KLUTSE AND ANOTHER v. NELSON [1965] GLR 537

DIVISION: SUPREME COURT

DATE: 28 JUNE 1965

BEFORE: MILLS-ODOI, APALOO AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) Majolagbe v. Larbi [1959] G.L.R. 190.

(2) Bolton v. Stone [1951] A.C. 850; [1951] 1 All E.R. 1078; [1951] 1 T.L.R. 977, H.L

(3) Saoud Brothers v. Boateng [1964] G.L.R. 405, S.C.

(4) Parkinson v. Liverpool Corporation [1950] W.N. 43; [1950]1 All E.R. 367; 66 T.L.R. (Pt. 1) 262,

C.A.

(5) Challen v. Bell and London Transport Executive, The Times, 6 February 1954.

(6) Halliwell v. Venables (1930) 143 L.T. 215; 74 S.J. 264, C.A.

(7) Laurie v. Raglan Building Co., Ltd. [1942] 1 K.B. 152; [1941] 3 All E.R. 332; 166 L.T. 63, C.A.

(8) Chaplin v. Hawes (1828) 3 Car. & P. 554; 172 E.R. 543.

(9) Faloye v. Olaniyan (1954) 14 W.A.C.A. 608.

(10) Mbadiwe v. Alhaji Yaya (1954) 14 W.A.C.A. 613.

(11) Scott v. London and St. Katharine Docks Co. (1865) 13 L.T. 148; 3 H. & C. 596; 159 E.R. 655.

(12) Oyewole v. Kelani (1948) 12 W.A.C.A. 327.

(13) Hollington v. Hewthorn [1943] 1 K.B. 587; 59 T.L.R. 321; [1943] 2 All E.R. 35, C.A.

(14) Manu v. Mensah [1963] 2 G.L.R. 311, S.C.

NATURE OF PROCEEDINGS

APPEAL by the first and second defendants against a judgment of Acolatse J. (as he then was) at the

High Court, Accra, dated 28 January 1964, in which the plaintiff was awarded damages for injuries suffered in a motor accident. The facts as summarised in the headnote are taken from the judgment of

Apaloo J.S.C. which also contains the full facts of the case.

COUNSEL

E. D. Kom for the appellants.

Victor Owusu for the respondent.

JUDGMENT OF APALOO J.S.C

This is an appeal from the judgment of Acolatse J. (as he then was) delivered on 28 January 1964. By that judgment, the court awarded in favour of the respondent (hereinafter called the plaintiff) damages in a collision. The appellants will hereafter be referred to as the first and second defendants. The facts of this case are comparatively simple although there is a sharp area of disagreement between the parties. The plaintiff who is a telephonist in the employment of the Ghana Police Service lived at Tema. At about 6 a.m. on 23 June 1962, she joined a Mercedes Benz bus with the registration number AF 7369 bound for

Accra. She was with about 21 other passengers in a bus driven by one Ebenezer Otu Laryea.

[p.540] of [1965] GLR 537

At the outskirts of Teshie, this bus was in collision with a tipper truck belonging to the second defendant company and driven at that time by their driver and servant, the first defendant. The plaintiff claimed that that accident was caused by the negligent driving of the said first defendant. The plaintiff, as is not disputed, sustained fairly serious injuries in this accident and is, to a certain extent, permanently incapacitated as a result of these injuries. The negligence which the plaintiff charged against the first defendant was particularised in her statement of claim as follows: first, driving at an excessive speed; secondly, failure to apply his brakes in sufficient time to avoid hitting the bus and thirdly, failure to exercise due care and skill in the management of the tipper truck.

The first defendant denied that he had been negligent in the manner particularised or in any other manner and pleaded that the accident was caused by a Volkswagon car which forced its way between the bus and the tipper truck. The first defendant did not give any details as to how the action of the Volkswagon car necessitated the collision, but the plaintiff was apparently satisfied with this somewhat meagre information and joined issue with the first defendant. Accordingly, when summons for directions was taken out, the only issue agreed and ordered to be tried on the question of liability was as follows:

“Whether or not the first defendant was guilty of negligence.”

By that issue, the plaintiff took upon herself the onus of proving that the first defendant was guilty of negligence in the manner alleged by her and set out in the particulars. When the trial opened on 7 January

1964, she herself gave evidence and was supported by the driver of the bus in which she rode. The first defendant in turn gave evidence of the accident and his version of how the accident happened was corroborated by one Samson Krah, who said he was an eyewitness of the accident and sat on the front seat by the first defendant on the fateful day. After the conclusion of evidence, the learned trial judge reserved judgment which he delivered on 28 January 1964. A substantial portion of that judgment consisted of a somewhat tedious recital of the evidence of both parties. The learned judge nowhere expressed acceptance of the plaintiff’s version of how the accident occurred but he unequivocally rejected the first defendant’s account of how it happened but gave no reason for this. He seemed to have considered that this case came within the doctrine of res ipsa loquitur and, having rejected the defendant’s explanation of the accident, proceeded to hold that the first defendant was guilty of negligence, and awarded damages in favour of the plaintiff.

