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ABENA MANU v. KAKRABA AND ANOTHER


  • New
  • 1962-05-09
  • HIGH COURT
  • 1 GLR 341-344
  • Print

BRUCE-LYLE J.


Summary

Master and Servant?-Negligence of servant?-Scope of employment.Negligence?-Servant pleads guilty to negligently causing harm?-Whether admission of negligence against master.Fatal accidents?-Death of a school boy aged fourteen years?-Quantum of damages?-Reasonable expectation by parent of pecuniary benefit.

Headnotes

Kwame Boakye, a school boy of fourteen years of age, in Middle Form 4 riding on a vehicle driven by the first defendant, was killed in an accident between Derma and Ankase. The first defendant was later charged with the criminal offence of negligently causing grievous harm to Boakye. He pleaded guilty in the district court and was convicted. The plaintiff instituted these proceedings on behalf of herself and one Ama Bour, the grandmother and guardian of Boakye for G2,000 damages under the Fatal Accidents Act, 1846 (9 & 10 Vict., c. 93). The first defendant did not file any appearance, and did not contest the case. The second defendant admitted ownership of the vehicle, but denied that the first defendant drove the vehicle on his instructions or acted within the scope of his employment. This latter contention was based on the submission that the plaintiff failed to prove explicity that Boakye rode on the vehicle that day as a fare-paying passenger.In proof of damage, the plaintiff led evidence to the effect that Boakye fetched firewood and foodstuffs and help to cultivate the farm.

Judgement

ACTION for damages under the Fatal Accidents Act, 1846, for negligently causing the death of a school boy aged fourteen years.

This is a claim founded in negligence and on the Fatal Accidents Act of 1846 1 in which the plaintiff claims, as mother of one Kwame Boakye (deceased), for her benefit and for the benefit of one Ama Buor, the grandmother and guardian of the said Kwame Boakye (deceased), G2,000 damages against the first and second defendants jointly and severally for the first defendant's negligence in carrying the said Kwame Boakye (deceased) by a Volkswagen bus No. AH 8880 whereby the said Kwame Boakye was killed on the Derma-Ankase road on the 20th June, 1961, the second defendant being at all material times the master of the first defendant.

The statement of claim was filed with the writ in which the plaintiff supplied all the particulars of negligence and also particulars pursuant to the Fatal Accidents Act, 1846.

The first defendant did not enter appearance and on the 25th November, 1961, interlocutory judgment was entered against him. At the trial of this claim against the second defendant, this court decided that it would be more convenient to assess damages against the first defendant at the end of the case.

The evidence of the plaintiff was that on the 20th June, 1961, her son Kwame Boakye, aged fourteen years and a Middle Form 4 pupil, went to school at Derma from Ankase, and that when returning from school in the evening he was a passenger on a Volkswagen bus No. AH 8880 belonging to the second defendant and driven by the first defendant. That the bus on the way to Ankase went into a ditch and Boakye sustained injuries from which he died later. That the first defendant was later charged with negligently causing grievous harm to the said Boakye and he pleaded guilty to the charge and was fined G75 or in default six months imprisonment. That Boakye would have completed his elementary education at the end of the year and the wish of the plaintiff was to get him employed in the civil service of this country. That at the time of the death of Boakye he assisted the plaintiff on her farm, helped her to fetch firewood and foodstuffs from the farm and helped her to cultivate the farm. The plaintiff said that after school she expected Boakye to secure employment and to look after her and the grandmother, and that she and the grandmother have lost all these benefits by the untimely death of her son. There was no other evidence to corroborate the evidence of the plaintiff as to the assistance rendered to her on the farm by her son and also that he was a passenger on the bus owned by the second defendant and driven by the first defendant at the material time. However, there appears to be no denial in the statement of defence of these facts, which were averred in the statement of claim. [p.343]

The case for the plaintiff is that by the death of Boakye, she and the grandmother have been deprived of the benefits which they derived from the services of Boakye on the farm and that the second defendant is vicariously liable for the negligence of the first defendant.

The second defendant did not in his statement of defence deny that he is the owner of the bus driven by the first defendant but denied the fact that the first defendant at the material time was acting under his instructions in driving the said bus.

The plaintiff called evidence to substantiate her contention that on the material date the first defendant was carrying out the instructions of the second defendant. This contention was clearly borne out by the evidence of P.W.s 1, 2 and 3. [His lordship reviewed the evidence of these witnesses and concluded:] I therefore find that the second defendant in fact handed over the ignition key to the first defendant, his mate, to drive the passengers on his bus from Ankase to Derma.

