NYAME vs. TARZAN TRANSPORT AND ANOTHER [1973] 1 GLR 8

CASES REFERRED TO

(1) Watt (or Thomas) v. Thomas [1947] A.C. 484; [1948] L.J.R. 515; 176 L.T. 498; 63 T.L.R. 314;

[1947] 1 All E.R. 582; 1947 S.C. (H.L.) 45, H.L.

(2) Baker v. Market Harborough Industrial Co-operative Society Ltd. [1953] 1 W.L.R. 1472; 97 S.J.

861, C.A.

(3) Bray v. Palmer [1953] 1 W.L.R. 1455; 97 S.J. 830; [1953] 2 All E.R. 1449, C.A.

(4) Roe v. Minister of Health [1954] 2 Q.B. 66; [1954] 2 W.L.R. 915; 98 S.J. 319; [1954] 2 All E.R.

131, C.A.

(5) Jones v. Great Western Railway Co. (1930) 47 T.L.R. 39; 144 L.T.194; 36 Com.Cas. 136, H.L.

(6) Caswell v. Powell Duffryn Associated Collieries Ltd. [1940] A.C.152; 108 L.J.K.B. 779; 161 L.T.

374; 55 T.L.R. 1004; [1939] 3 All E.R. 722, H.L.

(7) Miller v. Ministry of Pensions [1947] W.N 241; [1948] L.J.R. 203; 177 L.T. 536; 63 T.L.R. 474;

91 S.J. 484; [1947] 2 All E.R. 372.

NATURE OF PROCEEDINGS

APPEAL against a judgment of the High Court given in favour of the plaintiff for damages for personal injuries sustained as a result of a collision between the vehicles of the first and the second defendants. The facts are fully set out in the judgment of Azu Crabbe J.S.C.

COUNSEL

J. B. Quashie-Idun for the appellant.

A. K. Mmieh for the respondents.

JUDGMENT OF AZU CRABBE J.S.C.

On 13 August 1964, at a place between Nkawkaw and Awendadze Village, on the Nkawkaw-Kumasi road, a vehicle No. AG 5744, owned by the second defendant, collided with a Bedford truck No. AG 8721, owned by the first defendant-company. The plaintiff, who was a fare-paying passenger on the former vehicle, sustained personal injuries as a result of the collision. In an action before Mensa Boison J. in the High Court, Kumasi, the plaintiff claimed damages from the owners of the two vehicles, alleging negligence on the part of their drivers. In his judgment following the trial Mensa Boison J. said:

“In the result I am satisfied that the accident was wholly caused by the negligence of the first defendant by driving into the

[p.11] of [1973] 1 GLR 8 path of the second defendant’s bus and by lack of proper control failed to avoid colliding with the second defendant’s vehicle. I do not find any negligence in the driver of bus No. AG 5744.”

The first defendant has now appealed to this court, and the argument in support of the appeal is based solely on the ground that the judgment cannot be supported, having regard to the evidence.

This court is loth to disturb a finding of fact by a trial judge who has had the advantage of observing the demeanour of the witnesses, “their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial,” per Lord Macmillan in Watt (or Thomas) v. Thomas [1947] A.C. 484 at pp. 490-491, H.L. But it is far more ready to reverse his decision in a case which depends on inferences from admitted or undisputed facts.

Negligence is a question of fact, and the burden is on the plaintiff to prove that the defendant’s negligence was the cause of the accident. The plaintiff must adduce evidence from which the inference can be drawn that the negligence of the defendant led to the accident, and the defendant can only be held liable if he is shown on the balance of probabilities to have caused damage to the plaintiff.

In this case the drivers of the two defendants were in control of vehicles which collided in circumstances which must have been due to the negligence of the driver of the first defendant or the second defendant. The basic rule is that the plaintiff must prove his case on the balance of probabilities, and if the inference is that only one of the drivers had been negligent, and it is impossible to say which, then the plaintiff would be held to have failed, unless the two defendants had refused to give evidence, in which case an adverse inference against them could be drawn. In Baker v. Market Harborogh Industrial Co-operative Society, Ltd. [1953] 1 W.L.R. 1472, C.A. Somervell L.J. stated the rule in its practical form at p. 1475:

“It is, of course, possible that a plaintiff injured by negligence may fail because he is unable to establish whether the negligence was ‘A’s’ or ‘B’s’. If his difficulties are due to any failure of ‘A’ or ‘B’ or both to call available evidence, adverse inferences may be drawn. Here all available evidence was called, and the question, as it seems to me, is one of probable inference from the facts as established.”

Denning L.J. (as he then was) also said at p. 1476:

“It is pertinent to ask, what would have been the position if there had been a passenger in the back of one of the vehicles who was injured in the collision? He could have brought an action against both vehicles. On proof of the collision in the centre of the road, the natural inference would be that one or other or both were to blame. If there was no other evidence given in the case, because both drivers were killed, would the court, simply because

[p.12] of [1973] 1 GLR 8 it could not say whether it was only one vehicle that was to blame or both of them, refuse to give the passenger any compensation? The practice of the courts is to the contrary. Every day, proof of the collision is held to be sufficient to call on the two defendants for an answer. Never do they both escape liability. One or other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the court would unhesitatingly hold that both were to blame. They would not escape simply because the court had nothing by which to draw any distinction between them. So, also, if they are both dead and cannot give evidence, the result must be the same. In the absence of any evidence enabling the court to draw a distinction between them, they must be held both to blame, and equally to blame.”