It is against this judgment that the defendants appeal to this court. The notice of appeal contained five grounds of appeal including the

[p.541] of [1965] GLR 537 never failing one that, “The judgment is against the weight of evidence.” This was argued together with the defendants’ most serious ground of appeal, namely, that the trial judge was wrong in holding that the first defendant was negligent. On these grounds, counsel for the defendants referred us to various portions of the evidence and submitted that the first defendant’s account was the more probable of the two and should have been accepted. He argued that not only was Laryea, the plaintiff’s witness, a person interested in the result of this suit, but had in the magistrate’s court sworn the contrary of what he testified to in the present proceedings. With regard to the skid, counsel submitted that the first defendant’s inability to correct it was immaterial as he had rather insufficient time to remedy the situation.

For the plaintiff, it was argued that whether or not the defendants were liable in negligence was a question of fact and that the learned trial judge rejected the first defendant’s account of the accident. It was said the first defendant must have travelled at great speed before applying his brakes and that if he did so on a wet day, he must have been driving without due care and attention. It was said that the first defendant was under a particularly heavy duty and this was to drive at a speed at which he could apply his brakes without skidding in view of the oncoming vehicle and also in view of the fact that a Volkswagon car which was following him, ignored his signal not to overtake. Counsel therefore submitted that not only was the Volkswagon car’s driver negligent but so also was the first defendant because he failed to reduce his speed. It was finally submitted by counsel for the plaintiff that the first defendant ought to have shown that, (a) he was not travelling at an excessive speed and (b) that it was necessary to apply his brakes.

It is possible that in an attempt to compress the rival contentions put forward on both sides, I have not done full justice to the arguments advanced by the parties but I believe what I have recited supra, is the pith of them. In my opinion, the questions which fall to be decided on this appeal are four. As I see them, they are first, did the plaintiff prove that the first defendant was negligent in the manner she alleged?

Secondly, if she did not, can the doctrine of res ipsa loquitur be properly invoked in her favour to throw the onus of disproving negligence on the first defendant? Thirdly, if this doctrine can be so invoked, which of the two accounts of the accident is the more probable? And, fourthly, if the first defendant’s version is the more probable of the two, does his conduct amount to careless driving or was he to blame for the accident? It is, I think, necessary to attempt an answer to these questions in so far as the evidence on record admits of this.

[p.542] of [1965] GLR 537

As I have said, the facts which the plaintiff claimed constituted negligence against the first defendant and which she set out to prove are that the first defendant travelled at an excessive speed, failed to apply his brakes in sufficient time to avoid a collision and failed to exercise due care and skill in the management of the tipper truck. In my opinion, none of these allegations was established. Indeed with regard to the two latter allegations, no attempt was even made to prove them. Neither the plaintiff nor her witness

Laryea gave evidence of any facts which made it necessary for the first defendant to apply his brakes and

I fail to see why it was negligence in the first defendant to brake if no occasion for it had arisen. No facts were deposed to which offer the slightest suggestion that the first defendant failed to exercise due care and skill in the management of the truck. The first defendant was driving a five or six-ton truck and, on the plaintiff ‘s own showing, kept on his proper side of the road. There is no evidence that the truck was zigzagging on the road or was driven in any particular manner which would lead to an inference of want of skill in the driver. The only allegation which the plaintiff attempted to prove, was that the truck was driven at an excessive speed. Neither the plaintiff nor Laryea expressed any opinion as to what speed the first defendant was making before the accident or why they thought it was excessive in the circumstances.

The plaintiff said the tipper truck was driven at “full speed” without specifying what that meant. Laryea merely said, “The tipper truck was travelling at speed.” In my opinion, these bare assertions cannot be deemed to be proof of matters controverted in the pleadings. As a witness, Laryea was thoroughly discredited because he had made a sworn statement in the magistrate’s court about a Volkswagon car which he shamelessly denied, and was obviously a witness of questionable veracity. No such criticism can be made of the plaintiff, but according to herself, she sat on the second seat behind Laryea and can give nothing like reliable evidence of the speed which the tipper truck, in which she did not ride, was making. In any event, she did not prove excessive speed by merely repeating in the witness-box an averment denied in the pleadings. In this connection, I refer, with respectful approval to the dictum of

Ollennu J. (as he then was) in the High Court case of Majolagbe v. Larbi,1 where the learned judge is reported to have said2

“‘Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things,

[p.543] of [1965] GLR 537 reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true’.”

Accordingly, I do not find it proved that the plaintiff made out her charge of negligence against the first defendant, and it does not therefore surprise me that the learned trial judge did not feel able to express acceptance of her case and thus resorted to the doctrine of res ipsa loquitur. The next question therefore is: Was the learned judge entitled to do that? The authorities show that he was not. At page 79, para. 81,

Vol. 28 of Halsbury’s Laws of England (3rd ed.), the correct legal position is stated as follows:

“The maxim res ipsa loquitur applies only where the causes of the accident are unknown but the inference of negligence is clear from the nature of the accident, and the defendant is therefore liable if he does not produce evidence to counteract the inference. If the causes are sufficiently known, the case ceases to be one where the facts speak for themselves and the court has to determine whether or not, from the known facts, negligence is to be inferred.”

