AJIROBAH v. UNITY TRANSPORT AND ANOTHER [1966] GLR 332

Division: HIGH COURT, SEKONDI

Date: 25 APRIL 1966

Before: DJABANOR J.

CASES REFERRED TO (1) Brookhurst v. War Office, The Times, 15 November 1957.

(2) White v. Broadbent [1958] Crim.L.R. 129, C.A.

(3) The Llanover [1947] P. 80; [1948] L.J.R. 108; 177 L.T. 591; 63 T.L.R. 468; 80 L1.L. Rep. 433. [p.333] of [1966] GLR 332

NATURE OF PROCEEDINGS

ACTION against the defendants for damages caused to the plaintiff’s vehicle as a result of the negligent driving of the second defendant, servant of the first defendant. The facts are fully set out in the judgment.

COUNSEL

E. B. Gaisie for the plaintiff.

C. M. Cann for the defendant.

JUDGMENT OF DJABANOR J.

The plaintiff is the owner of Bedford commercial lorry No. CP 8268, driven by his driver Awudu Ramain, and the first defendant is the owner of Mercedes Benz cargo truck No. AN 9483 and the employer of Kwame Eduaful—the driver of the said cargo truck. On 1 November 1963 there was an accident at mile 29 on the Sekondi—Cape Coast road involving these two vehicles, and this action has been brought by the plaintiff against the first defendant and the driver of the vehicle, charging that the accident was caused by the negligence of the second defendant, and claiming damages therefor. The first issue, naturally, is whether or not the accident was caused by the negligence of the second defendant. The facts which are not disputed are that because of a flattened tyre, the driver of the plaintiff parked his vehicle on his proper side of the road in order to change the tyre. Shortly afterwards the second defendant who was driving in the same direction as the plaintiff’s driver towards Sekondi was driving past, when because of the nearness of an approaching petrol tanker from the opposite direction he had to cut in, and in so doing damaged the plaintiff’s stationary vehicle. The facts in dispute are: (a) Whether the plaintiff’s driver signalled to the approaching second defendant to pass, and if so what sort of signal he gave? (b) How close was the second defendant when he saw the said signal of the plaintiff’s driver? (c) Did or could the second defendant have seen the approaching petrol tanker in time to avoid the accident?

(d) Whether the plaintiff’s driver was negligent?

According to the plaintiff’s driver, when he parked to change his tyre he stood at the back of his vehicle to signal to any vehicles that might be passing. He said he first saw a petrol tanker coming from the Sekondi direction. Then he saw a Mercedes Benz car approaching from the Cape Coast direction. He therefore signalled to the Benz car to stop so that the tanker might pass but the Benz car did not stop and continued with speed. He ran from the road in fear of his own safety and he saw the tanker pass and the Benz car run into his stationary vehicle. He stuck to this evidence under cross-examination. He called no further evidence on this aspect

[p.334] of [1966] GLR 332 of the case. A sketch plan of the road and the relative position of the vehicles did not prove helpful. According to the second defendant (the defendant’s driver) when he was nearing the place of the accident he entered a curve in the road. He then saw the stationary vehicle and he sounded his horn. He then saw someone standing by the side of the stationary vehicle and signalling him to pass. It was the plaintiff’s driver. He therefore swung out to pass and then he saw the driver signalling that he should stop. He was then quite close to the plaintiff’s stationary vehicle. At the locus in quo this witness said he was seventeen paces away from the stationary vehicle when the plaintiff’s driver started to stop him. He said he was too close to stop without endangering another life; so he decided on the spur of the moment to cut in, and that is what he did. He continued:

“A petrol tanker was then approaching in the opposite direction. When I first saw the tanker I was about twenty feet from the stationary one. I think the petrol tanker was also about 26 feet from the stationary vehicle. I therefore passed through but the side of my lorry grazed the side of the stationary vehicle and I went and stopped in front of it.”

Under cross-examination he told the court that one could see farther from the place of accident towards the Cape Coast direction than towards Sekondi. He also said he first saw the stationary vehicle when he was 57 feet away and started to sound his horn and lower his speed. Then the other driver signalled him to pass and so he went on. This is what his driver’s mate said happened:

“On the way after Cape Coast when we were about to reach Antismbuah village, I saw a stationary vehicle on the left of the road, and the second defendant started to sound his horn. I saw that the driver of the stationary vehicle came to the back of his lorry and signalled to us to pass. When the second defendant swerved to the right to pass then I saw the other driver signalling us to stop—when the second defendant had got to about 30 feet from the stationary vehicle. It was too late to stop. If he had stopped the lives of the passengers would have been endangered. He therefore cut through.”

These are therefore the rival stories of the plaintiff’s driver as opposed to that of the second defendant and his mate. In order to resolve these facts I have to determine the matter of onus of proof.. It seems to me that the principle of res ipsa loquitur must apply in this instance and that the driver of the moving vehicle must show that he was not negligent in running into the stationary one. The [p.335] of [1966] GLR 332 second defendant’s explanation is contained in paragraphs (4) and (5)(c) of his statement of defence. These are as follows:

“(4) The defendants aver that at all material times the plaintiff ‘s servant or agent then in charge of vehicle No. C.P. 8268 parked the said vehicle on a sloped part of the road and within a curve and when the second defendant was about to overtake it, a vehicle suddenly emerged from the opposite direction in the curve and there was no opportunity left for the second defendant to avoid hitting the plaintiff’s vehicle which was parked within the curve.”

