HASNEM ENTERPRISES LTD vs. ELECTRICITY CORPORATION OF GHANA [1997-1998] 2 GLR 1016

CASES REFERRED TO

(1) Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392.

(2) Anchor Products v Hedges (1966) 115 CLR 493.

(3) Blyth v Birmingham Waterworks Co (1856) 11 Ex 781.

(4) Lochgelly Iron & Coal v M’mullan [1934] AC 1.

(5) Scott v London & St Katherine Docks [1965] 3 HLC 596.

(6) Southport Corporation v Esso Petroleum Co Ltd [1953] 2 WLR 773.

(7) Bonham-Carter v Hyde Park Hotels Ltd 64 TLR 177.

APPEAL by the plaintiff from the majority decision of the Courtl of Appeal affirming the judgment of the High Court in an action by the plaintiff against the defendants for negligence wherein the plaintiff pleaded the doctrine of res ipsa loquitur in the alternative. The facts are sufficiently set out in the judgment of Bamford-A ddo JSC.

Nutifafa Kuenyehia for the plaintiff- appellant.

[p.1019] of [1997-1998] 2 GLR 1016

F K Korley (with him J Adu Amanlcvvkwa) for the defendant respondents.

Bamford-Addo JSC. This is an appeal by HFlasnem Enterprises Ltd, the plaintiff-respondent-appellants (hereinafter referred to as the plaintiffs). The defendant-respondent-respondents (hereinafter i referred to as the defendants), are a statutory corporate body. Both parties were and are still doing business in Cape Coast. The plaintiffs contracted with the defendant-corporation for the supply of electricity to their office for a fee. On 21 March 1981, the managing director of the plaintiff-company went to his office, and when he switched on the light, there was an explosion of the bulbs from which smoke emitted. This resulted in power failure in the said office and damage to certain electrical appliances there. The appliances, listed in schedule A, consisted of the following: one Westinghouse air conditioner; one Indisit frigidaire; two D & MC ceiling fans; two Sanyo electrical standing fans; one transistori radio and record player; twelve flourescent light complete fittings;, three 60W electric bulbs; and one 1 MB Copier HII Machine. A report was made to the defendant-corporation, and workmen wei re dispatched to the area. They found the fault to be a cut in the branch underground cable supplying electricity to the plaintiffs’ office. The main underground cable on the street was, however, intact.

The plaintiffs sued the defendants for negligence or in the alternative breach of contract, and claimed special and general damages. The particulars of negligence, eight in number, were listed as follows:

“(a) Failing to install fuses intended to ‘blow’ to interrupt service from the defendant -corporation’s terminal box;

(b) installing faulty fuses which failed to blow to interrupt service from the defendant-corporation’s terminal box;

(c) failing to maintain or properly so to maintain the fuses so as to permit them to ‘blow’ to interrupt service from the defendant-corporation’s terminal box;

(d) rating fuses higher than the current rating of the cablces they are supposed to protect;

(e) permitting the service cable to give way first;

(f) failing to maintain andi/or service properly the service cables eadiruz leading to the plaintiffs’ premises;

[p.1020] of [1997-1998] 2 GLR 1016

(g) failing to regulate or properly to regulate the ‘load’ on the service cable leading; and

(h) in the alternative, the plaintiffs will plead the doctrine of res ipsa loquitur.”

The defendants admitted that there was a contract for the supply of electricity to the plaintiffs’ office but denied negligence In their defence, they averred that the cause of the fault was due to the overloading with heavy power consuming devises of the single phase electrical supply by the plaintiffs without informing the defendant-corporation, and also that the underground cables were unserviceable. They therefore counterclaimed for negligence and sought perpetual injunction restraining the plaintiffs as consumers from further use of electricity until they have wired the premises for a three-phase supply. The defendants claimed an amount of ¢1 million being general damages for gross nuisance, breach of contract, disrupting electricity supply to other customers and weakening the system.

The plaintiffs sought to prove the negligence of the defendants as contained in the particulars of negligence referred to above and, in the alternative, sought to rely on the doctrine, res ipsa loquitur. At the end of an exhaustive analysis of the law and evidence adduced by the parties, the trial High Court judge found that the plaintiffs had not established a case of negligence against the defendants to warrant a judgment in their favour. He also dismissed the counterclaim of the defendants as unmeritorious. The plaintiffs thereupon appealed to the Court of Appeal, which court, by a majority of two to one, dismissed the appeal hence the present appeal by the plaintiffs to this court. The Court of Appeal supported the findings of the trial court that the plaintiffs had failed completely to adduce evidence to prove the alleged particulars of negligence filed by them and held that: “The appellants failed to adduce evidence to substantiate what they alleged in their pleadings or any default on the part of the respondents. No doubt, the action either in contract or negligence, must fail in the circumstances.”