[He then continued:] The instructions of the second defendant were for the first defendant to drive the passengers to Derma, and to quote P.W. 1, "carefully and safely to Derma and back". Can the carrying of passengers from Derma to Ankase be considered as covered by the instructions of the second defendant? Counsel for the second defendant strongly argued that such conduct by the first defendant was covered by the instructions of the second defendant if those carried from Derma to Ankase were passengers for a fare, and I agree with this line. The issue, therefore, to be decided is whether Kwame Boakye the deceased, was a passenger for a fare as distinct from one who was on the bus for a gratuitous drive. The second defendant's counsel contended that there was no evidence to show that Boakye actually paid any fare; that he was on the bus with other passengers and that the plaintiff should have called some of the other passengers with Boakye to prove that deceased did in fact pay fare. There is evidence of the plaintiff that she always gave two shillings a day to her son out of which amount the son paid his lorry fare to and from school. Counsel for the second defendant suggested that there was the possibility that Boakye on this material day had no money left with which to pay his fare back home from school. There was no evidence to support such a contention, neither was there evidence to rebut the evidence of the plaintiff that Boakye was always provided with money for his fare. This piece of evidence in my opinion raises a strong, though rebuttable, presumption that Boakye could not have been enjoying a free ride on the first defendant's vehicle, and I find that although evidence of other passengers would have strengthened the evidence of the plaintiff on the issue, the absence of the evidence of these passengers does not weaken the unrebutted presumption so raised. In Laycock v. Grayson 2 mentioned in Clerk Lindsell on Tort (10th ed.) at pages 115?-116, it was held that in a case of injury by the negligent act of an employee, who had authority to do some act for some purpose, a presumption is raised that the employee was acting within the scope of his employment and the onus is shifted to the master to show that he was acting outside that scope. This same principle was followed in Packer v. Sekondi/ Takoradi Municipal Council and Another. 3 I therefore find that in this case there is clear evidence that the negligent act of the first defendant took place at a time when the first defendant was [p.344] carrying out instructions of the second defendant in conveying passengers, and once Boakye was on that bus, the presumption is raised that he was on that vehicle as a passenger for a fare, and the onus shifted on to the second defendant to prove that Boakye was not a passenger for a fare and therefore the first defendant in carrying Boakye was acting outside the scope of his authority. I find there is no evidence by the second defendant to discharge this onus.

Evidence that the first defendant pleaded liable to the criminal charge shows, in the absence of any evidence by the second defendant to the contrary, that Boakye died as a result of the negligent act of the first defendant. I therefore find that the second defendant is answerable for the act of the first defendant which resulted in the death of Boakye.

A claim for damages under the Fatal Accidents Act of 1846 can succeed if plaintiff establishes pecuniary loss as a result of death, and the sort of pecuniary loss to be proved has been well defined in the case of Taff Vale Railway Co. v. Jenkins 4 as "a reasonable expectation of pecuniary benefit from the continuance of life." It is not essential that there should be distinct evidence of pecuniary advantage actually derived from the deceased prior to his death. With this background of the law I find the evidence of the plaintiff that it was her wish that the deceased Kwame Boakye be employed in the civil service after completing his elementary education of very little value to this court. There is, however, the evidence of the plaintiff that her son Kwame Boakye helped her on the farm before his death. Although the plaintiff did not say in her evidence that Boakye would have continued to help her on the farm after his elementary education, I find it a probable incidence that Boakye would have continued to help the plaintiff on the farm after leaving school up to the time that he would have secured employment in the civil service.

I therefore hold that this evidence of the plaintiff certainly shows a reasonable expectation of pecuniary benefit to the plaintiff and the grandmother from the continuance of the life of Boakye. I am therefore satisfied that the plaintiff has succeeded in proving pecuniary loss to herself and to the grandmother which entitles her to succeed on her claim.

Damages to be awarded in cases of this nature are not to be measured in terms of replacement of the deceased but must be in terms of reasonable loss of pecuniary benefit based upon the sort of assistance being rendered to the plaintiff by her son at the time of death. Upon this basis, I am of the opinion that G800 is a reasonable amount. I therefore give judgment for the plaintiff as against first and second defendants jointly and severally for G800 general damages. Costs for the plaintiff assessed at G64 15s. 6d including counsel's costs of G42.

Decision

Judgment for the plaintiff.

Plaintiff / Appellant

P. D. Anin

Defendant / Respondent

C.F. Hayfron-Beniamin, Jnr. for the second defendant.

Referals

(1)  Laycock v. Grayson (1939) 55 T.L.R. 698

(2)  Packer v. Sekondi/Takoradi/Municipal Council and Another [1960]G.L.R. 259

(3)  Taff Vale Railway Co. v. Jenkins [1913] A.C. 1

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