In my view, the principle in Baker v. Market Harborough Co-operative Ltd. could have applied to this case only if there was no other evidence, except the fact of the collision. If there was evidence, as there was in this case, then the trial judge was under a duty to decide that the accident happened in a particular way: see Bray v. Palmer [1953] 1 W.L.R. 1455, C.A.

In Roe v. Minister of Health [1954] 2 Q.B. 66, C.A. Denning L.J. said at p. 82: “If an injured person shows that one or other or both of two persons injured him, but cannot say which of them it was, then he is not defeated altogether. He can call on each of them for an explanation.” The case for the plaintiff is summarised in the following passage of Mensa Boison J.’s judgment:

“At a place between Nkawkaw and Awendadze village on the Nkawkaw-Kumasi road, when vehicle No. AG 5744 was on the ascent and nearing the crest of a hill, he noticed Bedford cargo lorry No. AG 8721 a 10 tonner, descending the hill in the opposite direction. From his position in the bus the plaintiff had a clear view of the road. He saw the truck No. AG 8721 occupy almost all the road and as it was heading straight at them, the bus in which he was travelling stopped at its proper side of the road on the nearside. The next thing that happened was the truck No. AG 8721 collided into their bus, which was thrown into a ditch. The plaintiff appeared to have passed out after the collision. When he gained consciousness he found himself at Atibie Hospital near Mpraeso.”

The plaintiff called no other witness on the issue of negligence, but it seems to me that he clearly made out a prima facie case of negligence against the first defendant-company alone, and the onus was, therefore, thrown on them to exculpate themselves. And instead of dismissing the plaintiff’s claim against the second defendant and calling upon the first defendant alone to defend the action, the learned trial judge unfortunately permitted evidence to be led on behalf of the second defendant company.

[p.13] of [1973] 1 GLR 8

The case for the first defendant-company was that on the day in question they were the owners of vehicle No. AG 8721, which was being driven by one Amadu Mahama Atta, an employee of the defendant-company, from Kumasi to Accra. Some few miles from Nkawkaw their driver saw coming in the opposite direction vehicle No. AG 5744 being driven zigzaggedly on the road. The driver said he stopped, but the second defendant’s vehicle ran into his side of the road and struck the off-side door of vehicle No. AG 8721. He continued his evidence as follows:

“After the accident I collected the driver of this vehicle with other passengers on his vehicle to the police station. At the police station the driver of the accident vehicle said the accident occurred because he burst his front tyre. Before the oncoming vehicle hit my off-side door I had stopped. I stopped on the near side of the road … I deny that I drove my lorry negligently on that day. I deny that I went to the off-side of the road, where I ran into the other vehicle then stationary. It is not correct the other vehicle had stopped. I had rather stopped. The road was a straight stretch from the place of impact to about a distance of three quarters of a mile.”

The driver of the first defendant further said that both at the scene of the accident and at the police station the driver of the second defendant admitted that he had a burst-tyre, which caused his vehicle to go off its course.

The second witness for the first defendant was a general police constable of the Nkawkaw Police Station. This witness produced the station diary at the material time, but, contrary to what the first defendant’s driver, Amadu Mahama Atta, had said in his evidence, there was no record of any admission by the driver of the second defendant that he had a tyre-burst. On this aspect of the case the learned trial judge said:

“It follows that the evidence of the first defendant that both at the spot and at the police station the driver of the bus confessed to a burst tyre could not be true. The cause of the accident therefore must be sought elsewhere and not as given by the first defendant. The cause I think is revealed in the report made to the police by the first defendant. That was on 13 August 1964. An entry in the station diary made at 2.25 p.m. reads: ‘One Amadu M. Atta of House No. D.853/3, Cow Lane, Accra, holder of driving licence No. 2216 issued at Accra … in charge of Benz truck No. AG 8721 owned by Tarzan Transport Accra, came in and reported that today at about 1.50 p.m. he was travelling from Kumasi towards Accra direction and on reaching Kwaku Dwira junction there was another vehicle coming from the opposite direction. That before he could give him chance to pass by, the other driver in charge of the other vehicle drove carelessly and hit the off-side mudguard, and as a result all the vehicles landed into a ditch. That

[p.14] of [1973] 1 GLR 8 out of three persons in his vehicle only one was slightly injured and as such wants police assistance.’

From this report I reject the first defendant’s account of attributing the cause of collision to the burst tyre of AG 5744, and his assertion that his vehicle was stationary on its proper side.”

The learned trial judge then made this positive finding:

“What I find is the two vehicles were in motion but the first defendant had gone into the path of the other vehicle and before the first defendant could revert to his proper side of the road he ran into the front part of AG 5744 and hurled the second defendant’s bus into the left ditch facing Kumasi.”