The grounds of the present appeal are:

“(a) that the judgrnment is against the weight of evidence adduced at the trial; and (b) the court erred when it held that the plaintiffs had not piroved their case to warrant judgment in their favour”

[p.1021] of [1997-1998] 2 GLR 1016

Arguing ground (b), counsel for the plaintiffs submitted that the majority judgment of the Court of Appeal was brief and simply endorsed the view of the trial judge that the plaintiffs had failed to prove the particulars of negligence pleaded. Counsel also attacked the findings by the majority that res zipsa loquitur did not apply since the cause of the accident was known, no doubt because of the particulars of negligence averred by the plaintiffs. Counsel therefore submitted that the trial judge’s approach to the assessment of the evidence was wrong as his conclusion was not based on all the evidence available.

The trial judge did, in fact, consider the case as a whole in an exhaustive examination of the whole evidence before coming to the conclusion that he did, but whether his conclusion was correct is another matter and remains to be seen. On whether the plaintiffs did discharge the burden of proof of negligence which lay on them, the trial court said:

“With regard to the particulars of negligence specified in (a) through (g), the plaintiffs led no evidence. It appears it required expert evidence to establish these particulars; the only one which the defendants did not dispute was the allegation in (f) that they did not service or maintain the cables. The defendants denied the cables were serviceable or maintainable . . . Hence the plaintiffs could still prove that the defendants were in breach of duty to service or maintain the cables, despite the fact that there is no precedent. Here again there was no evidence. One wonders how an underground cable can be serviced or maintained .. . In short, the plaintiffs failed to lead evidence to prove any of the grounds of negligence alleged and pleaded. There is no liability unless there is the result of negligence.”

The trial judge went on regarding issue of res ipsa loquitur thus:

“They, the plaintiffs, pleaded facts which tended to show how and why the fault occurred. It is thus clear that the principle of res ipsa loquitur will not apply and I so hold. And even if that maxim applies, the defendants have satisfactorily explained that the cable is not maintainable and that it was successfully serving the area until this accident occurred through no fault of theirs. They, the defendants, did nothing which caused or even contnributed to cause the cable to bumrn.”

[p.1022] of [1997-1998] 2 GLR 1016

These findings of the trial court are what the majority of the Court of Appeal affirmed and which are challenged in this appeal.

Both of plaintiffs’ grounds of appeal concern the effect and weight of the evidence adduced in the trial of this case. Ground (b) is that: “The court erred when it held that the plaintiffs had not proved their case to warrant judgment in their favour.” Arguing this ground, the plaintiffs submitted that the trial judge had erred in his holding that the principle of res ipsa loquitur did not apply to this case for the reason that since the cause of accident was known to the plaintiffs as appearing in their filed particulars of negligence, the said doctrine did not apply. This finding was concurred in by the majority of the Court of Appeal. It is to be noted, however, that the trial judge, despite this finding, never theless correctly applied the principle to the available evidence when he considered the evidence and explanation given by the defendants regarding the cause of the accident or fault. He discussed the legal principles involved in the application of the doctrine of res ipsa loquitur and concluded thus:

“In this case, the plaintiffs said the accident was caused by a fault on the cable. They pleaded facts which tended to show how and why the fault occurred. It is thus clear that the principle of res ipsa loquitur will not apply, and I so hold. And even if the maxim applies, the defendants have satisfactorily explained that the cable is not maintainable and that it was successfully serving the area until this accident occurred through no fault of theirs. They did nothing which caused or even contributed to cause the cable to burnm.”

(The emphasis is mine.)

The judge, after exhaustive examination of the available evidence, finally came to the conclusion that on a balance of probabilities, negligence has not been established against the defendants and dismissed the case. Whether he rightly evaluated the effect of the whole evidence, having regard to the principles involved in the doctrine of res ipsa loquitur, is what I intend to analyse hereafter.

The doctrine of res ipsa loquitur is not a rule of law; it merely describes the state of the evidence from which one may draw an inference of negligence to enable justice to be done where the cause remains unknown. The essence of the maxim was discussed

[p.1023] of [1997-1998] 2 GLR 1016 in the case of Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392, as stated in the headnote, holding (1) thus:

“The application of the doctrine of res ipsa loquitur, which was no more than a rule of evidence affecting onus of proof of which the essence was that an event which, in the ordinary cause of things, was more likely than not to have been caused by negligence was by itself evidence of negligence, depended on the absence of explanation of an accident, but, although it was the duty of the respondents to give an adequate explanation, if the facts were sufficiently known the question ceased to be one where the facts spoke for themselves, and the solution must be found by determining whether or not on the established facts, negligence was to be inferred.”

