AGOGRO vs. AGO AND ANOTHER [1973] 1 GLR 45

CASES REFERRED TO

(1) Cribb v. Freyberger [1919] W.N. 22; 146 L.T.J. 214, C.A.

(2) Colvilles v. Devine [1969] 1 W.L.R. 475; 113 S.J. 287; [1969] 2 All E.R. 53; 6 K.I.R. 333, H.L.

(3) Scott v. London and St. Katherine Docks Co. (1865) 3 H. &. C. 596; 5 New Rep. 420; 34 L.J.Ex.

220; 13 L.T. 148; 11 Jur.N.S. 204; 13 W.R. 410; [1861-73] All E.Rep. 246.

(4) Cudney v. Cleinents Motor Sales Ltd. [1969] 5 D.L.R. (3 ed.) 3.

(5) Dagomba v. Dagomba, Court of Appeal, 2 March 1970, unreported.

(6) Yirenkyi v. Tarzan International Transport [1962] 1 G.L.R. 75.

(7) Nelson v. Klutse, Court of Appeal (full bench), 8 September 1969,unreported; digested in (1969)

C.C. 142.

(8) Nelson v. Kuttse, Supreme Court, 28 June 1965, unreported; digested in (1965) C.C. 155. (9) Ludgate v. Lovett [1969] 1 W.L.R. 1016; 113 S.J. 369; [1969] All E.R. 1275, C.A. (10) Decker v. Attah, Court of Appeal, 22 December 1969, unreported; digested in (1969) C.C. 109. (11) Grunshie v. Yeboah, Court of Appeal, 1 May 1967, unreported; digested in (1967) C.C. 96. (12) Fynhout Production Ltd. v. Kwayie [1971] 1 G.L.R. 475, C.A.

(13) Hollington v. Hewtliorit (F.) & Co., Ltd. [1943] K.B. 587; [1943] 2 All E.R. 35; 112 L.J.K.B. 463;

169 L.T. 21; 59 T.L.R. 321;87 S.J. 247, C.A.

(14) Stupple v. Royal Insurance Co., Ltd. [1971] 1 Q.B. 50; [1970] 3 W.L.R. 217; 114 S.J. 551; [1970] 3 All E.R. 230, C.A.

(15) Kariola v. Mahama (1957) 3 W.A.L.R. 49.

(16) Birch v. Thomas [1972] 1 W.L.R. 294; [1972] 1 All E.R. 905, C.A.

(17) Dadey v. Attorney-General [1971] 1 G.L.R. 228, C.A.

(18) McKean v. Raynor Brothers Ltd. (Nottingham) [1942] 2 All E.R.650: 167 L.T. 369; 86 S.J. 376. [p.48] of [1973] 1 GLR 45 (19) Twine v. Bean’s Express Ltd. [1946] 1 All E.R. 202; 174 L.T. 239;62 T.L.R. 155; 90 S.J. 128. (20) Conway v. Wimpey (George) & Co., Ltd. (No. 2) [1952] 2 K.B. 266; [1951] 1 T.L.R. 587; 95 S.J.

156; [1951] 1 All E.R. 363, C.A.

(21) Miller v. Liverpool Co-operative Society Ltd. [1940] 4 All E.R.367; affirmed [1941] 1 All E.R.

379, C.A.

(22) Hilton v. Thomas Burton (Rhodes) [1961] 1 W.L.R. 705; 105 S.J. 322; [1961] 1 All E.R. 74. (23) Rambarran v. Gurrucharran [1970] 1 W.L.R. 556; 114 S. J.274; [1970] 1 All E.R. 749, P.C. (24) Ormrod v. Crossville Motor Services (Murphie Third Party) [1953] 1 W.L.R. 1120; 97 S.J. 570;

[1953] 2 All E.R. 753, C.A.

(25) Rawlings v. Willbye (1954) C.A. 30 C. 91, unreported.

(26) Packer v. Sekondi-Takoradi Municipal Council [1960] G.L.R. 259,S.C.

(27) Mensah v. Dabanka [1962] 1 G.L.R. 178, S.C.