In this case, the plaintiff professed to know the cause of the accident and produced an eye-witness whom she held out as a witness of truth. His evidence was obviously not accepted as a truthful account of the accident. The plaintiff also totally failed to substantiate the facts which she alleged constituted negligence. In those circumstances, it seems to be entirely wrong to resort to the res ipsa loquitur maxim to throw the burden of disproof of negligence on the defendants. In the case of Bolton v. Stone,3 Miss

Stone claimed damages for injuries received when she was struck by a cricket ball while standing on the highway in a road adjoining a cricket field occupied by the defendants. She failed to make out her allegations of negligence and Oliver J. found against her. When the case eventually reached the House of

Lords, her counsel attempted to rely on the res ipsa loquitur maxim. Lord Porter, rejecting an argument based on that principle, said4:

“I am not assisted by any reliance on the doctrine of ‘res ipsa loquitur.’ Where the circumstances giving rise to the cause of

[p.544] of [1965] GLR 537 the accident are unknown, that doctrine may be of great assistance, but where, as in the present case, all the facts are known, it cannot have any application. It is known exactly how the accident happened, and it is unnecessary to ask whether this accident would have happened had there been no negligence. The only question is: Do the facts or omissions which are known and which led up to the injury amount to negligence?”

It follows in my judgment, that the plaintiff’s case stood or fell according as she succeeded or failed to establish the acts on which she relied as constituting the negligence. Indeed that is the view which this court took when allowing an appeal in a collision action entitled Saoud Brothers v. Boateng5 which judgment was delivered on 22 June 1964. In that case, as in the present, the plaintiff furnished particulars of negligence on which he relied to found his action. Although he did not substantiate any of them, the learned trial judge found in his favour. This court reversing the said judgment said inter alia, “Finally the learned judge failed to direct his attention to the negligence relied upon by the plaintiff to sustain his claim; consequently he failed to realise that there was no evidence led by the plaintiff to establish any part of the negligence pleaded by him.6”Virtually, every word of that passage applies to this case and it is perhaps not without interest that that view was expressed by Acolatse J.S.C. then sitting as a judge of the

Supreme Court. In my opinion, the plaintiff having failed to make out the negligence she alleged, the question of liability should have been decided against her and I am satisfied that the learned trial judge erred in invoking the doctrine of res ipsa loquitur in her favour. If that view is right, it is sufficient to conclude this appeal in the defendants’ favour.

But I am unwilling to dispose of this case on what might well be called a pleading point and I propose therefore to attempt an answer to the third question which I propounded, namely, which of the two accounts of the accident is the more probable? That, I think, must depend upon the relative credibility of the two sets of witnesses. Except that she was materially interested in the result of the case, there is nothing in the evidence which suggests that the plaintiff was other than an honest witness. But she was not so positioned on the vehicle as to vouch with any degree of certainty for how the accident happened.

Her witness Laryea was in a better position. All the plaintiff was able to say was that the tipper truck, “all of a sudden swerved to the right and crashed into our bus.” Laryea said, “The tipper truck was travelling at speed when it suddenly

[p.545] of [1965] GLR 537 lost its way.” He denied seeing any Volkswagon car on the road that morning and said he did not in fact know what a Volkswagon car was. If Laryea’s evidence is true, it implies that the first defendant drove the truck at a terrific speed and lost control of it causing it to collide with the bus on its part of the road.

That would, without doubt, be negligent driving.

But can Laryea be a witness of truth? In my judgment, he cannot have been. It would seem that the first defendant was prosecuted before the district court as a result of this accident. Laryea testified on behalf of the prosecution and a certified true copy of his evidence was admitted in evidence without objection.

Laryea was recorded as having said:

“On 23 June 1962, about 6.30 a.m., I was driving Mercedes Benz bus No. AF 7369 from Tema to Accra. I was carrying passengers. There were twenty-two passengers in my vehicle. There was an accident at Teshie, i.e. mile 8 from Accra. I saw a tipper truck followed by V. W. car coming in the opposite direction. I now say the V.W. was in front of the tipper truck. The tipper truck tried to overtake the V.W. when I was almost abreast with the V.W. car. The tipper truck driver applied his brakes when he saw my vehicle. Then his vehicle swung to my path and knocked the right side of my vehicle.”

That is a rather different account from what he swore to in the instant proceedings. If he were a witness of truth, why did he give two wholly irreconcilable accounts of what he saw? But the significant thing about his evidence in the magistrate’s court, is that most parts of it support the first defendant’s version of how the accident occurred. The first defendant said when he saw the Mercedes Benz bus, he also saw a V.W. behind him and which was attempting to overtake. He signalled it not to. When the oncoming bus had almost come abreast of him, he noticed that the V.W. car was also almost abreast. He thought it was necessary for one vehicle to give way and as soon as the V.W. car overtook him, he applied his brakes.