The doctrine of res ipsa loquitur arises where the cause of an accident is not known or cannot be proved directly by evidence from which the inference of negligence can be made. Where the doctrine applies, it is not necessary for the plaintiffs to give direct evidence of negligence. They may prove their case partly by indirect or ‘circumstantial evidence; in which case the plaintiffs must prove facts from which an inference of negligence on the part of the defendants, and the defendants only, may be reasonably made.

The inference of negligence, however, may be made where the accident is consistent with negligence on the part of the defendants than with any other cause since the accident is then said to ‘speak for itself.” In such a case, the court may fmind negligence against the defendants where the facts are consistent with such findings unless the defendants give a reasonable explanation to show how the accident occurred without negligence on their part, because such a finding is not automatic. According to Charlesworth and Percy on Negligence (8th ed), p 422, para 5-104, the maxim comes into operation:

“(1) on proof of the happening of an unexplained occurrence;

(2) when the occurrence is one, which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff; and

[p.1024] of [1997-1998] 2 GLR 1016

(3) the circumstances point to the negligence in question being that oft/ic the defendant rather than that of any other person.”

(The emphasis is mine.) Where all these three conditions are present, it is then open to thbe defendants to give a reasonable explanation to show that the cause of the accident was due to some other cause not occasioned by them so as to prevent the inference of negligence being made against them, the reason being that where the said explanation raises doubt about the defendants’ negligence, the facts may speak less loudly and less convincingly than before and may exonerate them from the charge of negligence. In any case, where the cause of the accident is sufficiently known the doctrine does not apply because then, the question ceases to be one where the facts speak for themselves, and the case would then have to be proved directly by the plaintiffs to establish facts from which negligence can be reasonably inferred.

In this case, having failed to establish by evidence the exact particulars of negligence averred by the plaintiffs as to the cause of the accident, they were also entitled to rely on the doctrine res ipsa loquitur in proof of their case because then, the cause of the accident remained unknown, and the doctrine then applies to enable the case to be fairly determined in the interest of justice. Thus, a plaintiff who tenders evidence directed at proving the defendants’ guilt of negligence can also rely on the doctrine of res ipsa loquitur: see the Australian case of Anchor Products v Hedges (1966) 115 CLR 493, where it was held that:

“A plaintiff who tenders evidence directed to proving the defendant guilty of a particular act of negligence is not there by precluded from relying upon the principle of res ipsa loquitur . . . Where the principle of res ipsa loquitur applies the onus of proof of negligence remains, nevertheless upon the plaintiff.”

Windeyer J in the said case also said:

“The cause of the action was negligence. The particulars of acts or omissions which were relied on as constituting the negligence alleged could, at the discretion of the trial judge, be expanded by amendment to meet matters that emerged in the course of the tnrial. The function of particulars in an action

[p.1025] of [1997-1998] 2 GLR 1016 for negligence is not to define the cause of action, which is negligence, but to show what acts or omissions will be put forward as constituting it. This has been stated more than once by this court. To say that an accident speaks for itself does not mean that if no avoidance is given for the defendant, the plaintiff is entitled in law to a verdict in his favour. The occurrence speaks of negligence, but how clearly and convincingly it speaks depends upon its circumstances. It is evidence from which an inference of negligence may be drawn: it does not mean that this inference must necessarily be drawn although in some cases it may be evidence so cogent and compelling that any other conclusion would be perverse as du Parque LJU pointed out in Easson v London and North Eastern Railway Co [1944] I KB 421 at p 425. But always the question whether the plaintiff has discharged the burden of proving his case depends upon the effect of the whole of the evidence given in the case including such inference as may be drawn from the happening of the accident, if its cause remains unexplained.”

Therefore, as seen from the above case, the submission of the plaintiffs on the issue of the rejection by both the trial judge and the Court of Appeal of the application of the doctrine of res ipsa loquitur to this case is well founded. Both courts erred in their finding on this particular issue when they found that since the cause of the accident was known, the said doctrine did not apply.

However, as I said earlier, the trial judge redeemed this error when, despite this error, he nevertheless went on to apply and consider the maxim as affecting the case before him. He said:

“It is thus clear that the principle of res ipsa loquitur will not apply, and I so hold. And even if that maxim applies, the defendants have satisfactorily explained that the cable is not maintainable and that it was successfully serving the area until this accident occurred through no fault of theirs. They (the defendants) did nothing which caused or even contributed to cause the cable to burn.”

But the question that remains is whether the doctrine was correctly applied in this case.

