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ABOAKU v. TETTEH AND ANOTHER


  • appeal
  • 1962-12-21
  • SUPREME COURT
  • 2 GLR 165-170
  • Print

SARKODEE-ADOO, CRABBE AND AKUFO-ADDO, JJ.S.C.


Summary

The plaintiff sued the defendants jointly and severally for damages for negligence. The plaintiff alleged that in the early morning of January 1, 1960, his car was parked on the left-hand side of the road, and the second defendant's car driven by first defendant ran into the rear of it and damaged it. In the trial court two statements made to the police by the defendants were tendered in evidence through one of the plaintiff's witnesses, a police officer, and were admitted without objection. The defendants themselves elected not to give evidence. [p.166]

The plaintiff's claim was dismissed, the trial judge holding, inter alia, that on the facts, the principle of res ipsa loquitur did not apply, that the plaintiff had failed to prove negligence, and that in any event, as the first defendant was not acting in the course of his employment there was not sufficient evidence to make the second defendant vicariously liable.

The plaintiff appealed. In the Supreme Court the following grounds of appeal were argued:

"(1) That the learned judge was wrong in law to hold that the first defendant who is the servant of the second defendant was not in the course of his employment as there is sufficient evidence on record to make the second defendant vicariously liable.

(2) As regards the liability of the first defendant there was sufficient proof on record of the negligence of the first defendant. Added to this according to evidence on record this is a case where the doctrine of res ipsa loquitur is applicable ...

(5) The statement which the defendants-respondents made to the police and which were signed by them (exhibits D and E) were not admissible as evidence, as they were made by persons who were interested and were made at a time when proceedings must have been anticipated by the persons who made them and therefore the learned trial judge erred in law in admitting them."

Headnotes

The plaintiff sued the defendants jointly and severally for damages for negligence. The plaintiff alleged that in the early morning of January 1, 1960, his car was parked on the left-hand side of the road, and the second defendant's car driven by first defendant ran into the rear of it and damaged it. In the trial court two statements made to the police by the defendants were tendered in evidence through one of the plaintiff's witnesses, a police officer, and were admitted without objection. The defendants themselves elected not to give evidence. [p.166]The plaintiff's claim was dismissed, the trial judge holding, inter alia, that on the facts, the principle of res ipsa loquitur did not apply, that the plaintiff had failed to prove negligence, and that in any event, as the first defendant was not acting in the course of his employment there was not sufficient evidence to make the second defendant vicariously liable.The plaintiff appealed. In the Supreme Court the following grounds of appeal were argued:"(1) That the learned judge was wrong in law to hold that the first defendant who is the servant of the second defendant was not in the course of his employment as there is sufficient evidence on record to make the second defendant vicariously liable.(2) As regards the liability of the first defendant there was sufficient proof on record of the negligence of the first defendant. Added to this according to evidence on record this is a case where the doctrine of res ipsa loquitur is applicable ...(5) The statement which the defendants-respondents made to the police and which were signed by them (exhibits D and E) were not admissible as evidence, as they were made by persons who were interested and were made at a time when proceedings must have been anticipated by the persons who made them and therefore the learned trial judge erred in law in admitting them."

Judgement

APPEAL by the plaintiff-appellant from a judgment of Ollennu, J., in the High Court, Accra, dismissing the plaintiff's claim against the defendants jointly and severally for damages for negligence. The facts are sufficiently set out in the judgment of the Supreme Court.

JUDGMENT OF SARKODEE-ADOO J.S.C.

Sarkodee-Adoo, J.S.C. delivered the judgment of the court. This is an appeal from a judgment of Ollennu, J., as he then was, whereby he dismissed the plaintiff 's claim and entered judgment thereon for the defendants. The plaintiff's claim, by his amended statement of claim, is against the defendants jointly and severally for the sum of G418 whereof G274 is the estimated cost of repairs to the plaintiff's car No. AF 2440 damaged as a result of an accident between his said car and the second defendant's car No. AE 1847, driven by the first defendant, and G144 the estimated amount of loss of earnings for 48 days at G3 per day for the period the car was undergoing repairs.

The plaintiff alleges in his statement of claim that:

"(1) On the 1st January, 1960, at about 5.30?-6 p.m. Agyapong Wari was in charge of the car No. AF 2440 which was stationary on the left-hand side of the Fadama Road facing north.

(2) The first defendant Abraham R. Tetteh in charge of car No. AF 1847 owned by the second defendant who was travelling in the same direction on the Fadama Road, that is the northernly direction negligently drove against the back bumper and the rear side of the stationary car No. AF 2440 and caused damage to it.

(3) Particulars of negligence

(a) Driving at an excessive speed.

(b) Failing to see the plaintiff's car in sufficient time to avoid collision with the rear of the car No. AF 2440.

