AGBENYEGA (AN INFANT) v. GHANA NATIONAL CONSTRUCTION CORPORATION [1968] GLR 969

DIVISION: HIGH COURT, ACCRA

DATE: 30 OCTOBER 1968

BEFORE: ANTERKYI J.

NATURE OF PROCEEDINGS

ACTION for damages for personal injuries sustained by the plaintiff as a result of the defendants’ negligence. The facts are fully stated in the judgment.

COUNSEL

J. N. Okine for the plaintiff.

Anson for the defendants.

JUDGMENT OF ANTERKYI J.

This is an action against the defendants, brought by the plaintiff, a school boy aged thirteen, suing by his next-friend Kwabla Adamali, for damages for personal injuries caused by the negligence of the defendants.

The story of the infant plaintiff, as told by him, is that on 7 November 1963 he was returning from Sokpe to Sogakope on the launch Auntie Dedei when the afternoon session of the school at Sokpe was over. The launch had ferried him and many other passengers including school children across the Volta from the Sokpe bank to the Sogakope bank where it had stopped. About 50 of the passengers in front of him had come out to safety, and when he was coming out, the launch suddenly moved causing him to fall into the water at his nearside of the ramp which served as a bridge between the deck of the launch and the landing stage, the concrete floor for landing, and causing his right foot to be trapped under the side of the front part of the ramp to his hurt: the skin of the whole of his right foot was torn off as a result. He remained with his right foot thus trapped under the ramp, until one Nyafli came to his rescue and took him to the hospital at Adidome where he received treatment given him by one Dr. Braun. And in his own words: “I sustained an injury on my foot—the whole skin of my right foot was peeled off and blood flowed—I felt pains severely. The teacher put me on a truck to Adidome Hospital— I had treatment at the hospital—I was admitted for about three months. I went back to the hospital the second time and was there for about four and a half months. I received treatment again . . . My mother cared for me during the periods I was admitted to the hospital—she stayed in the hospital during each of the two periods. On the second occasion I was in the hospital, my right foot was joined to my left leg and there was grafting of the skin. I suffered severe pains for about five weeks. Owing to this injury and the treatment, my class mates are now a year or a class ahead of me in the school. My foot is not completely healed. The injuries re-occur occasionally and I feel pains. I would desire to have a secondary school education if I should complete the elementary school education if the injuries [p.971] of [1968] GLR 969 permit my doing so. I am claiming £G2,500 damages for the injuries I have suffered.”

During cross-examination he admitted as true how the launch was operated with regard to the do’s and don’ts of passengers thereon up to the time of disembarkation. But he denied that at the material time, when the launch was still in motion, he went to the part of the deck where vehicles were positioned and then to the ramp to catch fish on it. He contended that he was in the middle of the ramp when the accident happened. He admitted that a policeman visited him at the hospital and took a statement from him, but denied that he told the policeman that it was one of the children that pushed him down while he (the plaintiff) was running to pick fish from the ramp. In re-examination, he said that he was at the middle of his left hand side of the ramp when the accident occurred. His third witness Nyafli, a school teacher who is alleged to have rescued him, gave evidence as to what he saw and did. On 7 November 1963—the material day—he was at the river-side in the afternoon when he saw the launch Auntie Dedei approaching the Sogakope bank of the Volta from the other (Sokpe) bank. The launch finally came to berth and passengers began to disembark. When a boy was coming out of the launch, in his (Nyafli’s) own words, “The boat moved a bit and this boy fell. Those passengers following the boy from the boat retreated to the boat and those passengers who had already come out began to run away from the boat. I rushed forward to the bank and I was waving to the steersmen to lift up the ramp as I saw that the ramp was pressing the boy. The steersmen raised the ramp and I lifted the boy and I ran up the bank with the boy. I observed that the boy’s right leg was skinned off or had the skin removed from a point below the calf to the foot—the blood vessels and the ligaments and the bones were showing—I took the boy to a nearby lorry and boarded the lorry with him. I called for the driver of the lorry—he came and drove us to Adidome Evangelical Presbyterian Church Hospital there. There he was admitted. I had observed the launch moving slowly towards the bank until the ramp touched the soil of the bank. There was nothing securing the ramp to stand firm. Then I saw passengers come out of the launch by passing on the ramp—the ramp had at that time been lowered. I saw no chain on the launch, nor did I see on it a chain used as a bar to passengers. Usually the launch carried a chain but on this occasion it carried none. The passengers were then coming out [p.972] of [1968] GLR 969 when it reached the boy’s turn to come out the launch moved itself as if it was adjusting its position, and the boy fell into the water in front of the ramp and his right leg was caught under the ramp. It was at that time that I ran and waved to the steersmen to lift the ramp. And when it was lifted I took the boy out as I have described.”