[p.1026] of [1997-1998] 2 GLR 1016

I now move on to ground (a) of the plaintiffs’ grounds of appeal, namely, that the majority judgment of the Court of Appeal was against the weight of evidence. In negligence, the burden of proof lies on the plaintiffs who must adduce sufficient evidence from which negligence against the defendants can be inferred. The tort of negligence involves a breach of duty on the part of a defendant who owes the plaintiff a duty of care and whose negligence has resulted in damage to the plaintiffs. Negligence is defined in the following cases. In Blyth v Birmingham Waterworks Co (1856) 11 Ex 781 Anderson B said:

“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.”

In modern times, the same definition was given by Lord Wright in Lochgelly Iron and Coal Co v M’mullan [1934] AC 1 at 25:

“In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission it properly connotes the complex concept of duty, breach, and damage thereby suffered by the person to whom the duty is owing,”

The damage suffered, however, must also depend on reasonable foreseeability, otherwise no compensation would be payable. Since the plaintiffs alleged negligence against the defendants, the burden of proof lies primarily on them to establish, on a balance of probabilities, whether negligence can be inferred on the facts in order to win their case. The plaintiffs relied, in the alternative, on the doctrine of res ipsa loquitur.

The defendants denied negligence and counter-alleged that it was rather the plaintiffs who overloaded a single phase electricity supply to their office with heavy duty electrical gadgets, thus resulting in the overhealing and burning of the underground cables., and accordingly denied liability. They also claimed that the underground cables were unserviceable and had served their purpose well until they were overloaded as alleged above. In applying the said doctrine to the evidence in this case, it is necessary to consider the explanation given by the defendants as stated above. The evidence of the plaintiffs’ employee is that

[p.1027] of [1997-1998] 2 GLR 1016 when the fault occurred, he went to complain to the faults superintendent of the defendants, one E K D Annan. He said:

“The latter complained that there was too many complaints from the area; that he would come and check and if the fault happened to be due to me, I would be charged. He came and tested and in spite of the fact that the main switch had been put off there was power. He then went to the main switches, pulled off the fuse and yet there was power. He went to the office and brought some workmen. They dug the street and discovered the main underground cable had broken in two parts . . . The cable was very old and overloaded.”

This piece of evidence found confirmation in the evidence of the defendants themselves. When the said defendant witness was cross-examined, he admitted in cross-examination thus:

“Q You told the plaintiffs if the fault was theirs, they would be made to pay for the damage.

A Yes, but I was joking with him, he being a friend. He also knew I was joking with that remark”

The point here is that the defendants or their employees knew that there has been frequent breakdown of electricity in that area through frequent complaints of same made to them but did nothing. Further, after the occurrence of the fault, they changed the old cable size 35mm and fitted a bigger-sized cable that is size 185mm in place of the old one. They also admitted that since the change, no complaint had been received by them of faults emanating from the area.

These pieces of evidence are, in my opinion, very material to the consideration and determination of the issue whether the defendants exercised due care and diligence in the discharge of their duties as supplier of electricity, and also to the issue of reasonable forceability of an accident occurring and resultant damage to those to whom they had contracted with for the supply of electricity. No doubt, if the defendants had heeded the ample warning that there was trouble on the cables, and if they had investigated, they would have identified the aged condition of the burnt underground cable before this accident occurred. As it is, they ignored all the ample warnings of the impending accident and their failure to act in such circumstances, in my judgment, was the cause of the burning of the old cable,; and I so find as a reasonable

[p.1028] of [1997-1998] 2 GLR 1016 inference on the evidence. Their explanation that it was the result of the overloading of the cables by the plaintiffs is unacceptable and unreasonable, considering also the fact that the burnt cable was supplying electricity to other offices in the whole building and not only to the plaintiffs’ office.

Furthermore, the defendants in their statement of defence, paragraph (6), indirectly admitted their lack of diligence in discovering the condition of the burnt cable earlier. They stated therein as follows:

“(6) Concerning paragraph (11) of the statement of claim, the defendants deny their negligence. The plaintiffs them selves confessed in paragraph (7) that when they made the report to the faults superintendent, the defendants’ workers proceeded to attend to the fault, and upon inspecting it discovered that an underground cable leading to the plaintiffs’ premises had been cut into two in the public street. This discovery can only come from the defendants’ diligent attention to the plaintiffs’ problem . . .”

This shows that if the defendants had heeded previous warnings in the same diligent manner as they claimed above, that they applied in this case then the accident would have surely been avoided. The defendants ought to have, in the circumstances of this case, reasonably foreseen the possibility of the burning of the old cables which, in fact, happened in the end. If the old underground cables had been changed earlier, the accident would not have happened. In my opinion, on the evidence available in this case, there was clear evidence from which negligence on the part of the defendants could reasonably be inferred since their explanation was unsatisfactory to absolve them from the charge of negligence in the circumstances of this case.

