGS
APPEAL from a decision of Aboagye J. awarding the plaintiff damages for loss of his vehicle as a result of the negligent driving of the appellants’ driver. The facts are sufficiently stated in the judgment of Azu Crabbe J.S.C.
COUNSEL
R.S. Blay for the appellants.
K.E. Amuah-Sakyi for the respondent.
JUDGMENT OF AZU CRABBE J.S.C.
This is an appeal from a judgment of Aboagye J. dated 23 June 1969 in favour of the plaintiff in an action for damages for negligence. The plaintiff’s claim was for, “the sum of N¢2,600.00 for loss and damage to the plaintiff by the negligent driving of Louis Obialo, the servant or agent of the defendants.” The plaintiff’s case was that on 21 January 1967 his driver, one Benie Ansah, drove his Robur Commercial lorry No. WR 8584 from Takoradi towards Half Assini. When he had passed Kwesimintsim and was heading towards Apremdu he sighted the defendants’ V.W. van No. SG 5538 ahead of him. It was then parked on the near side of the Takoradi-Half Assini road, facing Half Assini. He sounded his horn and indicated by his off side direction indicator that he was going to overtake the van. As he approached the van and was about three yards to it, the driver of the van, without indicating his intention to move to his right, suddenly moved and turned to his right, and collided with his lorry. The lorry fell off the road and was damaged beyond economic repair. In his statement of claim the plaintiff alleged the following particulars of his claim:
(a) N¢1,950.00 being the estimated market value of vehicle No. WR 8584;
(b) N¢440.00 being loss of profits from date of collision to commencement of action;
(c) loss of profits thereafter at the rate of N¢120.00 per month.
The defendants denied liability for the claim, and in paragraph (3) of their statement of defence they
alleged, “that their servant driving Volks Wagon delivery van No. SG 5538 gave ample and sufficient warning of his intention to turn to the right and at a time when plaintiff’s servant driving commercial lorry No. WR 8584 was a good distance away and should, have avoided the collision if he had exercised due care and not driving at excessive speed.”
The defendants further averred in the statement of defence that, even if their driver was negligent, though this was denied, “the plaintiff’s servant was equally negligent and did contribute to any damage caused to the plaintiff’s vehicle.” The defendants counterclaimed from the plaintiff the sum of N¢515.70, being damages suffered by the defendants through the negligence of the plaintiff’s servant.
The case for the defendants was briefly, but fully, stated by the learned trial judge in the following
passage of his judgment:
[p.82] of [1972] 1 GLR 78
“Their case is that on the day of the accident their driver Louis Obialo drove their V.W. van No. SG 5538 towards Kwesimintsim Zongo to deliver bread to a customer there. After he had passed the Kwesimintsim lorry park and was about 60 yards to a branch road on his right into which he was to turn to reach the customer, he saw from his driving mirror the plaintiff’s lorry which was then about 100 yards away. He signalled with his hand and by his direction indicators his intention of turning to his right. He then shifted to the middle of the road leaving sufficient room on his left by which vehicles behind him could overtake him.
He again looked into his driving mirror when he was about eighteen yards to the branch road and when he reached that road he turned to his right to enter it. The plaintiff’s lorry which was being driven at a fast speed then hit the front off side door of the van and caused damage to the front off side portion of it including the door, head lamp, trafficator and part of the off side body.”
The law imposes a duty on every person who drives a vehicle on the highway to use reasonable care to avoid causing damage to other vehicles or persons who are also on the high way. And every person who so drives ought to observe the rules of the road as stated in the Road Traffic Regulations. In the present case the relevant rules would be found in the Road Traffic Regulations, 1957 (L.N. 135), reg. 46 of which provides as follows:
“Every motor vehicle shall be driven on the left or near side of the road,1⁄4
(2) Every motor vehicle when overtaking traffic proceeding in the same direction shall pass such traffic on the right or off side thereof: Provided that a motor vehicle may overtake and pass upon the left of another vehicle when the vehicle being overtaken is about to turn to the right and the driver has signalled accordingly,1⁄4 (3) When one motor vehicle is being overtaken by another the front vehicle shall give way by drawing to the left or near side of the road so far as is reasonably possible to allow the overtaking vehicle to pass, and shall not increase speed. In all cases a motor vehicle shall be driven so as to give as much space as possible for the passing of other traffic.” Failure to observe these rules is prima facie evidence of negligence: see Chaplin v. Hawes (1828) 3 C. &
P. 554.
The question whether a particular driver on the highway was exercising that degree of care and attention which a reasonable and prudent driver would exercise in any particular circumstances is one of fact. In this present case the learned trial judge reviewed the evidence for both the plaintiff and the defendants and referred to two cases, Sorrie v. Robertson Ct.Jus. [1944] S.C. (J.) 95 and Pratt v. Bloom, The Times, 21 October 1958, D.C., which, in his view were decisive of the points raised before him. The actual reports of these cases are not available in the Supreme Court library,
[p.83] of [1972] 1 GLR 78 but they have been cited with sufficient particulars in the Bingham’s Motor Claim Cases (5th ed.) (1964) at pp. 168 and 191 respectively. The facts of Sorrie v. Robertson (supra) appear to be almost the same as the present case, and there it was held that, the driver of a vehicle who intends to turn right but with knowledge that he is being overtaken by another vehicle, has a duty (1) to give signal in the appropriate manner that he is about to turn across the road to his right, and (2) to observe that his signal has been appreciated by the vehicle approaching from behind.
