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ADJEI v. YEBOAH AND ANOTHER


  • New
  • 1962-06-25
  • HIGH COURT
  • 1 GLR 495-499
  • Print

DJABANOR J.


Summary

Negligence?-Collision between two vehicles.Personal injuries?-Quantum of damages.

Headnotes

On the 6th July, 1960, the plaintiff, a self-employed lorry driver by profession, suffered a compound fracture of both thighs as a result of a collision between a lorry driven by the first defendant and on which the plaintiff was travelling as a passenger, and another truck belonging to a Government department. He was treated in hospital for two months. Thereafter he underwent native treatment [p.496] for seven months. The plaintiff was unable to return to work until sometime in February, 1962. During the whole period, as he was unable to walk without assistance, he engaged a conductor to whom, he alleged he paid 10s. per day. He sued in June, 1961, claiming general damages for personal injuries. In addition he claimed, as special damages, G346 loss of earnings at the rate of G1 per day, wages paid to the conductor, and moneys spent on medical treatment, including G12 spent on native medicine.

Judgement

ACTION for damages for personal injuries. The facts are fully set out in the judgment of Djabanor J.

The plaintiff?'s claim was against the first and the second defendants jointly and severally for G3,000 damages for personal injuries to the plaintiff caused by the first defendant, a servant of second defendant on the 6th July, 1960, while negligently driving the second defendant?'s lorry No. AN 4947 on the Kumasi-Tamale motor road.

The first defendant in his statement of defence denied that he was negligent and put the blame for the accident on the driver of the water supplies lorry, No. WE 5255, charging the said driver with negligently and suddenly coming across the road thus confronting him, the first defendant, head on in circumstances in which no reasonable amount of care could have prevented a collision. [p.497]

The first duty of the plaintiff was therefore to prove that the first defendant was negligent. This he set out to do, in my view successfully. He said he was a passenger in the first defendant's lorry from Kumasi to Tamale. Before the accident the driver, the first defendant was in a hurry. He was driving fast; he said he wanted to reach Tamale, off-load, and load back to Kumasi the same day. He left Yeji in the morning and was hurrying along when the accident occurred. He said he kept warning the driver that he was travelling too fast. When they were nearing Jantulu, he saw an on-coming vehicle. There was a bridge ahead of their vehicle and he saw that the on-coming lorry stopped behind that bridge. But the first defendant did not slacken his speed and drove into the stationary water supplies lorry. The first defendant?'s lorry was driven so fast that it pushed the water supplies lorry backwards for a distance of about 20 yards. This water supplies lorry was 17 feet long, weighs 7 tons, and it was carrying a 17-foot rig also weighing 5 tons. This shows clearly that the water supplies lorry had stopped, for if it were moving, the first defendant?'s lorry could not have pushed it like that. It shows also that the first defendant's lorry was travelling very fast, otherwise it could not have pushed a longer and heavier vehicle so far backwards. The first defendant said he was travelling at the speed of 20 to 25 m.p.h. at the time. Firstly, I think it is an excessive speed in the circumstances. Secondly, if the defendant's lorry was travelling at that speed it should have been able to stop within the 20 yards. I am satisfied from the evidence that the water supplies lorry had stopped. The testimony of the plaintiff and the water supplies' driver is worthy of credit, and I am satisfied that they spoke the truth.