If the facts were as stated above I would have found them a good case of accident although the English Court of Appeal held in the case of Brookhurst v. War Office, The Times, 15 November 1957.1 that where a landrover was parked in such a manner that the traffic became one way only and as a result an accident occurred when one of two vehicles approaching each other skidded the parking in those circumstances, while inconsiderate and selfish, could not be held to be actionable negligence causing or contributing to the accident.

But the evidence of both the second defendant and his driver was different from what they pleaded. Their explanation was that the plaintiff’s driver caused or contributed to the accident by beckoning them to pass when a tanker was approaching from the opposite direction, and trying to stop them when he realised this too late. In the case of White v. Broadbent [1958] Crim.L.R. 129, C.A.2 it was held that the driver of an overtaken vehicle was liable in negligence for waving a following vehicle to pass when it was not safe to do so. Similarly I think it would be negligence of the driver of a vehicle which was stationary at or on a curve to wave an on-coming lorry to pass when it was not safe to pass. But in this case we visited the locus in quo and I am of the clear opinion that the plaintiff ‘s vehicle was not parked in a curve or obscure place. I myself thought that from the Cape Coast direction one should see the parked vehicle at least some 80 paces away. Also from the position of the parked vehicle one could even see the road farther towards the Sekondi direction than towards the Cape Coast direction. The plea therefore by the second defendant that “a vehicle suddenly emerged from the opposite direction on the curve and there was no opportunity left for the second defendant to avoid hitting the plaintiff’s vehicle which was parked in a curve” could not be correct. My observations at the locus in quo did not bear that out. Paragraph (5) (c) of the defendants’ statement of

[p.336] of [1966] GLR 332 defence also reads, “He [meaning the plaintiff’s driver] failed to take necessary precaution to warn other road users of the presence and position of the plaintiff’s vehicle at the time.” In fact the parties agreed in their evidence that the plaintiff’s driver stood behind his vehicle and warned other road users of his presence.

The evidence of the second defendant explaining the cause of the accident was different from what he pleaded but, it not having been excluded, I am in law bound to take cognizance of it. The second defendant’s case was that the plaintiff’s driver waved him to pass when it was unsafe to pass. In my view of the facts of this case I do not think that even if that was so, the plaintiff’s driver was to blame for the accident. I say so for this reason. If two vehicles are moving in the same direction then the one behind is entitled, I would even say supposed, to act upon the signals of the one in front. In these circumstances if the one in front gives the wrong signal and the one behind acts upon it to his detriment, I would say that the one in front was negligent. But where one vehicle is about to pass a stationary vehicle, the moving vehicle’s driver must rely on his own judgment. He may rely on the signals of the driver of a stationary vehicle only if the stationary vehicle is parked in a position where the moving vehicle’s driver cannot see beyond the stationary one.

In this instant case the plaintiff’s vehicle was parked not on a curve but in the straight after a curve, where there was sufficient time to see on-coming vehicles and act accordingly.

At the locus in quo the second defendant explained that he saw the on-coming tanker when he was 25 paces from the stationary vehicle, and the tanker itself was about seventeen paces from the stationary vehicle. In my view he should have seen the tanker long before he claimed he did, and he should not have then driven on. He would be negligent if he did in fact fail to see this tanker. I think, however, that he could not have failed to see such a big tanker. In my view the second defendant is guilty of the charges levelled against him in the plaintiff’s particulars of negligence. I find the plaintiff’s claim proved against both defendants.

Now as the quantum of damages: the principle as stated in Charlesworth on Negligence (4th ed.), p. 582, para. 1255 is that:

“Where the 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. If the chattel is profit earning, its value will take into account the profits which it was likely to earn in the future, and so no additional damages can be recovered for loss of future profits, except such profit as were being earned when the chattel was destroyed.”

[p.337] of [1966] GLR 332

Reference is made to the case of The Llanover. [1947] p.80.3 That case decided that in the case of a total loss of a ship, the damages of full market value includes the enhanced value due to trading conditions, and there is no room for any claim in respect of loss of trading profits beyond the profits the ship would have earned on the voyage on which she was engaged. The facts are that the body and canopy of the vehicle were wrecked, the windscreen and its frame were damaged; the steering column was bent and the battery was broken. Personally I would not wish to repair such a damaged vehicle for use again. After all it was sold at second hand in 1958, and was used for five years before the accident. I agree that it was not worth repairing.

I agree with counsel for the plaintiff that it is the pre-accident value of the vehicle that must be claimed but he led no evidence to assist me in ascertaining that value. I would say that with the present situation regarding scarcity of vehicles that a five year old secondhand, three ton Bedford commercial vehicle cannot be worth more than £G400 especially when it has been used, as has been claimed, almost daily all that time. I would accept the evidence that the trip on which the accident occurred might have fetched a profit of £G9 10s. and I would add that to the damages. There is no evidence of the use of alternative transport so I award no further special damages.

In the result I give judgment for the plaintiff against both defendants for £G409 10s. 0d. (¢982.80) and 50 guineas (¢126.00) costs.

DECISION

Judgment for the plaintiff.

S. K. T.