In his estimation the passengers on board the launch were about 200 among whom were a number of school children. On that day he saw nothing like vehicles aboard the launch. The incident happened at flood time when the waters of the Volta were high; but for that the launch would not have stopped at the height at which it did.

In cross-examination, he said that the incident occurred at about 5 p.m., when the afternoon school at Sogakope was over and he was walking to the bank to take a stroll, and that he was about 30 feet awayfrom the bank when he first observed the approaching launch, and that he at that distance had stood watching it. He had heard the bell sound the first time and the second, when the ramp was lowered and the passengers began to disembark, walking quickly out. He could see the platform of the launch. But, as he stated, no school children ran to the ramp. Nor did he see any school boy push the infant plaintiff down. When the ramp was lowered he did not see any fish come upon it—if fish had come upon the ramp, he said, he would have seen them. He denied that at the material time some fish came upon the ramp and that as Agbenyega (the infant plaintiff) was going to catch the fish, he was pushed down by another boy. After lifting Agbenyega up, he had not taken him first to the police station before he was taken to the hospital. He continued in cross-examination by saying: “On that day the launch did not land at its usual landing spot—by that I mean that the ramp was not lowered at the spot where it was usually lowered to touch the ground—but the launch came forward and closer a bit to the landing stage than it usually did. After the launch had stopped and people had come out of it the launch moved; it swerved to adjust itself. Because the launch was not chained to any object it moved from the original spot where it had landed. I cannot tell exactly the lapse of time between the time it landed and the time it swerved but it swerved when some people had come out. All this time the steersmen were up on the launch. I at that time did not see the workman concerned with operating the ramp. . . Because I saw the launch anchored to nothing that was why I am saying that it was tied to nothing. But I am not saying that whenever the launch berthed at that spot I saw it anchored to something. [p.973] of [1968] GLR 969

This launch Auntie Dedei has no device by which it can be tied to any object ashore, but the other launches had such devices. There is an anchor on it, but it is only lowered when it closes work for the day. I deny that there is always an anchor on it which is always lowered to maintain the position of the launch. I deny that the boy was not trapped under the ramp and that no part of the ramp skinned off the portion of the leg in question.”