In Pratt v. Bloom (supra) Streatfied J. held that the duty of a driver changing direction is (1) to signal, and (2) to see that no one was incommoded by his change of direction. And in Clark v. Wakelin (1965) 109 S.J. 295 which is also cited in Bingham’s Motor Claim Cases (6th ed.) (1968), p. 74, but not referred to by the learned trial judge, it was held that a driver was entitled to assume that he could overtake without danger if what he was overtaking gave not the slightest sign that it was going to do something other than what another ordinary careful motorist or cyclist might expect.
After reviewing the whole evidence, the learned trial judge, no doubt, bearing in mind the principles
enunciated in the two earlier cases cited in this judgment, expressed his conclusions on the issue of
negligence in the following passage of his judgment:
“In the instant case there is evidence from the plaintiff’s driver and his mate that they did not see the
defendants’ driver signal his intention to turn to his right. That means that even if the defendants’ driver signalled his intention of turning to the right the plaintiff’s driver did not observe it. The defendants’ driver had seen the plaintiff’s driver approaching him at a fast speed from behind and he should therefore have looked again into his driving mirror just before he turned and made sure that the signal he gave, granting that he gave one, had been observed by the plaintiff’s driver. This he failed to do. If he had looked in his driving mirror just before he turned he would have seen that the plaintiff’s lorry was overtaking him and he would not have turned to cause the collision. The defendants’ driver is therefore guilty of negligence.”
On the contributory negligence alleged by the defendants the learned trial judge concluded as follows:
“In this case, however, I am not satisfied with the evidence of the defendants’ driver and his assistant that the former signalled to the plaintiff’s driver his intention to turn to the right before he turned. My finding is that the defendants’ driver did not observe the approach of the plaintiff ‘s lorry at all and he did not therefore give any signal before he turned to his right. If he had observed it approaching him at a great speed, as he described, I am sure he would not have turned to his right in the way he did. Common sense would in such a situation have dictated to him to wait for the plaintiff’s driver either to overtake him or to stop behind him before he turned. I therefore [p.84] of [1972] 1 GLR 78 absolve the plaintiff’s driver from any accusation of contributory negligence.”
On the issue of damages the learned trial judge declared himself bound by the decision of the former
Supreme Court in Borketey v. Achinivu, Supreme Court, 31 January 1966, unreported; digested in (1966) C.C. 56 which reaffirmed the common law principle that where a chattel is completely destroyed or damaged beyond repair, the measure of damages is the value of the chattel together with any consequential loss flowing from the destruction of the chattel. By this principle, said Apaloo J.S.C. with whose judgment the other members of the court (Sarkodee-Adoo C.J. and Siriboe J.S.C.) concurred.
“where the chattel is a private car which is permanently lost to its owner the consequential loss will be the cost of hiring alternative transport until the procurement of a new car and where the car is a taxi, the consequential loss will be the loss of earnings until such time that another taxi-cab can reasonably be obtained.” Apaloo J.S.C. then continued his judgment:
“Accordingly, in my judgment, the plaintiff was entitled not only to the market value of the taxi van at the date of the accident, but also to the profits he would have made had the car remained on the road. The question to be determined therefore is: For what length of time is the plaintiff entitled to recover, from the respondents, his loss of earnings? I think in all the circumstances of this case, the plaintiff is entitled to recover from the respondents, his loss of earnings from the date of the accident to the day of judgment.”
Following the authority of the Borketey case, the learned trial judge said:
“The plaintiff in this case is therefore entitled to recover his loss of earnings from the date of the accident up to the date on which he could have replaced his lorry. There is evidence that the plaintiff has had no money since the accident to buy another lorry. Although Mr. Polley suggested to him that he was affluent and he could therefore have easily replaced his damaged lorry that suggestion was not based on any established fact and must be rejected. He is therefore entitled to recover loss of earnings up to today, the day of judgment.”
Accordingly, the learned trial judge gave judgment for the plaintiff against the defendants for the sum of N¢5,011.33, together with costs assessed at N¢300.00, and dismissed the defendants’ counterclaim.
The issues settled for the trial can be reduced to three main heads:
(1) Whether the defendants’ driver was negligent.
(2) Whether the plaintiff’s driver was guilty of contributory negligence.
(3) The claim for damages by both parties
The first and second issues are pure question of fact; the plaintiff’s witnesses gave one version of the
accident, and the witnesses for the [p.85] of [1972] 1 GLR 78 defendants gave a different version. The learned trial judge, who heard the evidence and saw how the witnesses gave their evidence, accepted the evidence for the plaintiff, and clearly rejected the defendants’ version of the accident. When the facts are in dispute, and the decision of the trial judge is based upon his estimate of the credibility of witnesses who gave evidence before him, there is a well-known principle that the Court of Appeal must, in order to reverse his decision, not merely entertain doubts whether the decision of the court below is right, but must be convinced that it is wrong: See Wono v. Kyiafi, Court of Appeal, 3 July 1967, unreported; digested in (1967) C.C. 119.
In this appeal five grounds of appeal were filed, and the four grounds which impugned the learned trial judge’s findings on negligence and contributory negligence were in these terms:
“Grounds of appeal
(a) Because the judgment of the court was wholly against the weight of evidence.
(b) Because the court failed to consider the report on the accident and the measurements taken at the scene of the accident. (c) Because the court erred in its inference of negligence from the damage sustained by the two vehicles involved in the accident. (d) Because the court was wrong in holding that the plaintiff’s vehicle was not being driven at excessive speed having regard to the distance travelled by the said vehicle before finally going off the road.”
I listened with great interest and attention to the able argument advanced by Mr. Blay in support of these grounds of appeal, but I could not be convinced that the learned trial judge’s findings on the issues of negligence and contributory negligence were wrong. These findings are amply supported by the evidence, and to disturb them is to usurp the functions of the trial court, which I am not prepared to do. Accordingly, grounds (a), (b), (c) and (d) must fail.