If the evidence had been properly evaluated and applied to the doctrine of res ipsa loquitur by the trial court, it would not have dismissed the plaintiffs’ claim; and the same applies to the findings of the Court of Appeal, which affirmed the trial court’s findings. The two findings were against the weight of evidence since, on a balance of probabilities, the plaintiffs were entitled to succeed in their claim against the defendants. The appeal therefore succeeds.

[p.1029] of [1997-1998] 2 GLR 1016

Regarding the award of damages, I have had the privilege of reading in advance the judgment of my noble brother Charles Hayfron-Benjamin JSC, and I agree entirely with him on that issue.

Hayfron-Benjamin JSC. This is an appeal from the majority judgment of their lordships in the Court of Appeal wherein the appellants’ (hereinafter referred to as the plaintiffs) appeal from the decision of the High Court, Cape Coast, was dismissed— – Essiem JA dissenting. The plaintiffs now appeal to this court on two grounds:

“(a) The judgment is against the weight of evidence adduced at the trial; and.

(b) the court erred when it held that the plaintiffs have not proved their case to warrant judgment in their favour.”

It seems to me clearly that this was a case in which both the High Court and the Court of Appeal, having recognised the principal matters for consideration, nevertheless misconceived the evidence and failed to draw the right conclusions from it. Patently, their judgments were against the weight of evidence. I am therefore in wholehearted agreement with the statements of Essiem JA in his dissent from the majority decision of the Court of Appeal where the learned judge wrote: “an appellate court is entitled to draw the right conclusion from the found facts and … may come to its own conclusion which may differ from that of the trial judge.”

In this appeal— – and I say so with great respect to them – —their lordships in the High Court and the majority of the Court of Appeal dwelt on inconsequentials, postulated on proof of negligence and the application of the doctrine of res ipsa loquitur and dismissed the plaintiffs’ claim. As I have said, a careful appraisal of the pleadings and evidence would have led to a different result from what was arrived at.

It was common ground that the plaintiffs were the acknowledged customers of the defendants. The issue of a contractual relationship between the parties was therefore irrelevant. There was evidence that the defendants regularly billed the plaintiffs for electricity consumed and the plaintiffs paid the same. The defendants, by their statement of defence, virtually admitted the case of the plaintiffs. The defendants admitted

[p.1030] of [1997-1998] 2 GLR 1016 paragraphs (1) to (10) of the statement of claim, which for the same of regularity, will be stated hereunder:

“(1) The plaintiff is a limited liability company with its registered office at Cape Coast and it sues per its managing director Mr Kojo Mensah of Cape Coast.

(2) The defendant-corporation is a registered corporate body with a business office at Cape Coast.

(3) The defendant – corporation has also contracted for a fee to supply the plaintiff company with normal supply of electricity.

(4) Some time on Saturday, 21 March 1981, at about 7.30 am, the plaintiff ‘’s managing director, Mr Kojo Mensah, entered the premises of his office and switched on the electrical switches only to hear an explosion of electric bulbs in his said office.

(5) The plaintiffs aver further that minutes later, the fluorescent lights in the said office started emitting flames.

(6) The plaintiffs’ managing director switched off the lights and quickly reported the occurrence to the faults superintendent in charge of the defendant corporation’s office in Cape Coast.

(7) An inspection by the defendants’ workmen on the plaintiffs premises indicated that the main underground cable to the meters had been cut into two in the public street.

(8) Further to paragraph (7) supra, the plaintiffs aver that the broken electric cable was clearly a fault developed on the Electricity Corporation service cable connecting to the plaintiffs’ company’s premises.

(9) The plaintiff company subsequently sought the opinion of an expert electrical company, namely, Alex Dsane Electricals, Cape Coast.

(10) The opinion of the said expert company clearly pointed out that the ‘fault’ was from the corporation’s service cable.”

It must be noted from the statement of defence that there is a pleading in paragraph (3) thereof that the defendants “are not in position to admit or deny paragraphs (4), (5) and (6) of the statement of claim.” It is his now trite learning that such a pleading constitutes admissions of the opponent’s pleading. A

[p.1031] of [1997-1998] 2 GLR 1016 party need not plead to particulars except perhaps making a general traverse of the particulars as a whole. Yet the defendants inferentially pleaded to the particulars. The defendants pleaded in their paragraph (6) of their defence thus:

“(6) Concerning paragraph (1) of the statement of claim, the defendants deny their negligence. The employee of the plaintiffs himself confessed in paragraph (7) that when he made the report to the faults superintendent, the defendants workers proceeded to attend to the fault and upon inspection discovered that an underground cable leading to the plaintiffs’ premises had been cut into two in the public street. This discovery can only come from defendants diligent attention to the plaintiffs’ problem.”

The defendants also contended that: “The cutting of the under ground cable was accidental, being due to fair, wear and tear.”