The second witness for the plaintiff Dr. Richard Charles Braun gave evidence as to the condition of the infant plaintiff when he was brought and admitted to hospital, and of the treatment he gave him, upon his re-admission after his discharge. He had given the medical report accepted in evidence and marked exhibit A in which he had shown the injuries and the disability they entailed—a permanent partial disability for the rest of the life of the infant plaintiff—he assessed this disability, at ten per cent. According to the doctor, when Agbenyega was first brought to the hospital, “I examined him and found that he had sustained a severe laceration of the right foot with avulsion of much of the skin and sub-cutaneous tissues on the dorsal part of the foot and extending on the lateral side of the foot to include much of the heel and sole. There was exposure of the bones and joint but no fracture. Part of the skin was devitalised because of loss of blood supply . . . In respect of these injuries to the boy, there was grafting in three medical operations—the first was on 5 December 1963 at which time the flesh was taken from his thighs to cover the area of the foot that had no skin. Taking the areas on the thighs from which the skin was removed for this purpose, I say, a total area of eight inches by eight inches of skin was removed from the thighs . . . During the first of these operations only layers of the skin were transferred from the thighs to the foot. This operation did not restore to the foot the fat pad which serves to protect the foot when bearing weight. Because of this, when he began to walk on the thin layer of skin without padding the skin sole broke down and formed an open wound or ulcer. To try to improve this the boy was admitted the second time for operation on 9 December 1965. He was operated upon again on 25 January 1966. At this time a tube of skin and underline tissue or fat was lifted from the left calf of his lower limb—this was sewn to the wound on the right heel. In order for healing to take place this piece of skin was left attached to both the left calf and the right heel—that is his heel was sewn to the calf—this was to enable the piece of skin to [p.974] of [1968] GLR 969 receive its blood from the calf while attaching itself to the heel. Then on 21 February 1966, in another operation, the skin was detached from the calf and left entirely upon the heel. This has given the result that now, part of the fat pad of the right heel has been restored. So since that time while walking on it, the skin has not broken down again. During the treatment, I say the boy suffered considerable pain and agony. I am not surprised if the boy states the sore is not completely healed. I see that he cannot walk on his right foot normally as by touching the ground first with the heel and then front portion of the foot, but that he does, the other way round, have the front part first touching the ground before the back. I am not in a position to say if a specially made shoe worn by him could make him walk normally. I am of the opinion that much damage has been caused him. He cannot take part in a running race nor can he play a game like football.” During cross-examination he stated that his assessment of the ten per cent disability was based not upon the boy being a school boy, but upon the guide-line for the schedule of disability as published by the Ghana Ministry of Health, and upon his (witness’s) opinion as to how far this disability would affect his earning capacity and physical labour. In his opinion the accident had not caused the boy mental suffering in his learning capacity; as far as the physical side was concerned the boy could go to school. He knew the boy had lost much time, over two academic years—for he was in the hospital for three months in 1963-1964—in the middle of the academic year—and again he was in the hospital for four months in the 1965-1966 academic year. Earlier on, the plaintiff’s father and next friend, Kwabla Adamali, had given evidence as to the report he had about the accident—but this was hearsay. He stated that, at the time of the accident, Agbenyega was a school boy attending school at Sokpe while living at Sogakope, and that Sokpe and Sogakope are on the opposite banks of the River Volta. On the day of the incident he had visited Agbenyega at the hospital at Adidome where he observed that, “he had sustained a wound on his right foot. He was not well because of the injury. He was unable to walk—he was sad. He was in the hospital for three months before being discharged. He returned to the hospital again, because the wound re-opened about five months after he had been discharged, and kept about five months at the hospital. I visited him at the hospital on each of the two occasions, and I did so about ten times. In doing so I [p.975]of [1968] GLR 969 spent lorry fares. I gave money to his mother for his maintenance there. I paid hospital fees on his behalf.

These documents shown to me are some of the receipts for the payments I made. I tender them in evidence [accepted and marked as exhibits B1, B2, B3]. I still owe the hospital ¢14.00 as balance of hospital fees. As next friend I am claiming ¢G2,500 as damages for the injuries he received and for the pain and suffering.”

During cross-examination, he denied that the launch had a chain on it, and he described the operation for the coming of the launch to berth with regard to the ringing of a bell twice—the second ringing being after the lowering of the ramp for the passengers to disembark, when the ramp has been pushed by the launch up to the landing stage and the launch has finally come to a standstill. He said that after the accident, each time he visited his boy at Adidome he spent as fares the amount of four shillings from Sokpe to Adidome and back. At the close of the evidence for the plaintiff, the following facts were borne out:

(1) Before the accident, the launch had finally come to berth and the passengers had begun to disembark by passing over the ramp which had already been lowered and had reached its final position for disembarkation.