The last ground of appeal (ground (e) ) is stated in these terms: “(e) Because the damages awarded by the court were excessive and far beyond what was proved by the plaintiff at the trial.” Arguing this ground, Mr. Blay submitted that, having regard to the condition of the vehicle, the learned trial judge was wrong in awarding mesne profits of N¢120 a month, and that the claim for mesne profits was unsubstantiated.
With regard to the Borketey case, Mr. Blay argued that the decision of the former Supreme Court in that case with regard to loss of profit was unreasonable, and that this court ought not to follow it. We at once drew Mr. Blay’s attention to article 109 (2) of the Constitution, 1969, by virtue of which the Court of Appeal is bound by its own previous decisions and by those of its predecessor on questions of law. But if the Borketey case is binding on this court, I cannot see how we can refuse to follow it merely because we consider that decision unreasonable. Mr. Amuah-Sakyi, counsel for the plaintiff, referred to article 125 (2) and submitted that the exception in [p.86] of [1972] 1 GLR 78
article 104 (2) does not apply to the Court of Appeal. What I understand Mr. Amuah-Sakyi to mean is that the principle of flexibility of precedent introduced in article 104 (2) is not meant to apply to the Court of Appeal established under the 1969 Constitution. Article 125 (2) provides as follows:
“The Court of appeal established under the provisions of clause (4) of article 102 of this Constitution, shall be the successor to the Court of Appeal of the Supreme Court of Judicature in being immediately before thecoming into force of this Constitution; and accordingly the Court of Appeal as established by this Constitution shall be bound to follow the decisions on questions of law binding on the Court of Appeal as it existed immediately before the coming into force of this constitution.”
My understanding of article 125 (2) is that this court is the successor of the Court of Appeal established under paragraph 1 (a) of the Courts Decree, 1966 (N.L.C.D. 84), and, accordingly, any decision on questions of law binding on the Court of Appeal, as it existed on 28 August 1969 is also binding on this court. By paragraph 2 (3) of the Courts Decree, 1966 (N.L.C.D. 84), the Court of Appeal established under that Decree “is bound to follow its own previous decisions on questions of law.” This Court of Appeal was to all intents and purposes a successor of the Supreme Court created under the Constitution, 1960; see paragraph 92 (2) of N.L.C.D. 84. The decision in the Borketey case was given by the Supreme Court created under the 1960 Constitution, and by article 42 (2) of that Constitution the Supreme Court was “in principle bound to follow its own previous decisions on questions of law “ The expression “The Supreme Court shall in principle be bound to follow its own previous decisions on questions of law” has been interpreted both judicially and extra-judicially. In his invaluable article under the title “Judicial Precedent in Ghana” (1966) 3 U.G.L.J., pp. 160-161, Mr. Justice Ollennu writes:
“Now what is the proper interpretation to be given to the words ‘shall in principle be bound to follow its own previous decisions on questions of law’? Are they to be interpreted in the same way as the principle of stare decisis as operates in England in the House of Lords or the Court of appeal, namely, that the Supreme Court has no option but to follow its previous decision even though it is manifestly wrong unless it can show that that previous decision was given per incuriam? Our view is that the words ‘in principle’ are intended to create an elastic rule, to save the supreme Court in embarrassing situations and to enable it to re-examine its own previous decision to correct or differ from it when it finds such decision to be either manifestly wrong, not only because it was given per incuriam, but because of inconsistency with some principle of law or custom, and is therefore a decision which for some good reason or the other should not be followed. In our view the Article lays down a flexible rule intended to enable the court to mould and develop the law, the [p.87] of [1972] 1 GLR 78 common law no less than the customary law, to meet the needs of economic and social changes which are taking place in our new and developing nation, without the necessity to resort to Parliament each time to rectify an error in the law brought about by a wrong decision.”
In Loga v. Davordzi, Court of Appeal, 13 June 1966, unreported, I expressed this view:
“Article 42 (4) of the Constitution of Ghana declares that the Supreme Court ‘shall in principle be bound to follow its own decisions on questions of law.’ To my mind, the words, ‘in principle’ connote some flexibility in the application of the doctrine of stare decisis by this court, which cannot regard itself as absolutely bound by its own previous decisions … The merit of this less strict rule of precedent is that it enables the court to mould the law and to adapt it to the changing conditions of society. In such a fast developing country as Ghana I think the framers of the Constitution must have had the merits of the flexible rule in view.
But the flexible rule of stare decisis does not mean that the Supreme Court should start, in every case, to speculate on every ground on which a previous decision was based, and reverse its recent and
well-considered decisions on controversial questions. The maxim interest reipublicae ut sit finis litium is based on good sense, and it is therefore important that like cases must be decided alike, so that there must be stability in the law. It follows, therefore, that this court like the Privy Council, must feel strongly disposed to adhere to its previous decisions (see Fatuma Binti Mohamed Bin Salam v. Mohamed Bin Salim [1952] A.C.
1). It must only deviate from its previous decisions when the previous decision is manifestly wrong, or in exceptional circumstances. I apprehend that ‘exceptional circumstances’ means that there are compelling reasons for the Supreme Court to depart from its own previous decision. I also think that the Supreme Court can depart from its previous decision in matters in which public policy is concerned, for as Lord Watson said in the Nordenfeldt case [1894] A.C. 535 at p. 553, public policy decisions ‘cannot possess the same binding authority as decisions which deal with and formulate principles which are purely legal.’ Further, I think that the Supreme Court is at liberty to get rid of a previous decision which is out of step with the social philosophy of the day, or which has been rendered obsolete by subsequent legislation.”
