NKRUMAH v. NUNOO [1968] GLR 226

DIVISION: HIGH COURT, ACCRA

DATE: 8 MARCH 1968

BEFORE: APALOO J.A.

NATURE OF PROCEEDINGS

ACTION in negligence arising from a collision between a bus driven by the plaintiff and a car driven by the defendant, the defendant counterclaiming alleging negligence on the part of the plaintiff. The facts are sufficiently set out in the judgment of Apaloo J.A. sitting as an additional judge of the High Court.

COUNSEL

Tham for the plaintiff.

Joe Reindorf for the defendant.

JUDGMENT OF APALOO J.A.

At about 11 a.m. on 26 March 1964, a collision occurred between a Morris bus No. GF 4857 then in the charge of the plaintiff and a Chevrolet saloon car No. AE 9506 then being driven by the defendant. The accident occurred on a straight road, shortly after both vehicles passed a small village called Awaham junction. The weather was said to be bright and sunny and there was no problem of visibility.

I find that both vehicles were travelling in the same direction, namely, towards Accra, and shortly before the collision occurred, the Chevrolet car was just behind the Morris bus. The former sounded its horn and the defendant by this indicated to the plaintiff his wish to overtake. As there was no on-coming traffic and the road was otherwise clear, the plaintiff signalled the defendant to overtake. This he did.

It is established that in order to overtake, the defendant accelerated, drove to his offside and after gaining distance over the plaintiff’s lorry, returned to his proper side of the road. I find it proved that moments after this, the defendant brought his vehicle to a halt abruptly. The evidence is imprecise what the distance was between the two vehicles at this time. The plaintiff estimated it as three yards.

When the defendant stopped suddenly, the plaintiff for his part, almost intuitively applied his brakes and in an endeavour to avoid collision, swerved to his right. He did not completely succeed in avoiding an impact because I find that the left part of his lorry collided with the right back of the Chevrolet car. As a result of this, the plaintiff’s car sustained extensive damage. It was proved to my satisfaction that the damage to the plaintiff’s lorry was repaired by a Lebanese engineering firm called Huftal Engineering Company at a total cost of N¢600. The accident immobilised the plaintiff’s lorry and it was towed to Accra at a cost of N¢30. The evidence also satisfied me that the plaintiff sustained personal injuries and was [p.228] of [1968] GLR 226 admitted to the government hospital at Nsawam for two weeks and thereafter received treatment as an out-patient for about five months.

The plaintiff, by this action, seeks to recover from the defendant, damages for the injuries he suffered and the expenses to which he was put in repairing the vehicle and the loss he sustained in earnings. The plaintiff based himself on the fact that the defendant had been negligent in stopping abruptly and without a signal. There seems little doubt that if the plaintiff succeeds in establishing negligence against the defendant, he is entitled to recover his losses. The defendant disputes the charge of negligence and although he concedes that he stopped suddenly and without warning, he says he was obliged to so stop to avoid running over a little child who was then crossing the road. The defendant for his part, cross-charged the plaintiff with negligence inasmuch as the latter failed to stop or to swerve in such a manner as would avoid the collision, there being, according to the defendant’s pleading, sufficient distance between the two vehicles to enable the plaintiff do this. I think the defendant’s charge of negligence against the plaintiff can be disposed of quite simply. The defendant himself gave no estimate of the distance the plaintiff’s lorry was behind him when he stopped. The only evidence of this was given by the plaintiff who thinks it is about three yards. I find that the plaintiff swerved in an attempt to avoid the collision but was unsuccessful. Mr. Reindorf submits that the plaintiff must have been driving too close to the defendant and relies on the Highway Code to prop an argument that that would be negligence in the plaintiff. This view is not without merits but this aspect of the case was not sufficiently explored and the evidence is much too tenuous to justify a finding of negligence against the plaintiff. I therefore decline to hold that the plaintiff was to blame for the accident. The defendant having admitted that he stopped suddenly and without warning well-knowing that the plaintiff’s vehicle was following him closely, must, it seems to me, offer a reasonable explanation for his conduct. I should adjudge him negligent otherwise. As I said, the defendant’s explanation is that he stopped suddenly to avoid running over a little child who was crossing the road. If this explanation is true, one can well understand why the defendant gave no signal to warn the plaintiff’s vehicle of his intention to stop. The plaintiff says this explanation is a fabrication. He says he himself had a good view of the road for yards and no child crossed the road. Indeed he says it was a desolate place—one at which no child could reasonably be expected to be found. The controversy between the parties on this part of the case raises a simple issue of fact. I confess that its determination gave me

[p.229] of [1968] GLR 226 no difficulty. Having seen and listened to the witnesses, I believe the defendant told me the truth when he said a little child crossed the road and he stopped suddenly to avoid running over it. I am impressed by the fact that the defendant gave this as the reason for the sudden stopping at the earliest possible opportunity when he had hardly any time to invent a falsehood. Nobody suggests that there is any other reason for the abrupt stopping. It would be quite fanciful to suggest that the defendant stopped abruptly and risked an accident only for the fun of it.

In an endeavour to persuade me that a little child was unlikely to be found in that place, the plaintiff swore that it was complete bush and that there were no villages around nor were there human beings in the vicinity. I think on this part of the case, the plaintiff was less than frank. His witness Appiah said it was quite close to the village of Awaham, in fact only about 30 yards from it. It is unreasonable to suggest that human beings cannot be found 30 yards from a village. On this score, I accept the defendant’s evidence that a woman with bucket and clothes was on the offside of the road and there being a stream nearby was presumably washing clothes. I draw the inference that the child whom the child whom the defendant stopped to avoid, was with this woman and that the child was probably trailing behind her. I find that the defendant gave a satisfactory explanation of his abrupt stopping. In these circumstances ought I to hold him guilty of negligence? Before doing so, I asked myself: Did the defendant act reasonably or unreasonably by doing something which a reasonable person would not do and leaving undone something a reasonable person would do? My answer is, that the defendant acted as a reasonable person in an emergency. I accordingly acquit him of negligence.

Clearly, this is one of the cases in which there can be no liability without fault. The plaintiff has no more succeeded in establishing fault against the defendant, than the latter has succeeded in establishing it against him. In those circumstances, the loss must lie where it falls. I feel great sympathy for the plaintiff as he appears to have emerged the worse of the two from the accident. But my sympathy is no substitute for the law.

In the result, the plaintiff fails in this action and I give judgment for the defendant with costs which I assess at N¢80.

DECISION

Action and counterclaim dismissed.

F. S. T.