(28) Bonham Carter v. Hyde Park Hotel Ltd. [1948] W.N. 89; 64 T.L.R. 177; 92 S.J. 154. (29) Kruwah v. Kalmoni [1961] 1 G.L.R. 424.

NATURE OF PROCEEDINGS

ACTION for damages for injury suffered by the plaintiff as a result of the negligent driving of the first defendant, a servant of the second defendant bank.

COUNSEL

A. A. Ackuaku for the plaintiff.

A. Lamptey for P. Swaniker for the second defendants.

No appearance by the first defendant.

JUDGMENT OF FRANCOIS J.

The plaintiff, a 22-year-old seamstress trading at the sea port town of Tema sustained serious injuries when a vehicle in which she was travelling ended up in a culvert after an accident at Kpong on 30 May 1968. Her injuries included a number of cuts on her lips and face and fractures on her left thigh and shoulder. There were also injuries to her right wrist and her tongue, with a permanent impairment of speech and gait. But her greatest misfortune arising from the accident was the termination of her pregnancy. It appears that at the time of the accident she was seven to eight months gone. The medical certificate which reads like a medical dictionary has a whole catalogue of injuries the plaintiff sustained. The final medical opinion is as follows:

“She will be permanently incapacitated by the loss of movement at the left shoulder, loss of power in the small muscles of both the hands and spastic gait giving rise to considerable difficulty in moving around. In addition, she must have gone through a considerable physical and mental agony from loss of a baby which was almost full term which might carry a repercussion in her future well being.

[p.49] of [1973] 1 GLR 45

I assess her permanent disability at:

Cord dysfunction .. .. .. .. 45% (Forty-five per cent)

Shift left shoulder .. .. .. .. 8% (eight)

Miscarriage .. .. .. .. .. 15% (fifteen)

Total .. .. .. .. .. .. 68% (sixty-eight).”

This suit stems from the aforesaid injuries the plaintiff sustained and she consequently claims from the first defendant as driver of the vehicle and the second defendants as the owners of the said vehicle and masters of the first defendant, damages in compensation.

The first defendant did not contest the suit though served with the writ and statement of claim on 25 March 1969. Consequently on 20 March 1972 interlocutory judgment was entered against him. The second defendants however resisted liability strenuously. Though they admit the first defendant was in their employment they claim he committed a prohibited act by taking passengers in his vehicle and deviated from the course of his employment literally and figuratively. They accordingly repudiate liability.

1. Issue of negligence

The plaintiff pleaded in paragraphs (4) and (6) (d) of his statement of claim the following:

“(4) On or about the 30th day of May 1968, the first defendant whilst in charge of the said vehicle in the course of his employment with the second defendants drove so negligently and without proper duty of care that on the Kpong-Tema motor road he lost control of the steer and drove the vehicle into a ditch and consequently caused grievous personal injuries to the plaintiff who was then riding in the said vehicle . . .

(6) (d) Particulars of negligence So far as may be necessary or practicable the plaintiff will rely on the doctrine of res ipsa loquitur.”

The second defendants in their brief defence denied negligence urging also that the first defendant acted outside the scope of his employment. Having regard to exhibits 1 and 2 which blamed the first defendant for carelessness, the stand of the second defendants seems difficult to appreciate. But I shall consider this aspect of the case again later.

The plaintiff led no evidence of negligence except the factum of the accident and the resultant extensive injuries she sustained. But she conveyed a picture of the tremendous haste the first defendant seemed to be in; for instance, snatching her load from her head and almost bundling her into the vehicle as a prized passenger. I cannot be persuaded, and there is no evidence to prop it, that this desire for haste evanesced, nor can it be dispelled for the further reason that soon after, an accident occurred. The plaintiff however seeks to establish negligence in two modes. First by legal and necessary implication from the effect

[p.50] of [1973] 1 GLR 45 of the interlocutory judgment obtained against the first defendant on his default to plead; secondly by invoking the doctrine of res ipsa Loquitur.

Where judgment is entered by default against a defendant charged with negligence, who fails to serve a defence, the plaintiff need not prove the said negligence as all the allegations in the statement of claim are deemed to be admitted. See Cribb v. Freyberger [1919] W.N. 22, C.A.