In Loga v. Davordzi (supra) the question at issue was the proper construction of rule 10 (1) and (4) of the Supreme Court Rules, 1962 (L. I. 218), and in that case the former Supreme Court refused by a majority to follow its own previous decision on the same issue in Nye v. Nye, Supreme Court, 29 February 1964, unreported. In 1967, a full bench of the Court of Appeal established under the Courts Decree, 1966 (N.L.C.D. 84), reconsidered the interpretation of rule 10 (1) and (4) in Nye v. Nye, 27 February 1967, unreported; digested in (1967) C.C. 75 and expressly [p.88] of [1972] 1 GLR 78
overruled the previous decision of the former Supreme Court in Nye v. Nye (supra).
It seems clear that the former Supreme Court was not absolutely bound to follow its decision in Borketey case neither was its successor, the Court of Appeal established under the Courts Decree, 1966 (N.L.C.D. 84). This court can refuse to follow the Borketey case on the same grounds that its predecessor would.
The present Court of Appeal, in my opinion, is not bound to follow its own previous decision which is
demonstrated to be manifestly wrong in the sense that it was given per incuriam, or that the principle enunciated in the previous decision is patently inconsistent with a well-established principle of the common law.
In the Borketey case, a taxi-cab belonging to the plaintiff was extensively damaged in an accident caused by the negligence of the defendant’s driver, and the taxi-cab was written off as a total loss. The plaintiff claimed against the defendants jointly and severally the sum of £G766 (N¢1,32.00) being as to (i) £G550 (N¢1,100.00) value of the taxi-cab, (ii) £G204 (N¢408.00) mesne profits on the plaintiff’s vehicle at £G3 (N¢6.00) per diem for 68 days and (iii) towing charges. The plaintiff further claimed mesne profits till the date of judgment. It would appear from the pleadings that the defendants, admitted negligence, and the only issues tried were (a) the pre-accident market value of the taxi-cab and (b) whether the plaintiff was entitled to mesne profits, and, if so, how much per day. On the evidence, the trial judge (Mills-Odoi J. (as he then was) found that the pre-accident value of the plaintiff’s taxi-cab was £G500 (N¢1,000.00), and also that the expenses incurred in towing the taxi-cab amounted to £G12 (N¢24.00).
On the second issue the trial judge, after quoting passages from well-known textbooks on measure of
damages relating to damage to chattels, and from judgments in admiralty cases, arrived at the conclusion that the plaintiff was not entitled to loss of profits or mesne profits. And, accordingly, he gave judgment for the plaintiff for only £G512 (N¢1,024.00) on his claim, together with costs.
The plaintiff appealed against that part of the judgment which dismissed his claim for loss of earnings to the former Supreme Court. In the judgment of the court read by Apaloo J.S.C., it was said:
“If the view of law which found favour with the learned judge be right, it would be more profitable for a wrongdoer to destroy a person’s chattel than merely damage it. It would also, in any event, be impossible to reconcile with the proposition of law which Lord Sumner laid down in the Admiralty Commissioners v. S.S. Chekiang, [1926] All E.R. 114, H.L. and which has since been regarded as good law, namely, ‘The dominant rule of law is the principle of restitutio in integrum and subsidiary rules can be justified only if they give effect to that rule.’ Differently put, the principle appears to be that the plaintiff is entitled to receive as damages such a sum of money as will place him in as good a position as he would have been if the accident had not occurred.” [p.89] of [1972] 1 GLR 78
Apaloo J.S.C. then referred to the textbooks and the judgment referred to in the judgment Of Mills-Odoi J. and made observations which implied that the trial judge must have misapprehended the law. Apaloo J.S.C. said:
“I have read the cases from which the learned judge quoted extracts and in so far as it is possible to extract from them a ratio decidendi, it is to the effect that the measure of damages in the case of a vessel totally lost by collision, is her pre-accident value together with a sum as will represent a profit in current but not future charters. To the same effect is the passage which the learned judge relied on in Charlesworth on Negligence.
I find nothing in the judgment or in the text-book statement of the law which lends colour to the proposition of law which was put forward by the respondents and affirmed by the learned trial judge.” After these observations, Apaloo J.S.C. finally rejected the relevant conclusions of Mills-Odoi J. as appears in the following passage:
“I think the learned judge’s view of the law was wrong and indeed the cases which I have examined stand as eloquent testimony to this. In my opinion, the true rule of law is what the learned judge himself quoted from Charlesworth on Negligence, to wit: ‘Where a chattel is completely destroyed or so damaged as not to be worth repairing, the measure of damages is the value of the chattel together with any consequential loss following on the destruction of the chattel.’ By this principle, where the chattel is a private car which is permanently lost to its owner, the consequential loss will be the cost of hiring alternative transport until the procurement of a new car and where the car is a taxi, the consequential loss will be the loss of earnings until such time that another taxi-cab can reasonably be obtained.