As the ground was wet, the sudden application of the brakes caused his truck to skid and to collide with

Laryea’s bus which was then on its proper side. Not only is this an inherently probable story, but it was corroborated to the hilt by Krah whose evidence was hardly challenged in cross-examination.

The evidence of Laryea before the district court and the evidence of the defendants in the instant suit show that both sides were in accord on a number of matters, namely, first, that a Volkswagon car was on the road that day; secondly, at a certain stage in the journey and just before the accident occurred, all three vehicles

[p.546] of [1965] GLR 537 were almost abreast. Thirdly, the first defendant found it necessary to apply his brakes. Fourthly, the sudden application of the brakes caused the vehicle to swerve to its wrong side. Fifthly, that it was drizzling at the time. The only serious matter on which their evidence was in conflict is whether or not the

Volkswagon was behind or in front of the first defendant’s tipper truck. The importance of that lies in the fact that it would determine which of the vehicles attempted to overtake the other.

The first defendant swore definitely that the Volkswagon was behind him and he was supported by Krah.

Significantly enough, Laryea himself at first said so in his evidence but he quickly changed it. This change of front must have struck the learned magistrate because he recorded Laryea as saying, “I saw a tipper truck followed by V.W. car coming in the opposite direction. I now say the V. W. was in front of the tipper truck.” I think Laryea told the truth intuitively and changed it when he realised that it would not square with his story. In any event, the defendant’s story that it was the Volkswagon which was behind and which attempted to overtake, is the more probable of the two stories. Unless there is any special reason, and none is disclosed in the evidence, it is difficult to believe that a driver of a huge six-ton truck would risk overtaking a small fast car like a Volkswagon in the face of oncoming traffic with an almost certain possibility of head-on collision. I think Laryea was a mendacious witness and the defendant’s account of the accident is the truth. Indeed there is strong reason why Laryea would wish to tell untruths.

He himself brought an action against the first defendant and it was in his interest to see to it that negligence was established against the first defendant by any means fair or foul. There is no apparent reason why either the first defendant or Krah would wish to perjure themselves in this matter. At the date when each gave evidence in this case, they had left the second defendant’s employment. In my opinion, their evidence was prompted by conscience and truth and, as I said, was a true account of what happened.

If that view is right, I am left only with the question: Do these facts amount to careless driving? There was no reason to make the first defendant believe that the Volkswagon driver was going to ignore his signal. If therefore he attempted to overtake while the oncoming bus was almost abreast, there can be no question that an emergency had arisen and the first defendant ought to do the best that would be expected of a reasonable and careful driver in those circumstances. If he swerved to the left, he would in all probability, run into the ditch on his nearside. This accident took place in Teshie and it is not unknown for pedestrians to stand on the roadside or women hawkers to display their wares there. If he swerved to the right,

[p.547] of [1965] GLR 537 he would collide head-on with the oncoming bus. If he continued on a straight course, he might collide with the tiny Volkswagon from its rear and probably reduce it and its driver into smithereens. I think the first defendant was, if I may so put it, between Scylla and Charybdis. What was he to do in those circumstances? I think both instinct and reason alike would impel him to jam on his brakes. That is precisely what the first defendant did and, in doing so, I think he chose the least of three evils. I cannot believe that any fair-minded jury would convict him of negligence in those circumstances. It is said for example, that if the first defendant’s story were true, he should have swerved to the left. I have already held that that evidence must be true and it was no more safe for him to swerve left than to swerve right. It is also said, if the Volkswagon car had safely passed, the need for sudden application of brakes was unnecessary. But if the first defendant genuinely believed, as he must have done, that if he maintained his regular speed, he would crash into the Volkswagon, I cannot think what other reasonable course was left to him than to apply his brakes. If in truth, a collision with the Volkswagon would not have taken place if the first defendant had not applied his brakes, then the first defendant would merely have committed an error of judgment in an emergency. That, as I understand the law, would not make him liable in negligence. In my opinion, the law on this aspect of the case is accurately stated at page 11 of Gibb’s The

Law of Collisions on Land (5th ed.). It is there stated:

“When by the negligent conduct of a vehicle or foot-passenger on the road a collision with another person or vehicle is rendered imminent, the latter will not be liable in respect of a collision if in the stress and agitation of the moment he takes an unwise course to avoid it.”

I would respectfully adopt that as my view.

Indeed the conclusion which I have formed on the issue of liability is fortified by two recent cases decided in England. In Parkinson v. Liverpool Corporation7 the driver of an omnibus applied in his brakes with some suddenness to avoid running over a dog. A male passenger who had arisen from his seat to be ready to alight was thrown to the floor and broke two ribs. He sued the corporation to recover damages on the ground of the driver’s negligence. Pritchard J. said, “The simple test … is: Did the driver act reasonably or unreasonably by doing something which a reasonable person would not do and leaving undone something a reasonable person would do.?”8 The learned judge held that the driver acted as a reasonable

[p.548] of [1965] GLR 537 person in an emergency and was not guilty of negligence. An appeal against this decision failed.