In my respectful opinion, the defendants’ pleading in their paragraph (6) of the statement of defence, was an admission of the particulars averred in paragraph (11) of the plaintiffs’ statement of claim. But in the face of these admissions, were the plaintiffs relieved from adducing evidence of those particulars? A critical examination of that paragraph will demonstrate that there was no clear admission. True, there was a denial of negligence. But there was no unequivocal admission of these particulars, for within the paragraph existed the possible defence that there had been diligent attention paid to the maintenance of the cable. The plaintiffs could therefore only be relieved from adducing evidence of the negligence if the defendants’ admissions were clear and unequivocal. Indeed, by the amended paragraph (11) of their statement of defence, the defendants sought to turn the scales on the plaintiffs by charging them with overload of the power supply which damaged the corporation’s electrical system. This assertion, as it turned out, was to their knowledge untrue. In my opinion, the plaintiffs gave such evidence of negligence and damage as to call upon the defence to explain how the incident could have occurred without their being negligent.

In the High Court the learned judge found that:

“The defendants . . . owed a duty of care to the customers to ensure that the cable was capable of serving all the places for which it was intended to serve and was actually serving.

[p.1032] of [1997-1998] 2 GLR 1016

Whether or not the plaintiffs were using a new or old meter would not enure to the benefit of the defendants, since they were aware of the existence of the meter, they were reading it and billing the plaintiffs, which bills, they for their part, were settling,”

Having so found that the defendants owed the plaintiffs a duty of care, the learned High Court judge proceeded to find whether there had been a breach of that duty. In other words, whether the particulars of negligence had been proved. The learned judge concluded as follows:

“However, in court they called no expert opinion with regard to the particulars of negligence (a) through (g) on which the plaintiffs led evidence. It appears it required expert evidence to establish these particulars. The only one on which the defendants did not dispute was (f), that they did not service ort maintain the cables.”

In the judgment of the majority of their lordships in the Court of Appeal, they said in respect of the particulars that: “They (the plaintiffs) sought to do so by pleading in paragraph 11 of their statement of claim some particulars of negligence.”

I have already expressed myself on the defendants’ pleading to the particulars and I have concluded that they amounted to admissions of those particulars, though not unequivocally. Further, there was evidence that the plaintiffs were willing and ready to call the expert evidence but that the defendants undertook to call such witness. On 6 June 1995 when the court sat, there was this understated court note before further evidence was led:

“Mr Odro informs the court that he had wished to call Mr Dapatem, Mr Bondzie and Mr Wardie all employees of the defendants but Mr Korley states he himself will call them.”

(The emphasis is mine.)

Now, Mr Korley was counsel for the defendants, had struck a bargain with counsel for the plaintiffs that he would call the expert witnesses whom the plaintiffs wished to call. True to his bargain, counsel called the three witnesses. The effect, however, was that the plaintiffs were relieved of the burden of calling those witnesses, and that thereby enabled the witnesses to be cross-examined by their counsel. The effect of such a situation was that the defendants

[p.1033] of [1997-1998] 2 GLR 1016 were bound by answers adverse to the defendants’ case elicited from their own witnesses. As it happened, if the plaintiffs had called those expert witnesses, the defendants would have had no evidence to offer save some inconsequential and irrelevant questioning of the experts. For, even in their examination-in-chief, the defendants, through their witness, the first defendant witness, stated in specific reference to particulars (d) and (f) as follows:

“Not true the rating fuses were higher than the current rating of the cables they are supposed to protect . . . Cables are buried and do not need maintenance. Not true the cables were too old. In my opinion, the cause of the incident was serious overheating causing insulation to breakdown blasting the cables box. If the service cable gives way the supply will be interrupted; it is possible there will not be supply to the premises.”

(The emphasis is mine.)

This witness stated, still in examination-in-chief that the overheating was caused by the overloading of the cables. The witness stated that the result of overheating of the cable was different from overloading the cable. He stated emphatically: “Overloading cannot overvoltage.” (The emphasis is mine.)

Under cross-examination, counsel for the plaintiffs delivered the csoup de grace when he put the questions thus:

“Q You said overloading. What does it mean?.

A Yes. Overloading means you stress to the point of breakdown and overvoltage is unusually high voltage.

Q What caused the fault on your cable?

A Serious overheating.”

(The emphasis is mine.)