Accordingly, in my judgment, the plaintiff was entitled not only to the market value of the taxi-cab at the date of the accident, but also to the profits he would have made had the car remained on the road.” The next important question that the court in the Borketey case decided was the length of time that the plaintiff would be entitled to claim for loss of profits. It was said that had the plaintiff purchased a taxi-cab of comparable kind the next day after the accident and commenced work immediately, he would not have lost his earnings for so long. But, as the court found (i) that the defendants did not pay nor offer to pay the plaintiff the pre-accident value of the taxi-cab, and (ii) that there was no evidence of the financial position of the plaintiff so as to determine whether he could immediately have replaced his destroyed taxi-cab it was therefore held that in all the circumstances the plaintiff was entitled to recover from the defendants, his loss of earnings from the date of the accident to the day of judgment. [p.90] of [1972] 1 GLR 78
Whilst preparing this judgment I had the good fortune of discovering the case of Zacca v. C.F.A.O., Court of Appeal, 15 August 1969, unreported; digested in (1969) C.C. 156, which was decided by the
predecessor of this court and which I shall hereafter refer to as the Zacca case. This case was not cited to Aboagye J. neither was it referred to by counsel in this court. In the Zaaca case the plaintiffs brought an action claiming from the defendant balance of instalments due under a hire-purchase agreement with the defendant for the sale of a tractor, and the costs of “work and labour done and materials supplied to the defendant.” The defendant was, to the knowledge of the plaintiffs, only nominal party, the real party being one B.M. Zacca who joined as third party. B.M. Zacca did not dispute liability under hire-purchase agreement, but counterclaimed for damages for the wrongful seizure of the tractor by the plaintiffs and for breach of contract. The trial judge gave judgment on the counterclaim in favour of the third party and awarded him damages. The plaintiffs appealed, and the third party also cross-appealed against the view expressed by the trial judge that the third party was under a duty to mitigate the damage done to him by the plaintiffs’ breach, and against the smallness of damages awarded. Delivering the leading judgment of the Court of Appeal, Akufo-Addo C.J., as he then was, whilst affirming the principle of restitutio in integrum as applied in the Borketey case, expressly disapproved of the statement in that judgment that a plaintiff is entitled to recover from a tortfeasor, who has through accident destroyed the plaintiff’s chattel, his loss of earnings from the date of the accident to the date of judgment. The learned Chief Justice said:
“The only aspect of that judgment that can be open to criticism is the period for which the consequential loss was estimated. It does seem to me that in identifying the period with reference to the date of judgment in the court below the decision introduces an element in the calculation of damages which is fundamentally uncertain and wholly beyond the ability of the parties to influence. The saving grace, however, is that the period does not appear to me to be unreasonable, and must not be taken to lay down any general principle; it must, that is, be taken to be specifically applicable to the particular circumstances of that case.”
But more important in this respect is the view taken by Apaloo J.A. as he then was, who had in the
Borketey case laid down the principle as to measure of damages in a claim for consequential loss. He said:
“I do not know that the principle of that case, namely, the wrongdoer must pay the full value of a chattel irreparably damaged by his wrong together with any consequent loss suffered thereby has ever been doubted.
It would seem that the decision in the Borketey case was taken to lay down that in the case of a car which is totally damaged, the tortfeasor must pay not only its pre-accident value but the loss of earnings till the date of judgment, or until an offer of reparation was made. I entirely disaffirm any such principle.” [p.91] of [1972] 1 GLR 78 Apaloo J.A. then continued:
“In the Borketey case the plaint was disposed of in the comparatively short time of just over three months from the date of the accident. It was, in the circumstances not unreasonable to use that period as a yard-stick for computing the loss of earnings. It would have been unreasonable to use it as a measuring rod, if the time lag between the date of the accident and judgment had been, say, three years. So, in the end, the question: For what length of time loss of earnings should be paid, must depend on the circumstances of each particular case. It would, I think, be difficult, if not impossible, to lay down an objective criterion a priori.”
There can be no doubt, therefore, that the principle in the Borketey case as to the assessment of
consequential loss where a taxi-cab is destroyed was partially rejected in the Zacca case by the Court of Appeal created under N.L.C.D. 84, the predecessor of this court. I am happy to say that I also share the view that that part of the decision in the Borketey case was contrary to principle and therefore wrong.
Whether the Zacca case itself also applied the correct principles in the assessment of damages will, I
think, become clear on a consideration of the authorities in this appeal. It is well-settled that the principle which governs the assessment of damages in a collision action in admiralty cases is the same as that which applies in a common law action for the destruction or conversion of a chattel: per Viscount Dunedin in The Susquehanna [1926] A.C. 655 at p. 661, H.L.
In ground (e) of his notice of appeal the appellant complains about the quantum of damages. The grounds upon which this court will interfere with the assessment of damages by a trial judge were carefully stated by Akufo-Addo C.J. in the Zacca case in his judgment as follows:
“In any case the question of damages is a matter entirely for the trial court, and unless it is proved on appeal that the trial court applied a wrong principle of law or applied wrongly a correct principle or was improperly influenced by considerations outside the scope of the dispute before him or, on a comprehensive view, that the estimate of damages was unreasonable, a court of appeal will be loath to interfere with an award.”
The question now is whether the damages awarded in the present case had been properly calculated by the learned trial judge. The first limb of the principle in the Borketey case, in so far as any clear principle can be discovered, which the learned trial judge applied, was approved in the Zacca case. In the Zacca case Akufo-Addo C.J. said he did not see how wrong was the limb of the principle in the Borketey case and he went on to say:
“The decision proceeded on the well-known principle stated in the English case of Admiralty Commissioners v. S.S. Chekiang [1926] All E.R. Rep. 114, namely, ‘The dominant rule of law in the principle of restitutio in integrum and subsidiary rules can be justified only if they [p.92] of [1972] 1 GLR 78 give effect to that rule,’ and also on the authority of the Nigerian case of African and Continental Bank Ltd. v. Oladapo (1951) 13 W.A.C.A. 285.”
In the Borketey case, Apaloo J.S.C. also quoted the dictum, which, with respect, has been erroneously
attributed to Lord Sumner in the Admiralty Commissioners v. S.S. Chekiang (Owners) (supra), and stated the principle thus: “Differently put, the principle appears to be that the plaintiff is entitled to receive as damages such a sum of money as will place him in as good a position as he would have been if the accident had not occurred.” I agree that in all cases of damage to a chattel “the dominant rule of law” is the principle of restitutio in integrum, but that principle cannot be isolated from the “subsidiary rules.” In my view, stating the principle of restitutio in integrum in such broad terms simply means that the tortfeasor is liable for all the consequences of his wrongdoing. This appears to be the basis of the decisions in the Borketey case and the Zacca case. Thus in the Zacca case, Akufo-Addo C.J. said that the wrongdoers must accept all the consequences that flow from their wrongful act.” With the greatest respect, I do not think that this is correct, as I shall endeavour to show presently.