Also in the case of Challen v. Bell and London Transport Executive,9 a pedestrian stepped in front of an omnibus causing it to stop suddenly. The plaintiff was a passenger and was thereby injured. The plaintiff thereupon sued the London Transport Executive and the pedestrian. Pilcher J. held that the pedestrian alone was to blame while the omnibus driver was blameless. So in this case had the driver of the

Volkswagon car been located and sued, his liability for negligence would not have been open to doubt, but in my opinion, the first defendant was entirely blameless.

It was finally submitted for the plaintiff, that where there is a skid, the onus lies on the defendant to show that he was not negligent and in support of this the cases of Halliwell v. Venables10 and Laurie v. Raglan

Building Co., Ltd.11 were relied on. In my opinion, those cases lay down no such principle. On the contrary, they establish that a skid by itself is neutral and that in those cases where res ipsa loquitur applies, a skid per se is no answer unless it is shown that it happened without any fault of the driver. In my judgment, the plaintiff can in no way advance her case by any reliance on a skid because the first defendant’s truck skidded on a wet road in circumstances in which no fault can be attributed to him.

I do not need to go into any further details. I believe I have said enough to indicate the process of reasoning which leads me to the firm conclusion that the first defendant was not negligent. It follows, in my judgment, that not only has the plaintiff failed to prove the first defendant negligent, but the latter has succeeded in showing that he was not. I hold therefore that in finding the first defendant negligent, the learned trial judge arrived at the wrong conclusion and his judgment therefore ought not to be allowed to stand.

Accordingly, I would allow the appeal and set aside the judgment appealed from. In lieu of it, I would make an order dismissing the plaintiff’s claim and entering judgment for the defendants. The defendants are entitled to their costs in the High Court. I would assess them at 60 guineas. I would also award them their costs in this court.

JUDGMENT OF MILLS-ODOI J.S.C.

I have had the advantage of reading beforehand the able and instructive opinion of my brother Apaloo, who has endeavoured to ascertain with exactness the respective provinces of

[p.549] of [1965] GLR 537 the three motor vehicles, the first of which overtook the second while the third was approaching from the opposite direction, and I agree with the narrative of facts and the conclusion in law reached by him and, for my part, a very few words will suffice to explain the consideration which led me also to that conclusion.

It was incumbent upon the plaintiff, in order to succeed in her claim, to show that it was a breach of the

Road Traffic Ordinance12 which was the causa causans of the accident, and that it was the first defendant who in fact committed that breach. In this regard, the plaintiff averred, in her statement of claim, that the following breaches of the aforesaid Ordinance were committed by the first defendant and that they were the effective cause of the accident resulting in the personal injuries she had received. The alleged breaches are:

“(1) Travelled at an excessive speed.

(2) Failed to apply the brakes of the said Bedford tipper truck in sufficient time to avoid hitting the

Mercedes Benz bus on which plaintiff was travelling as a passenger.

(3) Failed to exercise due care and skill in the management of the said Bedford tipper truck.”

But an examination of the record shows clearly that the plaintiff failed in toto to prove any of these alleged breaches.

I am of opinion, therefore, that the charge of negligence against the first defendant was not proved; and I confess, had I been the judge trying the case, I should, at the end of the plaintiff ‘s case, have dismissed her claim without the slightest hesitation or doubt on the ground that she had not discharged the onus which lay on her.

The general rule, as far as I understand it, is that an overtaking vehicle must keep clear, that is to say, the driver of that vehicle must exercise due care and attention, in the course of the overtaking, to avoid a collision. If, in the course of the overtaking another vehicle approaches from the opposite direction and a collision occurs between any of the vehicles, the onus will rest upon the driver who is overtaking to clear himself of the blame. I should myself be sorry if such were not the law.

I am of opinion:

(a) that shortly before the accident there were three vehicles travelling along that part of the

Teshie-Tema road, the Volkswagon car and the tipper truck travelling towards Tema, the Mercedes

Benz bus travelling in the opposite direction; [p.550] of [1965] GLR 537

(b) that the first defendant (driver of the tipper truck) gave a signal to the driver of the Volkswagon car which was travelling behind his truck not to overtake because of the approach, from the opposite direction, of the Mercedes Benz bus;

(c) that the driver of the Volkswagon car ignored the warning of the first defendant and did overtake the tipper truck when it was almost abreast with the Mercedes Benz bus.

In these circumstances there can be no doubt that there was an emergency at the time the Volkswagon car was overtaking, and the first defendant was compelled to do his utmost to avert collision. If therefore, in the stress and agitation of the moment, he took an unwise course to avert a collision, he would still be unanswerable.

Thus in the case of Chaplin v. Hawes13 Best C.J., in reading the judgment of the court, had this to say:

“But, on the sudden, a man may not be sufficiently self-possessed to know in what way to decide; and in such a case I think the wrong-doer is the party who is to be answerable for the mischief, though it might have been prevented by the other party’s acting differently.”

For this reason and for those which have been stated by my brother Apaloo, I am also of opinion that the appeal should be allowed.