(c) Failing to stop, to slow down, to swerve or in any other way so to manage or control the said motor-car as to avoid colliding with the rear of car No. AF 2440."

In support of the claim, the evidence of the plaintiff and his two witnesses, (namely, Agyepong Oware (his driver) and Joseph Daniel Akpakpo, Inspector of Police, to whom the accident was reported by the first defendant) briefly put, was that the plaintiff's driver parked the car No. AF 2440 on the left side of the road between 5 a.m. and 6 a.m. on the 1st January, 1960; that the second defendant's car No. AE 1847 driven by the first defendant, ran into and collided with the rear of the plaintiff's said stationary car and damaged it; the damaged car was taken to C.F.A.O. Motors workshop where it was repaired at the cost of G274 claimed herein and further supported by exhibit A being receipts and other documents on the repairs.

The police officer in the course of his evidence said:

"The first defendant was taken to hospital after he had made the report because of serious injuries he had sustained. He was therefore not at the spot when I arrived there. But I met P.W.1 at the spot. In the absence of the defendants, P.W.1 pointed out a spot to me where he said he had left his car. I saw tyre marks on the road which appear to be that of car AE 1847. I saw car No. AF 2440 on the left side of the road facing Abose Okai. The road is 29 feet wide, according to what P.W.1 showed me, his car occupied only nine feet on the left side of the road." [p.168]

Continuing his evidence he further said:

"Later the second defendant reported at the police station and claimed the car AE 1847 as his property, and the plaintiff came and claimed the car AF 2440 as his property. The first defendant told me that he works under the second defendant at Radio Ghana where both of them are employed. The first defendant is a fitter. After my enquiry I took an investigation statement from the first defendant, dated 9th January, 1960, which I now tender ... I took a statement from the second defendant also, dated 1st January, 1960, which I now tender."

[His lordship then recited the contents of the two statements, exhibits D and E and continued:] The first defendant by his statement of defence put the plaintiff to strict proof as to ownership of the said stationary car claimed by the plaintiff, and further alleged that while he was in control of the second defendant's car No. AE 1847, he saw the said stationary car with no one in control on the northern side of the Fadama Road; he denies driving the car negligently and disputes the quantum of damages for the estimated cost of repairs. The second defendant by his statement of defence denied each and every allegation contained in the plaintiff's statement of claim and further alleged that he did not authorize the first defendant to drive his car. However, upon the conclusion of the plaintiff's case, each of the defendants elected not to give evidence and after the plaintiff's counsel had addressed the court, the learned trial judge delivered judgment as already indicated.

Of the grounds filed learned counsel for the appellant argued only grounds (1), (2) and (5) in support of the appeal. [His lordship then read the grounds which are set out in the headnote, and continued:] As to ground (1), we are satisfied that on the settled principles of vicarious liability and the authorities thereon, on the facts as proved and/or admitted, the second defendant could be held liable for the negligence of the first defendant whether or not he is in his employment, and even of the relationship of master and servant strictly speaking does not exist.

In discussing the liability of the master and the essentials of relationship of master and servant, the following appears in Clerk and Lindsell on Torts (11th ed.) at page 118:

"To constitute the relationship of master and servant for this purpose there is no necessity for any consideration for the service. If a person employs another to do some act on his behalf gratuitously, as where the owner of a vehicle gets a friend to drive it for him, the employer will be liable for the manner in which the act is done, to the same extent to which he would be so liable if the agent were paid. It is immaterial that the vehicle is being used partly for the driver's own purposes; the owner only avoids liability when he lends or hires it out for purposes in which he himself has no interest or concern."

In Barnard v. Sully1 it was held that where a plaintiff in an action for negligence proves that damage has been caused by the defendant's motorcar, the fact of ownership of the motor-car is prima facie evidence that the motor-car, at the material time, was being driven by the owner, or by his servant or agent. In Joyce v. Capel and Slaughter2 an action for damage done to the plaintiff's lug-boat by the negligence of the defendants' servant in steering the defendants' barge, it was proved that the barge was the defendants,' but the plaintiff's witness could not identify the [p.169] bargeman who was steering the barge: it was held that this was prima facie evidence that the barge was steered by the defendants' servant, and that if the barge was on hire, or was taken by any other person, it lay on the defendants to show that. In Hibbs v. Ross3 a ship was laid up in a public dock for the winter, under the care of a shipkeeper; the plaintiff, being lawfully on board, suffered injury from the negligence of the persons in charge of the ship, and brought an action against the defendant. At the trial there was no evidence by whom the shipkeeper was appointed, and the only evidence to fix the defendant with liability was the ship's register, on which his name appeared as owner; it was held (by Blackburn and Lush, JJ., Mellor, J., dissenting), that the register was prima facie evidence for the jury from which they might draw the inference that the persons in charge of the ship were employed by the defendant.