(2) There was no evidence that there was something like a bollard fixed and fastened to the ramp to keep it steady. There was no evidence that the ramp had some railings at its sides to prevent passengers walking on it from falling over into the water; but, as it is not denied by either side that the boy fell at almost the nearside of the ramp, it is reasonable to infer that, at the material time, the ramp carried no side railings or other device to protect persons walking along its sides, in the event of a sudden lurch of the launch when at berth. Nor is there evidence that in disembarking the passengers walked, along it in a single file.

(3) Some of the passengers had already disembarked by walking along the ramp, and, as the boy was also following suit, the launch moved as if it was adjusting its position, causing the boy to fall over his near-side edge of the ramp. The result of the fall was that his right foot became trapped under that edge of the ramp, causing the injuries to his foot as described by the doctor, the plaintiff’s second witness.

(4) When the boy thus fell down, the passengers following him retreated from the ramp into the launch, and those in front of him ran from the ramp to safety ashore.

[p.976] of [1968] GLR 969

(5) Before the fall no other person (or boy) had given him a push.

(6) No fish collected on the ramp when it was lowered and there was no scramble for fish by any persons.

(7) Before the passengers started to disembark no school children had run to the ramp.

(8) The plaintiff’s third witness (Nyafli)—the schoolmaster—ran to the boy’s rescue from a distance of about 30 feet at which he had been standing and watching the approaching launch; and he had to wave to the steersman to raise up the ramp before he was able to lift the boy up.

In defence the defendants, through the witnesses called on their behalf, denied that the accident resulting in the injuries to the infant plaintiff was caused by the launch making any sudden move. The witnesses contended that the plaintiff was pushed down by the side of the ramp by another boy in their attempt to scramble for fish which the ramp had collected, and that this fall resulted in the ramp causing those injuries.

The defendants’ first witness, Abudulai Dagomba, an escort police constable had on that day, when off duty, come to the Sogakope bank of the Volta at about 3 p.m., to take the breeze up to about 3.30 p.m., when he saw the launch approaching from the Sokpe bank. In his own words:

“When this launch came near the bank—the Sogakope side—as it was nearing it drew small fishes—this was when it was drawing near to the landing stage. At this time the ramp had been lowered. Then I saw two school boys. They bent down under a safety chain and got to the ramp to catch the fish on the ramp. When the first of the two boys bent down to get at the fish his friend or mate pushed him down; and when he fell down the launch came and struck his foot. At this time the Auntie Dedei was in motion. Some ticket sellers on this launch shouted to the operators of the launch to stop it. There were at this time many people at the spot where I was but I was the only policeman there. When the boy was struck I saw a schoolmaster take the boy away and put him on a lorry. I went to the police station and lodged a report—also the launch driver and another also came and made a report to the police. In my report I said but for the launch driver stopping the launch the boy’s foot would have been cut off. The schoolmaster took away the boy because his foot had been struck by the launch. I observed blood from the boy’s foot.” [p.977] of [1968] GLR 969

In answer to the court, this constable said he was standing about eight to ten yards away from the spot at which the boy fell.

In cross-examination he had stated that when the accident happened, “all of us ran to the spot. I did not see where the school-master came from. “ Before that occasion he (the witness) had been visiting the bank of the river every evening to take the breeze, and when the waters of the river had risen high as they had on that occasion, the launch, usually, in coming to berth, collected fish as it approached the bank. And on that occasion he saw fishes on the middle portion of the front of the ramp. He could not tell the distance between the spot at which the boy fell and the nose end of the ramp because at the time of the fall the launch was still in motion. And in further cross-examination he had said inter alia:

“I made a report that the boy had been knocked by the launch and he sustained injuries. When I made this report I saw other people from the launch come to the charge office and make a report. I did not see the headmaster who rescued the boy at the police station on that day. The headmaster had to wade through the water for a distance of about six feet to rescue the boy—I had only taken two steps into the water. It is true I was present and I saw everything—I saw the boy passing under the chain.”