The second witness for the defendants, was even more fortnight in his evidence-in-chief, for he stated: “I found that the fault came from an underground cable after I had examined it.” And how did he get to the cable to examine it? Said he under cross- examination “I went to the site with a number of workers whom I instructed to dig the ground till we reached the cable joint box, and on opening it I found the cable itself was burnt.” (The emphasis is mine.) Cross-examination of this witness elicited the answer that the cable affected the whole of the UAC Building within which the plaintiffs’ business was situated. In any case, the

[p.1034] of [1997-1998] 2 GLR 1016 assertion by the defendants’ first witness that: “underground cables are buried and are not subject to maintenance” was seriously contradicted by the third defendant witness when he stated in-chief that: “We replaced the cable with a new one, we fitted a new one . . . which was bigger than the old one. That is what we do, we replace old cables with new ones.” (The emphasis is mine.)

In my respectful opinion, the cause of the incident was serious overheating of the cable due to an unusually high voltage in an old underground cable. The cable belonged exclusively to the defend ants; they had exclusive control over its use and maintenance. The cable was to their knowledge deeply buried underground, and the burning of the cable which caused the tear in the connecting wires occurred in the part of the cable leading to the public street. In all the circumstances, therefore, it was res ipsa loquitur. The plaintiffs were only required to establish that the incident occurred and the burden was then on the defendants to establish how the incident could have happened without their being negligent.

The burden of proof, of course, lies on the party alleging negligence to establish his case by a preponderance of evidence. Such proof would normally be discharged by the party so alleging if he offers evidence, inter alia, of carelessness or want of care. But the situation giving rise to such a charge of negligence may not always be within the knowledge of the party making the allegation. Thus in certain cases, it is possible for the party to rely on the mere fact that the incident occurred as affording prima facie evidence of want of due care on the part of the other party. What the learned authors of the treatise on Torts by Clerk and Lindsell (12th ed) call: “The classic statement of the circumstances in which the (party) is able to do so” is contained in the English case of Scott v London & St Katherine Docks (1865) 3 H&C 596 at 601, where Earle CJ 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 use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”

Then, as Devlin J (as he then was) put it in the English case of Southport Corporation v Esso Petroleum Co Ltd [1953] 3 WLR

[p.1035] of [1997-1998] 2 GLR 1016

773 at 781: “res ipsa loquitur is a principle which helps him (plaintiff) to do so.”

In the instant appeal, as I have said, had the plaintiffs called the expert witnesses, as indeed they were going to call them, the defendants would have had no evidence to offer. As it happened, the evidence offered by the defendants was rather in favour of the plaintiffs to the effect that it was only they, the defendants, who knew what caused the incident. In his evidence-in-chief, the first defendant witness stated that: The fault was outside the premises of the plaintiffs” (The emphasis is mine.) If, indeed, the fault occurred outside the plaintiffs’ premises, then it was they, the defendants, who knew how the incident could have occurred without their being negligent. The defendants offered no explanation and I therefore adjudge them liable in negligence for the incident which occurred, affecting the delivery of electricity to the plaintiffs’ premises whereby the plaintiffs were damnified.

Before us, learned counsel for the parties did not advert our attention to the issue of damages. It appears they were content to press the issue of liability and leave it to the court to, as it were, “give them something.” This practice was frowned upon in the English case of Bonham-Carter v Hyde Park Hotels Ltd (1948) 64 TLR 177, where the court said:

“The 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.”

However, by their amended writ of summons, the plaintiffs claimed “¢0500,000 general and specific damages for breach of contract for the supply of electricity and or alternatively for negligence and/or nuisance.” It seems the plaintiffs’ writ was further amended with leave of the court, for the court notes for the sitting on 24 June 1985 states: “Application for leave to amend the amended writ of summons . . . asks for amendment to read general damages . . . By court: Leave to amend granted.” A third attempt at amending the plaintiffs’ writ of summons failed. In my respectful opinion, I must, from the tenor of the judgment and the nature of the evidence led, conclude that the plaintiffs’ action was in damages for negligence by the defendants.

[p.1036] of [1997-1998] 2 GLR 1016

The pleadings were inelegantly drafted and it appeared the plaintiffs had not given any particulars of the damage. In fact, the particulars of damages had been given. For, paragraph (13) of their statement of case thereof stated:

“(13) By reason of the said negligence of the defendant- corporation, substantial damage was caused to electrical and other properties belonging to the plaintiff-company. The list of the damage to properties is attached herein as schedule A.”

The schedule A was an itemized list of goods damaged and the expenditure which the plaintiffs claimed to have suffered as a result of the defendants’ negligence. The total sum claimed was ¢300,771.50 for both special and general damages. The learned High Court judge acknowledged in his judgment that: “All the relevant witnesses testified that the IBM copier machines got spoiled, and I do accept that.” (The emphasis is mine.) The learned High Court judge did not accept that the bulbs were blown out as a result of the cut in the underground cable. But the defendants’ witness said in evidence: “when there is an overvoltage, bulbs may blow up and other electrical appliances may be affected.” It was this over-voltage (overheating) which, in the view of this witness for the defence, caused the incident.