At the trial in this case the learned trial judge, after considering the principle of restitutio in. integrum as stated in the Borketey case, found first that the pre-accident value of the lorry was N¢1,950.00, and he allowed the plaintiff that amount; secondly, with regard to loss of earnings the learned trial judge accepted N¢120.00 as a reasonable monthly net income from the plaintiff’s vehicle, but he found that with the passage of time, the maintenance costs would rise with a consequent decrease in its income.
Consequently, he allowed the plaintiff’s claim for loss of earnings at the rate of N¢120.00 for the first
twelve months of the accident, beginning 1 February 1967; N¢100.00 a month for the next twelve
months, and N¢80.00 a month for the remaining four months and three weeks. He also allowed the
plaintiff ten days’ loss of earnings in January 1967 at the rate of N¢120.00 a month. The total loss of
earnings he adjudged recoverable from the defendants amounted to N¢3,061.33. This was added to the pre-accident value of the vehicle, and the defendants were adjudged to be liable for N¢5,011.33. In deciding that the plaintiff was entitled to his loss of earnings from the date of the accident to the date of judgment, the learned trial judge made it quite plain in his judgment that he had been influenced by the view taken in the Borketey case that the inability of the plaintiff to replace his vehicle within reasonable time due to his financial position was a factor to take into consideration. This view was given approval in the Zacca case.
There can be no doubt that by including in the total damages a figure representing loss of earnings from the date of the accident to the date of judgment, the learned trial judge fell in error, and therefore his assessment of the damages can be set aside on that ground alone.
Appeal to this court is “by way of rehearing,” and having rejected the award made by the learned trial
judge as an entirely erroneous estimate, [p.93] of [1972] 1 GLR 78 we, that is if my conclusion as to the learned trial judge’s assessment of the damages is accepted by the rest of this court, ought to make our own assessment. With very great respect to the distinguished judges who took part in the judgments in the Borketey case and the Zacca case, I do not think that these cases afford safe guidance in assessing compensation for the financial loss resulting from the total destruction
of a vehicle due to negligence of a wrongdoer. The Zacca case was not a claim for loss resulting from
either damage to or total destruction of a chattel, neither was it a claim for conversion. Both the claim and counterclaim in that case were founded upon breaches of the hire-purchase agreement, and the damages claimed sounded only in contract.
In the case of damage to, or loss of, property, the broad general principle for the assessment of damages is that of restitutio in integrum, as stated by Lord Wright in the classic case of the Liesbosch, Dredger v. S.S. Edison [1933] A.C. 449. Lord Wright said at p. 459, H.L.:
“The substantial issue is what in such a case as the present is the true measure of damage. It is not questioned that when a vessel is lost by collision due to the sole negligence of the wrongdoing vessel the owners of the former vessel are entitled to what is called restitutio in integrum, which means that they should recover such a sum as will replace them, so far as can be done by compensation in money, in the same position as if the loss had not been inflicted on them, subject to the rules of law as to remoteness of damage.”
More recently Lord Denning M.R. also explained the principle in Building and Civil Engineering
Holidays Scheme Management Ltd. v. Post Office [1966] 1 Q.B. 247, C.A. but in its application to
bailment. He said at pp. 261-262:
“At common law in a case of bailment, the general principle is restitutio in integrum, which means that the party damnified is entitled to such a sum of money as will put him in as good a position as if the goods had not been lost or damaged. This is subject, however, to the qualification that the damages must not be too remote, that is, they must be such damages as flow directly and in the usual course of things from the loss or damage, see The Argentino (1888) 13 P.D. 191, C.A.”
The significant point in the application of the principle of restitutio integrum which, with all due
deference, did not engage the attention of the courts in both Borketey and Zacca, is the qualification of the general rule that damage which is too remote is not recoverable. As Lord Wright said in Liesbosch, Dredger v. S.S. Edison (supra) at p. 460:
“The law cannot take account of everything that follows a wrongful act; it regards some subsequent matters as outside the scope of its selection, because ‘it were infinite for the law to judge the course of causes,’ or consequences of consequences … In the varied web of affairs, the law must abstract some consequences as relevant, not perhaps on grounds of pure logic but simply for practical reasons.”
[p.94] of [1972] 1 GLR 78 In applying the principle of restitutio in integrum the court will first have to decide the value of the thing damaged or destroyed; that is, its value to the owner at the time and place of the damage or destruction.
The court will then consider the use to which, but for the wrong, he would have had of the thing and what he would have earned by its use. For many years the law on the recovery of loss of profits resulting from damage to property was in an unsatisfactory state due largely to the influence of Dr. Lushington, and the practice of referring to the admiralty registrar questions on measurement of damages. The development of the case law is fully dealt with in Mayne and McGregor on Damages (12 ed.), pp. 586-590, paras.
676-679, and I do not think any further examination of the cases is necessary in this judgment. This
development culminated in the Liesbosch, Drdger v. S.S. Edison (supra), in which Lord Wright
considered some of the decisions of Dr. Lushington and decisions in other admiralty cases, and after
concluding that “the arbitrary rule suggested by Dr. Lushington is not law,” he said at pp. 463-464:
“The true rule seems to be that the measure of damages in such cases is the value of the ship to her owner as a going concern at the time and place of the loss. In assessing that value regard must naturally be had to her pending engagements, either profitable or the reverse. The rule, however, obviously requires some care in its application; the figure of damage is to represent the capitalized value of the vessel as a profit-earning machine, not in the abstract but in view of the actual circumstances. The value of prospective freights cannot simply be added to the market value for purpose of assessing the damage, since if it is merely added to the market value of a free ship, the owner will be getting pro tanto his damages twice over.” Lord Wright went on to say at pp. 464-465:
“But the contrasted cases of a tramp under charter or a seeking tramp do not exhaust all the possible
problems in which must be sought an answer to the question what is involved in the principle of restitutio in integrum. I have only here mentioned such cases as a step to considering the problem in the present case.