(2) Res ipsa loquitur

In examining the doctrine of res ipsa loquitur in relation to this case one must needs be reminded of Lord Upjohn’s statement in Colvilles v. Devine [1969] 2 All E.R. 53, H.L. that the true ambit of the doctrine still requires further elucidation by the House of Lords. In Halsbury’s Laws of England (3rd ed.), Vol. 28, para. 79 at p. 78 is the following passage:

“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.”

The doctrine had its humble origins in a speech of Earle C.J. in Scott v. London and St. Katherine Docks Co. [1861-73] All E. Rep. 246 at p. 248 where the noble Lord said:

“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 of the machinery use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.”

Though of lowly birth, the doctrine has grown in stature and now assumes tremendous significance in the law relating to negligence in torts. Unfortunately its growth has not been unaccompanied by complications, especially in its application. The debate has sometimes been whether it applies without any evidence or whether there must be some preliminary facts to usher in the doctrine. The Canadian view which is attractive and logical requires at least some evidence, some material, on which the doctrine can hinge to be supplied by the plaintiff. Thus in Cudney v. Clements Motor Sales Ltd. [1969] 5 D.L.R. (3 ed.) 3, it was held that the maxim of res ipsa loquitur could only apply if the plaintiff had supplied the basis of its application. The established facts must cogently point to negligence before the burden of proof would shift to the defendant. This is not quite the English view which our courts have adopted. Here the res speaks for itself. See the opinion of [p.51] of [1973] 1 GLR 45

Apaloo J.S.C. in Dagomba v. Dagomba, Court of Appeal, 2 March 1970, unreported, where the learned judge said:

“In their statement of claim, they gave particulars of negligence but pleaded in the alternative that the occurrence of the accident is itself evidence of negligence and relied on the doctrine of res ispa loquitur. At the trial, they did no more than testify as to the occurrence of the accident and thereafter gave great details of their various injuries. The respondents for their part, gave no evidence or offered any explanation of how the collision occurred but denied negligence in their pleadings.

The learned trial judge (Annan J.) dismissed the action because he thought the plaintiffs failed to discharge the onus of proving negligence. But before reaching this conclusion, the learned judge considered whether the fact of the collision was itself prima facie evidence of negligence. After examining some well-known English decisions, he gave the question a negative answer. The appellants take issue with him on that and argue that he should have returned an affirmative rather than a negative answer. In my opinion, the appellants are right.”

It must be pointed out that the legal issue being virtually identical I am bound by Apaloo J.S.C.’s decision above cited. Thus also Ollennu J. (as he then was) in Yirenkyi v. Tarzan International Transport [1962] 1 G.L.R. 75 at pp. 76-77 held:

“Vehicles do not normally run off the road into buildings; they would only do so in consequence of negligence on the part of the driver, or as a result of inevitable accident. In this case the cause of the accident is peculiarly within the knowledge of one person and one person only, namely, the driver of the defendants.

That being so the principle of res ipsa loquitur applies and the presumption is that the accident was caused by negligence of the defendants’ driver. The onus is upon the defendants to rebut that presumption by proving facts which are inconsistent with their liability.”

Whether the onus on the defendants is discharged by merely offering a plausible explanation or they must go to the extent of disproving any negligence is still in some doubt. The English decisions require the defendant to disprove negligence. The full bench of the Court of Appeal in Nelson v. Klutse, Court of Appeal, 8 September 1969, unreported digested in (1969) C.C. 142 declined to give a final opinion.