The defendants’ second witness Dotse Osabutey stated he was the coxswain on the launch at the material time. And this was his version in examination-in-chief as to what happened in relation to the incident:

“When we were getting to the landing stage at Sogakope—when we were about ten paces from the landing stage I caused the launch to move dead slow—I changed into gear to bring the launch to a standstill—but it still moved on slowly. Then I rang the first bell for the ramp operator to lower the ramp; all this time the launch was moving on slowly. All at once I heard shouts of ‘Hey! Hey! Hey!’ All this time I was moving ‘astand’; by ‘astand’ I mean the propeller works to move the launch in the reverse direction. When I rang the bell for the ramp to be lowered I saw the operator lowering the ramp. The noise of ‘Hey! Hey! Hey!’ was made in the launch. Then I saw all of the school boys, about twelve in number, pass under the chain and go and stand on the ramp. Then I saw two of them go out of the launch—one of them fell down at the left side of the ramp, and I saw the other of these two go ashore. The two boys had passed under the chain and got to the ramp and when they were going out of the ramp to the bank one of them fell down [p.978] of [1968] GLR 969 while the other went out to the bank. The one who fell was chasing fish when he went and fell, but the other one came out and ran to the bank. Then the launch stood still. I then rang the second bell for the ramp operator—he then removed the chain. Then as I saw the boy still lying at the left side on the landing stage—on the ground—I climbed down and asked the ramp operator what the matter was. Then I observed that the boy who fell had sustained injuries. I also saw small fishes on the landing stage. Then the passengers remarked to the boy by saying to him, ‘What have you done, the launch had not stopped, but you have followed the fishes to your hurt!’ As the boy lay there, a teacher came and raised him up and took him into a vehicle. I went with the ramp operator to the police station and made a report.” During cross-examination he had stated inter alia:

“I saw the boy on the landing stage on the ground—that was before the headmaster came and raised him up. The boy fell at the spot where I saw him lie. I saw fishes, about eight of them, on the ground and—on the landing stage. At the time I saw the boy and the fishes the launch had stopped and the passengers were alighting and going out of the launch. When I had seen one of the two boys go out of the launch, and I had come to the spot where the other fell, at that time about 200 passengers had gone out of the launch . . . When I saw the boy fall down I saw him do so not into the water but on the ground—the landing stage—on the left side of the ramp.” And as to these events this was the account of the defendants’ third witness, the ramp operator himself:

“When we were about to land . . . about ten feet to the landing stage I began to lower the ramp—when it was going down the ramp collected water and out of the water fishes jumped on to the ramp. I saw two school boys pass behind me under the safety chain. In operating the ramp my back is turned towards the passengers . . . and I press down with one hand one of the two levers attached to the ramp. When the two boys passed under the safety chain I shouted at them but they paid no heed to me—I was operating the ramp and shouting at them at the same time. At that time I saw them the launch had not come to a standstill—it was still in motion. Then I saw these two boys collecting the fishes from the ramp and one of them fell down. I do not know why he fell down. The boy fell at almost the end of the left side [p.979] of [1968] GLR 969 of the ramp. The other boy then ran out. When the boy fell the ramp was almost touching the ground or stage—it eventually touched the ground or stage. When it touched the ground or stage the ramp moved forward about five or six feet before it stopped, as it usually does. When the boy fell and the ramp touched the stage the ramp pressed the boy’s leg—I immediately raised up the ramp and he was picked by a person I saw . . . I then lowered the ramp and removed the safety chain for the passengers to alight. All this time I was behind the ramp and in the launch itself.” The defendants’ fourth witness general police constable Puduglo gave evidence that while stationed at the Sogakope Police Station on 7 November 1963 a report of an accident was made to the police and he was detailed to investigate the matter. No written statement was obtained by him on 7 November 1963, and no station diary was produced to show the facts of the alleged report. Fourteen days after the report, the defendants’ third witness submitted his own written statement, exhibit 1, dated 21 November 1963 to him the defendants’ fourth witness. And on the same day 21 November 1963 he obtained a statement exhibit 2 dated 21 November 1963 from the defendants’ second witness. On 18 November 1963 he went to the hospital at Adidome and obtained from the infant plaintiff a statement in Ewe. The defendants’ fourth witness stated in-chief that Awuku Agbenyega “gave answers to certain specific questions I asked him and I wrote down the answers—this statement was taken on 18 November 1963.” The statement was accepted and marked exhibit 3. The defendants’ fourth witness admitted in cross-examination that exhibit 3 was not signed (but thumbprinted) by Agbenyega, and that he was in pain when he obtained the statement from him. The defendants’ fifth witness Odonkor, the inspector then in-charge of the Sogakope Police Station, after the alleged investigation by the defendants’ fourth witness, did open a police docket which was tendered in evidence as exhibit 4. The defendants’ sixth witness Essandoh, the chief superintendent-in-charge of the Sogakope area, received the docket and closed it eventually as he found nothing savouring of crime about the incident. The defendants’ seventh witness, the mechanical superintendent gave evidence as to how the launch Auntie Dedei was operated. He was the last witness for the defence. He was not an eyewitness of the incident. At the close of the case for the defence I find the following facts as emerging from it: The defendants’ second witness’s account of the