I do not think that in view of the above statement by the defendants’ witness, any useful purpose would be served by an examination of the electrical and other equipment which the plaintiffs complained got spoiled. However, it would suffice to add that the plaintiffs’ witness, Miss Sarah Aggrey, under crossexamination, stated categorically that: The air – conditioners could not function. They got spoilt at the same time as the machine. They had been functioning before.” (The emphasis is mine.)

The majority decision of the Court of Appeal did not deal at all with the issue of damages – no doubt because they were dismiss ing the appeal. The dissenting opinion, however, considered the issue of damages but in a very lackadaisical manner. In my respectful opinion, the plaintiffs suffered the special damage claimed and they are entitled to the amount of ¢103,771.50 as being that part of their special damages stated in the schedule (aA) to their statement of claim. The plaintiffs made a claim for the loss of use of a machine – presumably the photo-copying machine. The plaintiffs estimated the period of loss of use at 48 working days at

[p.1037] of [1997-1998] 2 GLR 1016

¢1,500 per day. This claim cannot be classified as a head of special damage. Loss of use is properly a head of general damages. The learned authors, Clerk and Lindsell, of the treatise on Tort (earlier referred to in this opinion) state:

“When a chattel is damaged by a wrongful act, one direct consequence is that the owner, beside being put to the expenses of repairing it, is deprived of its use during the period of repair, and for this loss of use he is entitled to recover. The question is what is the use which, but for the wrong he would have had his chattel, and what (excluding the element of uncertain and speculative and special profits) he would otherwise have earned by its use.”

I would adopt this principle and apply it to the appeal in hand.

Miss Sarah Aggrey testified in-chief that she operated the photocopier and charged the customers for the service. She tendered two books, exhibits F and G, which were some of the books in which she recorded the daily income. She estimated the machine could not be repaired for about three months “until they sent for some white engineers.” There was clearly evidence of loss of use. The defendants did not cross-examine her on this evidence. As between the evidence of Miss Aggrey and the plaintiffs’ claim for 48 days loss of use, I would incline to the more realistic figure in the particulars. There is no evidence that the books, exhibits F and G, were examined by their lordships in the High Court or the Court of Appeal. I therefore accept the figure of ¢72,000 as being reasonable, and I would award it to the plaintiffs.

There is evidence that the plaintiffs had contracted with a Mr Kumi Bruce for the printing of certain material, for which he was to pay ¢279,010 and that he had paid a deposit of ¢30,000, leaving a balance of ¢249,010. The agreement was executed on 22 January 1981. The photocopier was out of use between 20 March 1981 and 31 May 1981 by which time Mr Kumi Bruce had collected seven copies each of nine volumes. There is no evidence of any other payment in diminution of the contract price. Now, general damages are a species of damages, which the law presumes to flow from a wrong complained of and which need not be specifically pleaded. The plaintiffs did not plead this head of damage. But I am satisfied that there was a loss of their bargain. The figure of ¢150,000 stated in the particulars is only an indication of a gzeneira1 loss. Had the plaintiffs left the damages at

[p.1038] of [1997-1998] 2 GLR 1016 large, I would have awarded the full loss of ¢249,010 as general damages. In the circumstances, I would award ¢175,000 as reasonable damages for the loss of expected income. In the result, I would make the following awards:

(a) Special damage …………………………………………………………………… ¢103,771 .50

(b) Loss of use of machine ………………………………………………………… 72,000

(c) General damages …………………………………………………………………. 175,000

Total …………………………………………………………………………………… ¢340,771 .50

This is a case in which neither the High Court nor their lord ships in the Court of Appeal treated the case with the seriousness it deserved. I have restrained myself from making any other comments in the circumstances save for the mild expressions of disapproval for their lordships approach to the issues before them.

I would also allow the appeal, set aside the majority judgment in the Court of Appeal and in its place enter judgment in favour of the plaintiff-appellants in that court. I would also set aside the judgment of the High Court and in its place enter judgment for the plaintiffs for the reliefs claimed. The plaintiffs will have their costs in the High Court, Court of Appeal and in this court.

Ampiah JSC. I agree that the appeal be allowed.

Acquah JSC. I would also allow the appeal.

Atuguba JSC. I would reserve for another occasion a consideration of the questions whether the maxim res ipsa loquitur creates a rebuttable presumption or is merely a rule of inference, as provided by section 18 et seq of the Evidence Decree, 1975 (NRCD) 323). Can the doctrine consistently continue to operate under its common law independence or there is the need for its capture and domestication under the regime of the NRCD 323?

However, on the facts of this case, I do not think that a consideration of these matters would lead me to a conclusion different from that of my lord the president. I therefore concur in the allowance of this appeal.

Appeal allowed.

SA