JUDGMENT OF SIRIBOE J.S.C.

I have had the advantage of reading beforehand, the judgment first read by my brother Apaloo in which my brother Mills-Odoi has concurred. I regret to say that all efforts to persuade myself to accept or agree with the reasoning and conclusions arrived at by them have failed, and I must therefore express my dissent.

The facts of the case as I gather them are indeed simple. The plaintiff, a telephonist in the Ghana Police

Service, was at the time material to this case, stationed at Tema and used to attend work in Accra. On the morning of 23 June 1962, she boarded a Mercedes Benz bus numbered AF 7369 then driven by the first witness for the plaintiff which left Tema and drove towards Accra. On the way at about mile eight from

Accra, she observed that a tipper truck numbered AG7418 loaded with people was coming from the opposite direction and being driven at full speed. Suddenly it swerved from its side to their side of the road and crashed into their bus. She became unconscious in consequence of the impact, and later found herself at the Korle Bu Hospital, Accra, with the following injuries: three ribs broken, fractured chest, fracture of the pelvis and right leg, and also

[p.551] of [1965] GLR 537 a cut on the face. She was discharged from hospital on 26 July 1962, but later had to move to Osu, Accra, to occupy a rented room from where she continued to attend the hospital for further treatment until

December 1962. She gave particulars of the expenses she incurred in the course of receiving treatment under the heading special damages which were not complete, because in some cases, for example, doctor’s charges, visits to the hospital for treatment per taxi costing £G2 a day and cost of extra nourishment and medicines, according to her. still continued at the time of the institution of her action.

She accordingly brought this action claiming £G5,000 damages for the injuries sustained as a result of the first defendant’s negligent driving of the second defendant’s tipper truck No. AG 7418.

Under cross-examination by counsel for the defendants, the plaintiff denied it was raining on that morning of the accident. She also denied seeing a Volkswagon either before or immediately after the accident, travelling from the Accra direction. In her evidence, she said she sat on the right hand side of the second seat behind the driver and immediately before the accident was looking straight ahead of her paying attention to the road.

Her evidence, in my view, was corroborated by the first witness for the plaintiff on all points material to the incident, namely, that at mile eight to Accra the tipper truck in question was seen proceeding from the

Accra direction at full speed and swerved from its course all of a sudden and crashed into the side of the

Mercedes Benz bus where the first witness for the plaintiff, the driver, was sitting. The first witness for the plaintiff said he also became unconscious following the impact and next found himself at the Military

Hospital suffering from injuries to his right leg and hip. He said he did not know at the time of the accident what had happened to the plaintiff. Under cross-examination, the first witness for the plaintiff said, “The tipper truck was travelling at speed when it suddenly lost its way.” He admitted having instituted an action against the first defendant in connection with the accident, but denied that his case had been adjourned to abide the result of the plaintiff’s case. He denied seeing any Volkswagon car on the road that morning.

Looking at this case from the plaintiff’s point of view, there is no doubt that the evidence given so far as is herein set out, raised a presumption of negligence on the part of the defendants, for the first defendant’s vehicle was at a place where it ought not to have been, resulting in the impact which occurred. In such circumstances it called for an explanation from the first defendant in the absence of which, the negligence against him could hardly be disputed, because normally vehicles travelling on the road, if properly controlled by

[p.552] of [1965] GLR 537 the drivers concerned, do not swerve suddenly to the wrong side of the road resulting in impact with the other vehicles on their proper side of the road.

On this point, I would refer to the case of Faloye v. Olaniyan,14 where it was stated that, “where an accident in the ordinary course of events does not happen when the business is properly conducted, the accident itself, if it happens, raises a presumption of negligence in the absence of any explanation.” Again in the case of Mbadiwe v. Yaya15 the same principle was stated as follows: “The accident itself raised a presumption of negligence, and the onus of disproving it was on the defendants.” Then in Halliwell v.

Venables16 Scrutton L.J. had this to say,

“In my view, where the judge went wrong was in not paying sufficient attention to the fact that the mere happening of the accident, unexplained, may be and often is in itself evidence of negligence without going back to find out exactly why the accident happened.”

He went on to say that the case that is often cited as the leading authority for the doctrine of res ipsa loquitur is the case where a cask fell from the second floor of a warehouse, and quoted a passage from

Scott v. London and St. Katharine Docks Co.17 thus:

“There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”

I have referred to the foregoing principles and cases not to show that the defendant gave no explanation, but only to register my disagreement with the view held by my brother Apaloo that the learned trial judge erred in thinking that the doctrine of res ipsa loquitur applied to this case. I am of opinion that up to the stage where the plaintiff’s case rested, as I have hereinbefore endeavoured to set out, the doctrine did apply and called for an explanation from the defendants.

And now what did the first defendant say? On the date in question, he said he was driving some employees of the second defendant on the latter’s truck No. AG 7418 from Accra to Tema at about

[p.553] of [1965] GLR 537

5 a.m. The first witness for the defendants, their time-keeper, sat with him on the front seat of the vehicle.