The case of Nelson v. Klutse (supra) exemplifies the difficulty the maxim of res ipsa loquitur provokes. When the suit originally came before the appeal court (Supreme Court, 28 June 1965, unreported; disgested in (1965) C.C. 155) it was held that the maxim did not apply. A diametrically opposed view was the result of a review of the Supreme Court’s decision (Court of Appeal, 8 September 1969, unreported; digested in (1969) C.C. 142). I think this decision of the full bench of

[p.52] of [1973] 1 GLR 45 five judges is for the moment the last word on this aspect of res ipsa loquitur. I may perhaps therefore be forgiven for quoting excerpts from the unanimous judgment delivered by Amissah J.A.:

“According to our understanding of the doctrine it applies whenever it can be said at a given point of a trial that the res or circumstances proved by the plaintiff are of themselves sufficient evidence from which negligence may reasonably be inferred. And the first decisive point of the trial is the close of the plaintiff’s case. For if the doctrine can then be invoked by him, he is enabled to avoid a non-suit or his action being dismissed on the ground that he had not discharged the onus which lay on him.”

In a further passage the learned judge said:

“But there are cases where the proof of the act itself, let us say an accident, is sufficient to raise the inference of negligence because acts or omissions of that nature do not in the ordinary course of things occur without the negligence of the person responsible for its happening. There are the cases where it is said that the res speaks for itself. Where the proof is given by the plaintiff of such an accident by itself and no more, the court is entitled to infer negligence unless there is an explanation from the defendant as to how it occurred which is consistent with the defendant not being negligent. Upon the explanation being given, the court is put in the position where it has all the facts before it and its conclusion as to negligence vel non would be drawn from an assessment of all the material before it.”

Amissah J.A. concluded:

“[T]he applicant by establishing the fact of the accident itself, had given sufficient evidence from which the respondent’s negligence could be inferred in the absence of any reasonable explanation.”

As far as the English decisions go, to rebut res ipsa loquitur when the doctrine applies, the defendants must give an explanation of the accident which is not only reasonable but is also inconsistent with negligence on their part. See the speech of Lord Guest in Colvilles Ltd. v. Devine [1969] 2 All E.R. 53 at p. 57, H.L. aforementioned. That the onus to explain away an accident rests squarely on the defendant once the res is shown is also illustrated in the case of Ludgate v. Lovett [1969] 2 All E.R. 1275, C.A. Here a youth who had hired a vintage van which was in good condition, was involved in an accident which left the car straddled on a culvert. The explanation that the accident was caused by a burst tyre was contradicted by expert evidence. It was held that the failure to explain adequately the obvious negligence in a seemingly well-maintained van ending up on a culvert when the defendant was in control, fixed negligence on him. Since a momentary

[p.53] of [1973] 1 GLR 45 lapse, a second’s inattentiveness on a highway could cause an accident, it was incumbent on the defendant to give an acceptable explanation.

It must be emphasized that the fact that there was an accident culminating in the plaintiff sustaining injuries in the instant case was not denied by the defendants. That fact is the res and the issue now is whether the defendants gave any explanation of the accident. The first defendant declined to contest the suit and though he sat in court was not called by the second defendants to give evidence to explain the accident. The res consequently has not been explained, nor an attempt made to “rebut the prima facie case of negligence which the facts raise”: see per Apaloo J.A. in Decker v. Attah, Court of Appeal, 22 December 1969, unreported; digested in (1969) C.C. 109.

3. Negligence against the second defendants

In so far as the second defendants’ liability can only be vicarious and is fixed if the first defendant is proved not only to be their driver, driving negligently in the course of his employment, but also not outside the scope of his authority, it is my view that the second defendants would be vicariously held negligent if they do not discharge the onus to disprove fault once the doctrine of res ispa loquitur is established. This view of the law finds support in a passage from the judgment of Apaloo J.A. (as he then was) in Grunshie v. Yeboah, Court of Appeal, 1 May 1967, unreported; digested in (1967) C.C. 96. There, the learned judge in assessing the legal effect of a finding of negligence against a driver, said:

“It is admitted that the second respondent was the owner and employer of the first respondent and at the time of the accident, the first respondent was driving the Bedford lorry in the ordinary course of his employment.

It follows that both respondents are liable to the appellant for her injuries.”

So also in Fynhout Production Ltd. v. Kwayie [1971] 1 G.L.R. 475 at p. 477, C.A. where Anin J.A. said:

“The first defendant pleaded guilty at the criminal court to the offence of careless driving and negligently causing harm and was duly convicted and sentenced to fines totalling £G65. He did not contest this action, though served with process, and judgment was accordingly entered against him. In the result, the negligence of the driver was not disputed by the remaining defendants.”