Learned counsel in arguing ground (5) referred to, and relied upon, Order 37, rule 62 of the Supreme [High] Court (Civil Procedure) Rules, 1954, which reads thus:

"Nothing in this Order shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish."

Order 37, rules 59 to 61 inclusive, deal with the admissibility of documentary evidence as to facts in issue.

Order 37, rule 62 is equivalent to section 1 (3) of the Evidence Act, 1938,4 which is in force in England and provides that:

"Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish."

In Robinson v. Stern5 a statement in writing made by the defendant to the police at the police station immediately after an accident, and after a police warning, was held to be a statement in writing inadmissible on behalf of the defendant, because section 1 (3) of the Evidence Act, 1938, renders inadmissible a statement made by a person interested at a time when proceedings are anticipated. It was also held that "anticipated" includes "likely."

We have no doubt in our minds whatsoever that the inadmissibility of these statements (exhibits D and E) is without question, and therefore they were wrongly admitted, notwithstanding the fact that they were introduced by the plaintiff and tendered through his witness, the police officer and were admitted without objection.

Turning to ground (2) it is a settled rule of law and cannot be doubted that the onus of proof that the first defendant as the servant or agent of the second defendant has been guilty of negligence falls upon the plaintiff and until he has discharged this burden there is no case to be left to the jury. In a limited number of cases, however, the facts of the accident may of themselves constitute evidence of negligence and the doctrine of res ipsa loquitur applies. "In some circumstances the mere happening of an accident affords prima facie evidence that it was the result of want of due care on the part of the defendant"; see Clerk and Lindsell on Torts, [p.170] (11th ed.) p. 399. In such circumstances the plaintiff will be entitled to succeed unless the defendant by evidence rebuts the probability.

In Byrne v. Boadle6 the plaintiff was walking in a public street past the defendant's shop when a barrel of flour fell upon him from a window above the shop, and seriously injured him. It was held that was sufficient prima facie evidence of negligence for the jury to cast on the defendant the onus of proving that the accident was not caused by negligence. Pollock, C.B. said:

"The present case upon the evidence comes to this, a man is passing in front of the premises of a dealer in flour, and there falls down upon him a barrel of flour. I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had the control of it; and in my opinion the fact of its falling is prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to shew that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them."

In McArthur v. Dominion Cartridge Company7 (a Canadian case), a jury having found that an explosion occurred through the neglect of the defendant-company to supply suitable machinery and to take proper precautions, and that the resulting injury to the plaintiff was not in any way due to his negligence, the verdict was upheld by the unanimous judgments of two courts. The Supreme Court reversed the judgments of the two courts. On appeal to the Privy Council, it was held that an order by the Supreme Court setting aside the verdict on the ground that there was no exact proof of the fault which certainly caused the injury must be reversed. Proof to that effect may be reasonably required in particular cases; it is not so where the accident is the work of a moment, and its origin and course incapable of being detected.

In a case such as the one under consideration here the accident itself raises a presumption of negligence against the defendants, and the onus of disproving negligence was upon them and this they completely failed to do. Having already indicated that exhibits D and E were inadmissible the only evidence before the court was that of the plaintiff and his two witnesses in support of the claim; and excluding these statements (exhibits D and E) we are of the view that in the circumstances the doctrine of res ipsa loquitur applies.

Upon application of this doctrine, we differ, with respect and great reluctance, after listening to the arguments of learned counsel and reviewing all the facts, from the findings and conclusions of the learned trial judge, and are of the opinion that upon failure of the defendants to cross-examine the plaintiff as to the quantum of his claim for repairs and the loss of earnings coupled with their failure to lead evidence to rebut the probability, the plaintiff was entitled to succeed in his claim.

That being so, this appeal must be allowed. We set aside the judgment appealed from together with the order as to costs, and enter judgment for the plaintiff for amount of damages claimed.

Decision

<P>Appeal allowed.</P> <P>Judgment for plaintiff.</P>

Plaintiff / Appellant

Asare

Defendant / Respondent

No appearance by or on behalf of the respondents

Referals

(1)  Barnard v. Sully (1931) 47 T.L.R. 557

(2)  Joyce v. Cape] and Slaughter (1838) 8 Car. & P. 370; 173 E.R. 536

(3)  Hibbs v. Ross (1866) L.R. 1 Q.B. 534

(4)  Robinson v. Stern [1939] 2 All E.R. 683, C.A.

(5)  Byrne v. Boadle (1863) 2 H. & C. 722; 159 E.R. 299

(6)  McArthur v. Dominion Cartridge Co. [1905] A.C. 72, P.C.

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