On their way at about 6.50 a.m. just as they had passed Teshie at mile eight from Accra, he saw a

Mercedes Benz bus descending from a hill in the opposite direction towards his (first defendant’s) vehicle. He also saw one Volkswagon car at his rear attempting to overtake him (first defendant) to whom he signalled not to overtake him, but this was ignored.

At that moment the Mercedes Benz bus, according to the first defendant, had almost reached his spot, and the Volkswagon car was also almost at his side thereby making it necessary for one of them to give way.

The Volkswagon overtook his vehicle and the first defendant had to apply his brakes. Because it had rained that morning and it was also drizzling, the road was wet so when he applied his brakes his vehicle skidded to the right and collided with the Mercedes Benz bus. He became unconscious and later found himself at the Korle Bu Hospital where he remained for three weeks before being transferred to the

Military Hospital for another week until his final discharge. He denied travelling at full speed as alleged and said he was driving at about 30 miles per hour as it was raining at the time. He agreed that the

Mercedes Benz bus was on its proper side of the road; but denied that it was through his negligence that the accident occurred.

His evidence was supported by the first witness for the defendants, who, as already pointed out, was the second defendant’s time keeper. Both of them, that is, the first defendant and the first witness for the defendants said they did not take notice of the number of the Volkswagon car. It is clear from the evidence of the defence that the impact occurred at a spot where their vehicle was not entitled to be, and that the only explanation they gave was that they were forced to be there as a result of the vehicle skidding when the brakes of the truck were applied to avoid hitting the rear of the Volkswagon after it had overtaken their truck.

As to whether this was so or not, was, in my opinion, purely a question of fact for the trial judge to decide after considering the evidence before him. In this case the learned judge after considering the circumstances of the case and the law applicable, including the question of burden of proof, and the explanation given by the defence as to the cause of the accident, rejected the defence put up. He said he found as a fact that the first defendant was negligent. He referred to the case of Faloye v. Olaniyan (supra) on the principle that the evidence raised a presumption of negligence, but this the first defendant failed to rebut. By that he made it clear that he accepted the plaintiff’s version of the case as to the cause of the accident. He gave reasons, which I think were tangible, for holding that view and

[p.554] of [1965] GLR 537 rejecting the defence. Some of his reasons were that although the evidence of the defence was that the road was wet, yet it was passable for driving; that there was no evidence given as to the condition of the brakes after the accident nor was there “any sound evidence given of any skid to prove unavoidable accident; that the skid, if any, was due to the negligence on the part of the driver” (referring to the first defendant).

Surely, if the first defendant’s case that he was compelled to apply his brakes in the manner he described, and as echoed by my brother Apaloo in his judgment as “jam on” his brakes, were true, then notwithstanding the condition of the road, as least some skid or tyre mark would have been made at the spot where the brakes were suddenly jammed on or applied. On the other hand, having regard to the manner in which the brakes were allegedly applied, something might have happened to the braking system. There was, however, as observed by the learned judge, no evidence of any such sort brought before him.

On the defence’s own showing that the tipper truck (a five or six tonner) was loaded with people, and in view of the condition of the road, coupled with the fact that the bus was approaching, it became necessary for the first defendant to have reduced his speed, or to have swerved to the left to enable the so-called

Volkswagon car which was ignoring his signal, to overtake him without any incident occurring. As stated by the first defendant, it became necessary for one of them to give way. Instead, the first defendant continued in the same direction and at the same speed he was travelling which he said was 30 miles per hour, and then suddenly applied his brakes resulting in the impact after the Volkswagon had overtaken him and gone without him even noticing the number of it.

It was therefore not surprising that the learned judge after considering all those circumstances and the case of Laurie v. Raglan Building Co., Ltd.18 held as follows:

“He [i.e. first defendant] failed to exercise due precautions with skill and care which a reasonable and prudent driver would have taken. In my opinion the defendants did not discharge the onus which lay upon them in displacing the prima facie case made by the plaintiff.”

In Laurie v. Raglan Building Co., Ltd., supra, the facts showed that it had snowed earlier that day. Then it had frozen and the Surface of the road was like glass. The driver of a heavy truck then loaded

[p.555] of [1965] GLR 537 and which was driven at a speed between ten and twelve miles an hour, was held liable when the vehicle skidded and part of it mounted the pavement and injured a person then lawfully there.

Lord Greene M.R. in his judgment, said19:

“I am quite unable to accept the proposition that, when a road is in that condition, a lorry of this kind, loaded in the way in which it was loaded, is entitled to proceed at such a speed. If roads are in such a condition that a motor car cannot safely proceed at all, it is the duty of the driver . . . to stop . . . . The evidence here shows clearly that the road was in such a condition that a prudent driver, even if he did not find it necessary to stop, would have proceeded at a very much slower speed.”