[p.980] of [1968] GLR 969 incident brings out these important points:

(1) While the launch was still in motion:

(i) The noise of “Hey! hey! hey!” was made when the ramp was being lowered—it had not been lowered completely—and the twelve boys passed under the chain and stood on the ramp.

(ii) Two of these boys were going out of the ramp to the bank when one of them fell as he was chasing fish—the other boy came and ran to the bank.

(2) When the launch finally stood still:

(i) the defendants’ second witness rang the second bell for the removal of the safety chain, and he saw the boy still lying at the left side of the ramp. The boy thus fell before the second bell rang.

(ii) the defendants’ second witness climbed down and asked the defendants’ third witness (the ramp operator) what the matter was.

(3) The defendants’ third witness account of the incident brings out the following points: As the launch was still in motion,

(i) Only two boys (and not twelve as seen by the defendants’ second witness) passed under the safety chain and came and stood on the ramp as he was lowering it.

(ii) When the two boys thus got to the ramp they started collecting fish from the ramp, and one of them fell down, at a time when the ramp was almost touching the landing stage.

(iii) When the ramp touched the landing stage it pressed the boy’s foot and moved along the stage for about five or six feet before it stopped.

(iv) Then the defendants’ third witness raised the ramp and the boy was picked up.

At this stage I unhesitatingly make the following observations from these three accounts of the events as stated by the defence through the defendants’ first, second and third witnesses:

(1) No one can stand safe on the ramp during the process of lowering it from its perpendicular state to its horizontal state.

And, also, as the defendants’ second witness (the coxswain who was aloft) speaks of twelve boys, the defendants’ third witness, operating the ramp, speaks of only two boys, passing under the safety chain and going to stand on the ramp, this account of the defence that some boy or boys got on the

[p.981] of [1968] GLR 969 ramp as it was being lowered must be deemed to be palpably false.

(2) The defendants’ first witness Dagomba standing ashore about ten yards away at the time, had seen two boys go on the ramp after it had been lowered, and had seen the first boy being pushed down by the second when the first bent down to catch the fish on the ramp. The defendants’ third witness who had the ramp in front of him did not know why this boy fell down. The defendants’ second witness who was aloft in the launch saw two, out of the twelve boys who had got on the ramp, going off the ramp towards the bank—one ran out of the ramp, but the other fell down as he was catching fish. This account of the defence that fishes were being caught by two boys, and that, in the attempt, one of them (the plaintiff) fell down, pushed or unpushed by the other, must therefore be deemed to be disgracefully false: for the defendants’ third witness, the ramp operator, who would in the circumstances have those boys standing on the ramp in front of him, must have known what caused the boy to fall; but he said he did not know.

(3) If, according to the defendants’ third witness, after the boy had fallen down and his foot hadbecome trapped under the ramp, the ramp had to move forward along the landing stage for about five or six feet, the boy would either have been carried forward by the ramp for that distance, or he would have been seen, not at the end of the nearside edge of the ramp as he was, but somewhere almost at a point about six feet from the front edge. ‘There is no evidence that he was pushed forward that distance, nor was there evidence that he was found at a point about that distance from the front edge of the ramp.