Many, varied and complex are the types of vessels and the modes of employment in which their owners may use them. Hence the difficulties constantly felt in defining rules as to the measure of damages. I think it impossible to lay down any universal formula. A ship of war, a supply ship, a light ship, a dredger employed by a public authority, a passenger liner, a trawler, a cable ship, a tug boat (to take a few instances), all may raise quite different questions before their true value can be ascertained.” In Liesbosch, Dredger v. S.S. Edison (supra) the plaintiffs’ dredger, which they were using in the course of a profitable contract work at Patras Harbour, was sunk by the negligence of the defendants’ ship. The plaintiffs were put to much greater expense in fulfilling this contract because they were too poor to buy a substitute dredger. It was argued that [p. 95] of [1972] 1 GLR 78
in assessing damages the plaintiffs’ want of means must be taken into account and hence the damages must be based on their actual loss. The House of Lords held that the plaintiffs were entitled to recover (i) the market price of a comparable dredger; (ii) the costs of its adaptation, transport and insurance to the place of loss and (iii) compensation for disturbance and loss in carrying out the contract up to the time at which the substituted dredger could reasonably have been available at Patras. But no damages were awarded for the loss occasioned by the impecuniosity of the plaintiffs. In rejecting the argument about the plaintiffs’ poverty Lord Wright said at p. 460:
“In my judgment the appellants are not entitled to recover damages on this basis. The respondents’ tortious act involved the physical loss of the dredger; that loss must somehow be reduced to terms of money. But the appellants’ actual loss in so far as it was due to their impecuniosity arose from that impecuniosity as a separate and concurrent cause, extraneous to and distinct in character from the tort; the impecuniosity was not traceable to the respondents’ acts, and in my opinion was outside the legal purview of the consequences of these acts. “
It is, I believe, necessary to point out that the House of Lords did not think that the dictum from the
speech of Lord Collins in Clippens Oil Co. v. Edinburgh & District Water Trustees [1907] A.C. 291 at p. 303, H.L., quoted by Akufo-Addo C.J. in the Zacca case was relevant in dealing with the measure of damages. The principle, therefore, is that the consequences of the plaintiffs’ own poverty are not damages resulting from the tort of the defendant; they are too remote and are to be disregarded in the calculation of damages. In this case, therefore, it is irrelevant that the plaintiff was, through lack of means, unable to replace his vehicle within a reasonable time and to earn profits.
Two vital questions raised in this appeal are (1) whether the plaintiff is entitled to loss of earnings and (2) for what period is he entitled to claim? As a general principle, it is for the party claiming damages for the loss of use of his vehicle to prove to the satisfaction of the court both the fact of the loss, and the amount of the loss. The claim for loss of profits cannot be limited to profits from engagements to which the vehicle was committed at the time it was destroyed, for this is only the best evidence that a profit would have been made: see The Llanover [1947] P. 80. It is sufficient to show no more than a real possibility of profit earning. “Therefore,” as Devlin L.J. said in The Hebridean Coast [1961] A.C. 454 at p. 566, H.L.,
“the possibility or probability of profit-making must be clearly proved if it is to be allowed for in the
damages.” It has also been said that loss of profits is a matter to be proved or measured with reasonable certainty, and not a matter for conjecture or speculation: see The Argentino (1888) 13 P.D. 191 at p 201; The Ikala [1929] A. C. 196 at p. 205, H.L. and The Soya [1955] 1 W.L.R. 1246 at p. 1250. [p.96] of [1972] 1 GLR 78 In the present case the plaintiff was able to prove that he made a net profit of N¢120.00 per month, and he further proved that, having regard to the nature of business that the vehicle was doing, there was the reasonable probability that, if the vehicle had not been destroyed by the negligence of the defendants’ driver, he would have continued to make the same net profit in the succeeding months. Having regard to passenger transport in this country, I would say that there is the probability that the vehicle would have earned so much money, if the plaintiff had not been deprived of its use. The learned trial judge who was more familiar with business life in the Western Region than any of us sitting here in Accra, accepted the plaintiff’s figure of N¢120.00 as the average monthly net income from the vehicle at the time of the accident, and it has not been shown in this appeal that he was wrong. The learned trial judge then discounted the full amount of the profit that could have been earned by allowing for a degree of improbability. So far as the discounting is concerned, I think he proceeded on a right principle.
The period for which loss of profits is recoverable, where an income-earning vehicle is damaged beyond repair, is a question often of considerable difficulty. I agree that in estimating the period for which consequential loss should be calculated there can be no rule of thumb to be followed, and that the length of time must depend upon the particular circumstances of each case. The point was considered in The Arpad [1934] P. 189, where Greer L.J. said at p. 217, C.A.:
“It had been frequently decided that if a ship owner is deprived for a short time of the use of a vessel which he uses in his business for the purpose of earning profits, the Court can take into account the actual engagements of his ship during the time he is so deprived of the use of it. If, as in The Edison [1933] A.C.