I am of opinion that the learned judge was right in holding that the first defendant failed to exercise due care in the circumstances of the case and was rightly held liable for negligence. That finding as I have earlier on stated, was one of fact for the trial judge, and was supported by evidence on record. It has, however, been questioned as being unsupported, and that on the evidence the defence case should have been preferred as being more probable. Reliance has been placed on some evidence alleged to have been given by the first witness for the plaintiff at the criminal trial of the first defendant before a different court

(with which plaintiff was not concerned) where the first witness for the plaintiff is said to have admitted seeing a Volkswagon car on the road that day, and also that it was drizzling; contrary to what he said in these proceedings.

What I would first of all say about the exhibit (the evidence of the first witness for the plaintiff in the criminal proceedings) is that it was inadmissible and ought not to have been accepted. On this point I would refer to the case of Oyewole v. Kelani.20 In that case the plaintiff who sued the defendant for damage done to his vehicle by the reckless driving of the defendant’s driver, sought to put in evidence the proceedings in a criminal trial against the defendant’s driver in respect of the collision, but this was objected to by the defendants’ counsel, which objection was upheld by the trial judge on the authority of

Hollington v. F. Hewthorn & Co., Ltd.21 On a case stated to the West African Court of Appeal as to whether the learned judge was right or not, the court referred to the following passage in Hollington v. Hewthorn and went on22:

[p.556] of [1965] GLR 537

“`The Court of Appeal are clear that the civil Court must base its findings on the facts placed before it without any regard to the proceedings before another tribunal. Upon this point the Court of Appeal has critically examined three cases, i.e. in the Estate of Crippen 1911, page 108, Partington v. Partington and

Atkinson, 132 L.T. 495 and O’Toole v. O’Toole, 132 L.T. 495 and hold that these cases go beyond and are contrary to the authorities and ought not to be followed in future.’

In view of this decision (with which we agree) we are satisfied that the learned Judge was correct when he refused to admit the before-mentioned evidence.”

The appeal was accordingly dismissed.

In the present case, the fact that exhibit 1 was not objected to when tendered as was done in the case cited above, did not in my opinion, alter the legal position as to its inadmissibility. The learned judge was therefore bound to decide the case upon the facts before him, without regard to exhibit I; and it seems to me that that was exactly what he did as his judgment clearly shows.

But even if exhibit 1 were admissible at all, the contrary view of which I have held, that would not necessarily make the defence case more probable, just because the first witness for the plaintiff corrected his evidence-in-chief about the relevant position of the Volkswagon; or that he said it was drizzling that day. Exhibit 1, looked at as a whole, rather shows that the first defendant was negligent because he was trying to overtake the Volkswagon when on his seeing the Mercedes Benz bus approaching, the first defendant suddenly applied his brakes which resulted in the accident. It was not unreasonable to say that the first defendant was trying to overtake the Volkswagon as my brother Apaloo held, if one considers the other evidence that he was conveying employees of the second defendant to work at Tema, and perhaps wanted to get there in time. The accident, according to the first witness for the plaintiff, happened on a straight road.

Again the view held that the first witness for the plaintiff was an interested party and as such was prone to tell lies to suit the case for the plaintiff and subsequently that of his own, is in my opinion not justified.

After all, the first witness for the defendants too was equally interested in the case on behalf of his employers at the time, i.e. the second defendant, and one can in those circumstances rightly say that he was there to support the defence. He too was not free from blame if his evidence concerning the accident were to be critically examined. Having said in examination-in-chief that on reaching Teshie, he saw a

Volkswagon behind them which ignored the first defendant’s

[p.557] of [1965] GLR 537 signal not to overtake, and that there was another vehicle approaching from the opposite direction, later under cross-examination, changed this story, and said that he only got to know it was a Volkswagon that was following them after it had overtaken their vehicle. The attempt made to justify the course taken by the first defendant, namely, that he could not swerve to the left for he would in all probability run into a ditch on his nearside, and that women hawkers and pedestrians normally stood by the road side at Teshie was not borne out by the evidence which rather shows that the accident occurred at a spot after Teshie.

It has been held time and again that every case has to be decided on its own merits. Therefore, while I do not doubt the principle referred to in Gibb’s Collisions on Land, and the two cases cited, i.e. Parkinson v.

Liverpool Corporation (supra) and Challen v. Bell and London Transport (supra) by my brother Apaloo, I am of the opinion that the facts of the present case do not make the decisions and the principle referred to applicable here, for the reasons already given as to the circumstances which led to the accident and the view held by the trial judge.

After all the learned judge heard and observed the demeanour of the parties and their witnesses at the time they gave evidence, and was therefore in a better position to form his impressions as to which of them had told him the truth. In such a case, it seems to me a dangerous course to adopt by holding, upon mere possibilities, that the view he took was wrong and that the defence case ought to have been preferred to that of the plaintiff. I would say that in the circumstances the proper course is to dismiss the appeal as far as the question of negligence is concerned.

On the question of damages, however, I have, after considering both counsel’s arguments and the case of

Manu v. Mensah23 come to the conclusion that the amount of £G2,500 awarded be reduced to £G1,500.

Save as to that, I would dismiss the appeal with costs for the plaintiff.

DECISION

Appeal allowed.

S. K. D.-B.