(4) According to the defendants’ second witness Osabutey during cross-examination, “The steadying device for the Auntie Dedei is the ramp which is as heavy as 30 tons.” If that is so, as the defendants’ third witness (the ramp operator) did state that after the boy had fallen, the ramp did move forward for about five or six feet before coming to a dead stop, then the injuries would have been so severe as to result in the crushing of the boy’s foot, and not in the mere skinning of his foot. But the doctor’s evidence—evidence of the plaintiffs’ second witness—states that the boy’s foot was not fractured. With regard to the written statements exhibits 1 and 2 of the defendants’ second and third witnesses as dated 21 November 1963, although counsel for the plaintiff raised no objection to their reception, and they were received in evidence, they are not admissible

[p.982] of [1968] GLR 969 in evidence, even though they themselves as makers of the respective statements have given evidence.

These statements are inadmissible evidence, because the defendants’ second and third witnesses, being concerned with the safe operation of the launch in question, were each a person interested as being a person interested in justifying or explaining his conduct; vide Holton v. Holton [1946] 2 All E.R. 534 and the statements therefore are inadmissible under Order 37, r. 62 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), on the grounds that Agbenyega’s (the infant plaintiff’s) statement exhibit 3 dated 18 November 1963 (i) was not signed by him as required by Order 37, r. 62 of L.N. 140A; and as (ii) it was obtained by his alleged answers to specific questions put to him, at a time when he was in pain, it is, even if at all admissible, of no evidential weight, in my view, under Order 37, r. 65 (1). Besides, as the incident is alleged to have happened on 7 November 1963, each of the statements exhibits 1 and 2 dated 21 November 1963 and the statement exhibit 3 dated 18 November 1963, cannot be said to have been made contemporaneously with the occurrence or existence of the facts stated therein, and if each could be said to be admissible at all they, in my view, lack any evidential weight under Order 37, r. 65 (1).

And therefore it is not these documentary exhibits, but the evidence on record that must be considered by the court. After resolving all the facts I come to the conclusion that the account of the incident as given by the infant plaintiff and the plaintiff’s third witness accords with reason and that, on the facts, the account given by the defence as being the cause of the accident does not fall within reason.

I find as a fact that the infant plaintiff fell down after the launch Auntie Dedei in which he was a passenger had completely come to berth at its usual landing place, and after the final bell had been rung for the passengers to alight, and that, at a time when a considerable number of them had alighted before him (the infant plaintiff) by passing over the ramp and as he was following them, the launch did not move as if it was adjusting itself, resulting in the boy Agbenyaga falling down near the ramp, and that the injuries, as described by the plaintiff’s second witness (the doctor), which he suffered, were caused by his foot being caught under the ramp upon such fall and a subsequent adjusting move of the launch with its ramp. The defendants denied that this fall arose from a sudden move of the launch while the passengers were landing at the time. In the

[p.983]of [1968] GLR 969 absence of any such adjusting motion of the launch, and the consequential move of the ramp undeniably attached to it, the foot of the boy could not have been trapped under the ramp.

The next question to resolve is whether or not those injuries flowed from the breach of any duty owed him by the defendants at the material time. I have considered very carefully the argument of both counsel as to the legal position of the infant plaintiff then on the launch vis-a-vis the defendants, whether he was a trespasser or bare licensee or invitee.