449, he is permanently deprived of his ship, it follows that during the time he is so deprived, that is to say, until he can supply himself with another ship to do the work, he is entitled to the same measure of damages for loss of business between the time when his ship has been destroyed and a reasonable time in which he can obtain a substitute as he would have been entitled to if his claim had been not for loss but for being temporarily deprived of the use of his ship. This seems to me, if it is not impertinent to say so, clearly right” The whole question then depends on what is “reasonable time?” The word “reasonable” cannot be precisely defined,, and as Sir Federick Pollock stated in his article entitled “Judicial Caution and Valour” (1929) 45 L.Q.R. 293 at p. 295. “reasonable” means,
“[A]n ideal standard, which cannot be precisely defined, but is none other than that general consent of right-minded and rightly informed men which our ancestors in the profession called Reason, and Continental doctors the Law of Nature.[I]n modern terms, we say that the duty of the Court is to keep the rules of law in harmony with the enlightened commonsense of the nation.”
[p.97] of [1972] 1 GLR 78 In my judgment, “reasonable time” is the period which the court considers to be fair and just in “the peculiar circumstances of each case.” The law (the common law) is the embodiment of the common sense of the community, and the determination of a length of time must accord with that common sense. In the ultimate analysis, therefore, the question what is a reasonable time is one for the discretion of the court.
The vehicle, the subject-matter of this suit, was a Robur Commercial lorry for which the C.F.A.O. were the manufacturers’ agents at Takoradi. There is no evidence that this particular brand of vehicle was scarce on the motor market. Assuming therefore the plaintiff had sufficient means, he could have bought a new vehicle the day after the accident. It would, in my estimation, have taken two weeks to build a body on the chassis. Insurance and licensing could take another two weeks. Allowing for delays, I think that in all the circumstances, the plaintiff’s vehicle could reasonably have been replaced within six weeks from the date of the accident. The accident took place on 21 January 1967 and for one month from that date (i.e 21 January 1967) I would allow for loss of profits N¢120.00, and for the succeeding two weeks N¢60.00.
I do not take into account such contingencies as the vehicle going into garage for maintenance or repairs, and other factors which might prevent the vehicle from going into service on certain days. On this basis, I would allow the plaintiff to recover the sum of N¢180.00 for loss of profit. And this, added to the pre-accident value of N¢1,950.00, brings the total amount of damages to N¢2,130.00. I would, accordingly, allow the appeal against damages and set aside the assessment of N¢5,011.33 made by the learned trial judge, and I would substitute therefor the sum of N¢2,130.00 damages for the plaintiff. The appeal is to this extent dismissed with costs.
JUDGEMENT OF SOWAH J.A.
I have had the opportunity of reading the judgment of Azu Crabbe J.S.C. in this appeal and agree with the conclusion and some of the reasons for those conclusions which I will not repeat. There are only one or two observations I wish to make regarding the Borketey case as the learned trial judge in this case appeared to rely heavily upon it. The learned judge in the Borketey appeal attributed the following passage to Lord Sumner in the case of the Admiralty Commissioners v. Chekiang (Owners), The Chekiang [1926] All E.R. Rep. 114, H.L., “The dominant rule of law is the principle of restitutio in
integrum and subsidiary rules can be justified only if they give effect to that rule.” It has already been
shown that the context assigned to it was wrong and from its application in that case, it seems clear that the learned judges did not have the benefit of the judgment from which it was culled.
The passage is from the speech of Lord Wright in Liesboch (Dredger) v. S.S. Edison [1933] All E.R. Rep. 144 at p. 160, H.L. where the principles applicable to the assessment of damages for the loss of a
profit-earning chattel were enunciated. Those principles have already been set down in the main
judgment. [p.98] of [1972] 1 GLR 78 The learned judge in the Borketey case, after discussing some of the principles which, in their view, must prevail and against which one cannot cavil, proceeded as follows:
“Accordingly, in my judgment, the plaintiff was entitled not only to the market value of the taxi-cab at the date of the accident, but also to the profits he would have made had the car remained on the road. But the plaintiff’s right to compensation is qualified by the equally well settled rule of law that the plaintiff is himself under a duty to take all reasonable steps to mitigate the loss and he cannot claim any part of the damage which is due to his neglect to take such steps. The question to be determined therefore is: For what length of time is the plaintiff entitled to recover from the respondents, his loss of earnings? Had the plaintiff purchased a taxi-cab of comparable kind, the day after the accident and commenced work immediately the plaintiff would not have lost his daily earnings. But there is no evidence that the plaintiff in fact procured a substitute—certainly at any rate, not before judgment. There is no evidence that the respondents paid or offered to pay him the pre-accident value of the taxi-cab at any time before judgment nor is it possible to say on the evidence that the plaintiff had any funds of his own to do this. In the case of Jewelowski v. Propp
[1944] K.B. 510, it was held that a person cannot be called upon to spend money to enable him to minimise the damages. I think in all the circumstances of this case, the plaintiff is entitled to recover from the respondents, his loss of earnings from the date of the accident to the day of judgment.”
It is obvious from the above passage that the learned judges took into account certain matters they ought not to, which matters may be said to be remote.
The fact that the injured owner was unable to procure a substitute within reasonable time due to his
impecuniosity or even the failure of the tortfeasor to offer replacement should be no consideration in
assessing damages. The law may not expect an injured person to expend money in minimising damages but it does not equally allow damages to be increased by reason only that the injured person is impecunious. “I am not aware that the poverty of an injured person has ever been allowed to increase damages for loss of property before”: per Lord Scrutton.
The question is therefore not whether the injured person has obtained a substitute chattel at the date of trial but when could a substitute be reasonable obtained? The test is objective. His loss of earning will be so calculated. This, of course, is a matter of evidence and if there be none before the appellate court, the matter may be referred to the trial court to make a finding and an assessment on that basis.
JUDGEMENT OF LASSEY J.A.
I agree only with the main conclusion reached in this appeal.
DECISION
Appeal allowed in part.