It must be said in passing that the plaintiff herein makes no capital of the conviction for careless and negligent driving of the first defendant in the criminal court. I think Hollington v. Hewthorn [1943] 2 All E.R. 35, C.A. precludes the use of a conviction in subsequent civil proceedings and the English Civil Evidence Act, 1968, c. 64, which now allows such evidence to be admitted has no relevance in Ghana. The law in Ghana is analogous to the position in England before 1968. Buckley L.J.

[p.54] of [1973] 1 GLR 45 in Stupple v. Royal Insurance Co. Ltd. [1970] 3 All E.R. 230, C.A. described that position in the following words:

“If before 1968, A. sued B. for an act of B.’s of which B. had earlier been convicted in criminal proceedings, evidence of B.’s conviction was inadmissible in A.’s action. It merely demonstrated that another court had, on the material and arguments before it, concluded that B. was guilty of the act with which he was charged in the criminal proceedings. It did not prove any of the matters proved in the criminal proceedings, nor anything which A. would need to prove to make good his civil claim. Proof of B.’s conviction was accordingly irrelevant to A.’s action; and so was inadmissible.”

See also Kariola v. Mahama (1957) 3 W.A.L.R. 49. But the excerpt quoted above from the Kwayie case justifies the assumption that the negligence of a driver, whether by operation of law, viz. on the doctrine of res ipsa loquitur, or by his submission to judgment throws on the employer the burden of denying the negligence if he can.

4. Prohibitions

It was the second defendants’ case that their drivers were under strict instructions not to pick up passengers. Their representative put it thus:

“In 1969 when I joined the bank the manager impressed on me that we were not allowed to pick passengers.

This was to me as a project officer of the bank at the time. The drivers have been made aware of this. If outsiders have not been told they would not know.”

Earlier he had said:

“Drivers are supposed to drive the bank’s vehicles to take project officers and bank personnel on trek. They can also be sent out on bank duties to deliver letters, etc. The drivers are not supposed to pick on the vehicle any passengers but only people associated with the bank, for instance, on feasibility studies, a farmer may be conveyed on the vehicle.”

It should be observed that no written instructions were produced nor proof attempted of the same. The first defendant who sat in the court throughout as already mentioned was not even called to confirm this prohibition. To escape liability on the ground that an express prohibition had been flouted, the second defendants should have established it. In Ghana it is a matter of everyday occurrence, of which judicial notice must be taken, of vehicles displaying printed prohibitions in the body as well as their external parts. This is a warning to the whole world that passengers travel in the said vehicles at their own risk. The second defendants’ representative let the cat out of the bag when he said, “After the accident the position as to the instructions has not been the same. Circulars are now issued to the drivers. I can’t say whether the circulars preceded the accident or not.”

[p.55] of [1973] 1 GLR 45

A recent case on the question of notice regarding risk is the case of Birch v. Thomas [1972] 1 All E.R. 905, C.A. In that case a passenger in a car was injured as a result of an accident caused by the negligence of an owner-driver. In the car was a notice repudiating any liability and intimating that passengers travelled at their own risk. The English Court of Appeal confirmed the decision of the court of first instance holding that the plaintiff had express or effective constructive knowledge of the facts and the notice, consequently the defendant could not be held liable for his negligence.

The facts in the instant case are clearly not on the same footing. As no written prohibition was tendered no reliance can even be placed on the local authority of Dadey v. Attorney-General [1971] 1 G.L.R. 228, C.A. I consequently accept the legal position restated by Hilbery J. in McKean v. Raynor Brothers (Nottingham) [1942] 2 All E.R. 650 at p.652 where he said:

“The law casts upon the master a liability for the act of the servant in the course of his employment; and the law is not so futile as to allow a master, by giving secret instructions to his servant, to discharge himself from liability.”