There is no doubt that the agents or servants of the defendants, i.e. the defendants’ second and third witnesses, knew of his presence on the launch as being within a class of persons (school children), who were known to have been on the launch. The arguments of counsel relative to each of these three categories do not solve the question. The facts as found by me do not point to a breach, within the launch in motion at the material time and place, by the infant plaintiff of any conditions imposed by notices or otherwise, so as to make him a trespasser. There is no evidence that each of the school children on board the Auntie Dedei at the time—of whom the plaintiff was one—had been there by means of a ticket. But his presence on that launch at that time, as well as that of each of the other school children, being known to the servants of the defendants, these servants as agents of the defendants, did impliedly undertake, gratuitously or otherwise, to perform the service of contract of carriage by ferrying him across the Volta from the Sokpe bank to the Sogakope bank. Each of them was a “passenger,” for there is no reasonable evidence on record establishing positively—after I have found untenable the defendants’ version of scrambling for fish by two boys passing under the safety chain and getting on to the ramp—that the infant plaintiff was a trespasser at the time of the accident. As stated in Salmond on Torts (14th ed.), p. 394: “the position of a licensee must be distinguished from that of a person for whom the occupier has undertaken, even though gratuitously, to perform some service; for example, a gratuitous contract of carriage . . . Such a contract imposes a duty of reasonable care in the performance of it, and this duty extends to ascertaining the safe condition of the premises on which the contract is to be performed. ‘The distinction made by Sir John Salmond between the measure of duty owed to one who is a licensee and nothing more and to one who is a licensee for whom some service has been undertaken is, we think, entirely sound in principle.’ So he who lends his motor-car to a friend is [p.984] of [1968] GLR 969 not bound to ascertain its safe condition; but he who takes his friend for a drive apparently is so bound.”

The defendants, in the circumstances, owed the infant plaintiff this duty of care in the performance of this contract of carriage, right from the moment of embarkation until he had completely got off the launch. The ramp from which he fell, was a part of the launch. The fall occurred before he could land.

There is no evidence that the launch Auntie Dedei carried cables at both side ends of the ramp for mooring it to the bank of the river, to steady it when the river is in flood, and that the launch was so moored at the material time. Nor is there evidence that the ramp carried railings on either side to protect passengers alighting when the Volta is or is not in flood. But there is evidence, inferentially, that the passengers are allowed to alight en masse, because there is none to show that they are requested to file singly along the ramp to land. The notices referred to by the defence apply to prohibitions against certain acts of passengers when the launch starts until it comes to berth. In these circumstances, I find no sufficiently reasonable facilities or precautionary devices affording the passengers opportunity to land in safety. And the infant plaintiff could not reasonably be held to have foreseen that the launch could have made a sudden move, as I find it did, while he was walking away by the side of the ramp. That such an accident had never before happened is not ipso facto evidence that the operations for landing passengers were reasonable when the facts show that they are not.

The defendants, it must be deemed, could reasonably have foreseen the likelihood of the danger of a passenger falling off the ramp, in the absence of such sufficient reasonable facilities or precautionary measures or devices for the safe landing of passengers aboard the launch, and, also the likelihood of an injury resulting from the absence of such reasonable measures. They have failed to explain away the cause of the sudden move of the launch at the material time. It was this sudden move which caused the fall of the plaintiff resulting in his foot being trapped under the side of the ramp which was a portion of the launch. The accident, undeniably, did not occur after the infant plaintiff had completely reached safety off the ramp. The implied obligation of carrying safely a passenger extends from the time he is attempting to go on board to the time he completely disembarks from the premises (the launch). I therefore hold that there was on the part of the defendants a breach of duty of care owed by the defendants to the passengers of

[p.985] of [1968] GLR 969 whom the plaintiff was one, and that such breach was the cause of the accident, and that that accident resulted in the injuries he sustained.

In the light of the above findings, having considered very carefully the evidence of the doctor regarding the condition of the injuries and their resulting pain and suffering by the plaintiff, their effect on his future life, I cannot but enter judgment for the plaintiff.

Upon the court pointing out to counsel for the plaintiff that it was not his to quantify the damages as stated on the writ, Mr. Okine with leave of the court amends the writ by deleting the figures quantifying the damages. There will be judgment for the plaintiff against the defendants in the sum of N¢6,000 as damages with costs of N¢800 including counsel’s costs of N¢600.

DECISION

Judgment for the plaintiff.

D. R. K. S