The learned trial judge continued his judgment as follows:

“The first defendant’s truck by his own evidence was a 10 tonner and at the time loaded with a cargo of 158 backs of millet. Had it been struck by the bus in its own lane of the road the probability would be for it to have stayed on the road. By going into his off-side ditch as it did, makes it most probable that it had gone into the other’s path; and unable to control his lorry bore down the smaller vehicle into the ditch.”

The first witness to give evidence for the second defendant was Kwabena Badu, the driver of vehicle No. AG 5744. The learned trial judge was not impressed by this witness, and he rejected his account of the course of events leading to the accident. The second defendant himself did not witness the accident but he impressed the learned trial judge with the only vital evidence he gave. That evidence is as follows:

“I went to the scene of the accident the following day. I was not in town (Nkawkaw) on the very day. My vehicle was a complete wreck so I did not bother to examine it, and I cannot say whether the front off tyre was flat. From Nkawkaw as you face Kumasi direction both vehicles (i.e. AG 5744 and the Tarzan) were in the left ditch (i.e. near side in Nkawkaw-Kumasi direction).”

Finally, the learned trial judge considered the evidence of the plaintiff that vehicle No. AG 5744 was motionless when it was struck by the other vehicle. On this aspect of the case, the learned trial judge said: “I reject the plaintiff’s evidence that just before the collision bus No. AG 5744 stopped. But I am satisfied that bus No. AG 5744 was on its proper side of the road when the first defendant crashed into it.”

Having rejected the evidence by both defendants that their two vehicles were stationary at the time of the collision, the only reasonable inference to draw, as indeed the learned trial judge did draw from the evidence, is that both vehicles must have been in motion at the time of the collision. It is, however, said that this conclusion by the learned trial judge was pure conjecture, because there was no positive evidence

[p.15] of [1973] 1 GLR 8 that the two vehicles were in fact in motion. With the greatest respect, I do not think so. The cases draw a distinction between pure conjecture and reasonable inference, and I can do no better than quote passages from two judgments in which this distinction has been explained. In Jones v. Great Western Railway Co. (1930) 144 L.T. 194, H.L. Lord Buckmaster said at p. 197:

“There are two areas separated by an indefinite line, in either one of which such a case as the present may be found; one is the region of pure conjecture, and the other that of reasonable inference … The question here is to which territory this case should be assigned. It is a mistake to think that because an event is unseen (as was X’s death here) its cause cannot be reasonably inferred.”

Lord Macmillan said in the same case at p. 202:

“The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference.

The cogency of a legal inference of causation may vary in degree between practical certainty and reasonable probability.

In Caswell v. Powell Duffryn Associated Collieries, Ltd. [1940] A.C.152, H.L. Lord Wright said at pp. 169-170:

“Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”

In this case, what are the facts from which the inference could be drawn that the two vehicles were in motion at the time of the accident? In the first place, the plaintiff did not allege in his statement of claim that vehicle No. AG 5744 was stationary when the accident occurred. There was also the evidence of the first defendants’ driver that vehicle No. AG 5744 was in fact in motion when it had a tyre-burst. The story of the tyre-burst was, however, disbelieved by the learned trial judge. The two vehicles were found lying after the accident clearly shows that at least vehicle No. AG 8721 was in motion. Moreover, the recording in the station diary was not objected to by parties, and the facts stated therein accord with the plaintiff’s averment in his statement of claim that the two vehicles must have been in motion. It

[p.16] of [1973] 1 GLR 8 is not unlikely in this country that after a motor accident the drivers of the two vehicles involved should each endeavour to shift the blame on the other. Therefore, if the story of the two vehicles being stationary is rejected, the balance of the probabilities would be that the two vehicles were in motion. Speaking of the degree of cogency which evidence must reach in order to discharge the legal burden on a party in a civil case, Denning J. (as he then was) said in Miller v. Ministry of Pensions [1947] 2 All E.R. 372 at p. 374:

“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but if the probabilities are equal, it is not.”

In this case the fact that there was a collision between the two vehicles is not in dispute, and if the evidence that the two vehicles were stationary is rejected, then it seems to me that it is more probable than not that the accident occurred when the two vehicles were in motion. Moreover, there was positive evidence that vehicles No. AG 8721, a 10 tonner, was found lying together with vehicle No. AG 5744 in a ditch on the off-side of the former. From this evidence, the learned trial judge drew the inference that vehicle No. AG 8721 must have gone into the path of the smaller vehicle and forced it into the ditch. I cannot see how the presence of vehicle No. AG 8721 in the off-side ditch can be explained on any other hypothesis than that it went off its proper course. In fact no reasonable explanation was offered by the first defendant. In my view, the learned trial judge drew the proper inference from the facts, and I cannot see any justification for this court interfering with his decision which fixed responsibility for the accident solely on the first defendants.

For the above reasons, I would dismiss the appeal.

JUDGMENT OF LASSEY J.A.

I agree.

JUDGMENT OF ARCHER J.A.

I also agree.

DECISION

Appeal dismissed.

S.E.K.