I do not think the cases of Twine v. Bean’s Express Ltd. [1946] 1 All E.R. 202 and Conway v. Wimpey (George) & Co. Ltd. (No. 2) [1952] 2 K.B. 266, C.A. apply in this case. In the aforesaid cases the plaintiff was held to be an unauthorised invitee and therefore could not succeed in a claim for damages arising from negligence. These cases proceeded on two principles. First, that in giving a lift, the servant had departed from the course of his employment and, secondly that the passenger must be deemed a trespasser. I am not concerned here with the criticism that the two decisions have no legal justification. They simply do not apply here, first because there is no acceptable proof as aforesaid of a prohibition on the driver to give lifts. In the passage from the evidence of the second defendants’ representative quoted above, it appears lifts could be given to certain classes of persons. It is good law that where a servant is permitted to give any lift the master will be liable. See Miller v. Liverpool Co-operative Society Ltd. [1940] 4 All E.R. 367 affirmed in [1941] 1 All E.R. 379. For that very reason the passenger cannot be a trespasser.

On the facts I have come to the conclusion that no prohibition was issued to the first defendant against conveying passengers in his vehicle.

(5) Course of employment and scope of authority

The test whether a servant is acting in the course of his employment and within the scope of his authority has been formulated in a well-known passage from Salmond on the Law of Torts. It is whether the act of the servant is so connected with his duly authorised acts that they may be considered as modes, although improper modes, of doing them in contradistinction to independent unrelated conduct. The simpler

[p.56] of [1973] 1 GLR 45 test of Diplock L.J. in Hilton v. Thomas Burton (Rhodes) [1961] 1 W.L.R. 705 is whether the servant was doing something he was employed to do.

Relating the authorities to the instant case it will be observed that the defendants failed to show how the first defendant had side-stepped the authority conferred on him or deviated materially from the course of his employment. Indeed the first defendant picked up the plaintiff at Tema; but a bare assertion that the driver should have proceeded from Koforidua to Hohoe without more, is hardly legal proof sufficient to induce a conviction in me that the first defendant did not comply with instructions; for that bare statement could also be made to escape liability.

On this aspect of the matter the following answers to questions put to second defendants’ representative are revealing:

“Q. At the time of the accident was the first defendant driver returning from Accra on the bank’s errand ?

A. Yes.

Q. This was within the scope of his employment as a driver” ?

A. Yes. He was sent to Koforidua and he should have returned to Hohoe from there. But he proceeded to Accra from Koforidua and the accident occurred at Kpong on his return.

Q. There was no query as to his coming from Accra ?

A. I agree that did not raise any query.”

There is nothing to show on the evidence that the first defendant deviated from his duty in going to Accra. Whether he was on an authorised errand to Accra cannot be ruled out especially as the defendants’ head office is in Accra, of which judicial notice must be taken. No instructions and contrary defiant conduct of the first defendant were adduced in evidence. The fact that the first defendant was not even queried in this regard leads me to the inevitable conclusion, as indeed the passage quoted above suggests, that the first defendant was acting within the scope of his authority and about his master’s (the second defendants’) business when the accident occurred.

A driver, driving in the course of his employment, ostensibly on his master’s mission, creates notionally at any rate, the doctrine or concept of agency; thus his default as it were comes back to the employer unless rebutted. See Rambarran v. Guruucharran [1970] 2 All E.R. 817, P.C. where the leading cases are also reviewed. For essentially the employer cannot repudiate his instructions that the vehicle should be put on the road in the first instance nor can he deny an interest in the driver’s journey. This was put in language of great clarity by Denning L.J. in Ormrod v. Crossville Motor Services Ltd. [1953] 2 All E.R. 753 at pp. 754-755, C.A. where he said:

“It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if that driver is his

[p.57] of [1973] 1 GLR 45 servant acting in the course of his employment. That is not correct. The owner is also liable if the driver is his agent, that is to say, if the driver is, with the owner’s consent, driving the car on the owner’s business or for the owner’s purposes . . . The law puts an especial responsibility on the owner of a vehicle who allows it to go on the road in charge of someone else, no matter whether it is his servant, his friend, or anyone else. If it is being used wholly or partly on the owner’s business or for the owner’s purposes, the owner is liable for any negligence on the part of the driver.”

Even if a particular trip is for the servant’s own benefit but the master still retains possession and control, that is, in a case where no bailment arises, the master will still be liable, see Rawlings v. Willbye (1954) C.A. 30, c. 91, unreported. At pp. 92-93 the test is formulated that liability depends upon whether the journey as a whole is being undertaken in the interest and for the purpose of the master.

Thus it was that Granville Sharp J.S.C. in Packer v. Sekondi-Takoradi Municipal Council [1960] G.L.R. 259 at p. 262, S.C. held that:

“A servant is presumed to act in the course of his employment unless it can be shown that he acted in his own interest in his use of his master’s property, surreptitiously, without the knowledge of his master and independently of orders from any superior whose orders he was bound to obey.”

To the same effect is the case of Mensah v. Dabanka [1962] 1 G.L.R. 178, S.C.

In my opinion there has been nothing urged in evidence to rebut the clear fact that at all times relevant to this action the first defendant drove within the scope of his authority and within the course of his employment. His acts and default clearly fix liability on the second defendants, and I so hold.

Now to damages. The plaintiff made a hash at proving special damages. In Bonham Carter v. Hyde Park Hotel Ltd. (1948) 64 T.L.R. 117 at p. 178, Lord Goddard C.J. warned:

“Plaintiffs must understand that if they bring actions for damages, it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the Court saying: ‘This is what I have lost; I ask you to give me these damages.’ They have to prove it.”

Nevertheless I shall attempt to quantify the damages:

First the loss of earnings. The plaintiff earned averagely ¢18.00 a month during the period of her pregnancy. For the two months she was actually incapacitated up to date hereof, i.e. for a period of four years six months (54 months), she is entitled to ¢18 X 54 = ¢972.00. This amount I award as also ¢99.00 for hospital and travelling expenses.

[p.58] of [1973] 1 GLR 45

The plaintiff’s entitlement to general damages regarding prospective loss of earnings, I compute as follows: The plaintiff’s average takings of ¢18 a month was during the period of her pregnancy only. She claimed ¢6 to ¢20 a day when she was not burdened with a child. I thought for a newly fledged seamstress whose own establishment had hardly been opened when she suffered this reverse of an accident her earnings were grossly exaggerated. I think one cedi a day can adequately take care of the lean or off season and the period of bounty, and would be a fairer figure. At 22 the plaintiff might continue to deck prospective clients with fineries for another 23 years or so before matrimonial chores compelled a relinquishment of her trade. With 23 years’ purchase consequently I reckon her prospective takings as 365 (less 52 Sundays) (313 days X 1 X 23) = 7,199. This I shall tax down for known contigencies like child birth which her youth would make a demanding and periodic preoccupation, and also for the imponderables of life; the eventual figure should be ¢3,000.

It should be pointed out that in Kruwah v. Kalmoni [1961] 1 G.L.R. 424, Ollennu J. awarded a seamstress whose right arm was virtually useless £G2,000 (¢4,000). I have considered ¢3,000 compensation in the instant case fair as I do not think the plaintiff’s chances of recovering the full use of her hands are completely remote. I must however emphasize that a seamstress like a pianist requires the dedicated use of her fingers. The plaintiff has been deprived of their utility and must be compensated for the loss; in all the circumstances I consider the amount awarded under this head a fair solatium. As to pain and suffering I will award ¢800.00. The plaintiff must have gone through sheer misery not to talk of the mental anguish she would have experienced at the loss of her child. It is obvious the plaintiff’s enjoyment of life has been reduced considerably by the impairment of her hands. The joy of practising what she had learnt as an apprentice for many years, the chance to create and design clothes, all seem lost. I would consequently award under this head the sum of ¢200.00. This has been considerably taxed down as in my view this head of damage finds an echo but only an echo, in the general damages awarded.

In the net result I shall award against the defendants jointly and severally in favour of the plaintiff the total sum of five thousand and seventy-one cedis (¢5,071.00).

There will be costs for the plaintiff assessed at ¢100.00.

DECISION

Judgment for the plaintiff.

S. O.