If the water supplies lorry stopped before entering the bridge, which I believe, then prima facie the defendant's driver was negligent, for when a moving vehicle collides with a stationary one the presumption is that it is the fault of the moving one: Mbadiwe v. Yaya and Anor.1 Randall v. Tarrant.2 In my opinion the first defendant cannot even say that it was the fault of the driver of vehicle No. WE 5255 for not giving him sufficient room to pass, for if roads are in such a condition that a motor- car cannot safely proceed at all it is the duty of the driver to stop. If the roads are in such a condition that it is not safe to go at more than foot pace, his duty is to proceed at foot pace. The first defendant's defence was that he was driving at a steady pace of 20 to 25 m.p.h. when just as he was passing through the bridge the water supplies' driver suddenly drove the vehicle across the road and from a distance of 15 to 18 yards he was unable to avoid the accident. I don't think this story can be true. From the force against the water supplies lorry, there is no doubt that it had stopped and also that the defendant's lorry was travelling very fast. Certainly much faster than the 20 to 25 m.p.h. he admitted. I think he failed in his duty to exercise care when he was reaching the narrow bridge. He certainly ought to have slowed down, even stopped, when he was approaching the bridge and when he saw that there was another vehicle also approaching the bridge from the other side. I am satisfied that the collision was the fault of the second defendant's driver and I adjudge him negligent and condemn him to pay damages to the plaintiff.

The plaintiff claimed for loss of earnings as a driver at the rate of G1 per day from the 6th July, 1960, the date of the accident, to the 17th June the following year, 1961. That works out at G346. In my view [p.498] G1 per day as a self-employed driver is a reasonable average to take, especially considering that, as he said in evidence and this was not challenged, he was getting more by way of profits from time to time. I take into consideration also the fact that if he had not been injured he might not have earned money every day. Considering all this I think I will award the plaintiff G1 per day as claimed. In Dennis v. L.P.T.B.3 Denning J. (as he then was) held that special damages by way of wages should be awarded "From the date of the accident until the date on which he was fit for work. . ." According to his evidence, again not challenged, the plaintiff started work again in February, 1962. That means that he is entitled to his earnings from 6th July, 1960 to 31st January, 1962. That will be certainly more than the plaintiff claimed under that head. Since he did not amend his claim accordingly, I am unable to award him any more than his claim of G346. I award him that sum in respect of loss of earnings. Again the plaintiff was not challenged about the payment by him to the lorry conductor. I think the employment of the conductor was necessary, but I don't accept the 10s. per day as reasonable. I think 6s. per day is reasonable in the circumstances and I will award that amount for the 346 days claimed. That comes to G103 16s. I know that the hospitals charge a fee of 1s. or 1s.6d per day for in-patients. I don't think that G4 10s. is unreasonable. I will accept that amount as the fees paid by the plaintiff when he was admitted at the Tamale hospital for the two months. Again I will accept the G12 as reasonable expenses incurred for the native doctor's treatment which, according to the defendant, lasted about seven months. I am sure that during this time the plaintiff spent much money buying the various things with which the medicine was made for his cure. That brings the total special damage to G466 6s.

The plaintiff also claimed general damages of nearly G2,500. It is obvious that the plaintiff has suffered considerable pain and discomfort. According to him he spent two months in hospital and 16 months in a village undergoing native treatment. The defendant admitted that the plaintiff was in hospital for two months, but said that he was receiving native treatment in the village for only seven months. The plaintiff's injuries consisted apparently of a compound fracture of both thighs. The injury to the thigh appears to have affected the knee, so that the plaintiff even now cannot bend the knee perfectly. There is a shortness of the right leg, in consequence of this injury, of about half an inch to one inch. The plaintiff limps quite visibly. According to the doctor he will get tired more easily. He is at present fit to do his work as a driver, but there is bound to be some permanent incapacity. The accident was a serious one and there is no doubt that it inflicted a great deal of pain on this unfortunate plaintiff over a considerable period. He was in hospital for two months, and then under native medical attention also for at least seven months, and I think he was subjected to the necessary, and one may say at least highly unpleasant, treatment required in order to make both his thighs set as well as possible. It appears that both thighs have now healed satisfactorily, except for the limitation in the use of the right knee and the shortening of the right leg. As soon as he was able to work he started work again, that is, after having been disabled for about eighteen months. He appears to me to be about 35 years old. In assessing damages I have taken all these matters into consideration as also comparable cases in which awards were made or considered by the Court of Appeal in England, particularly [p.499] the cases of Davies v. Richard Thomas and Bladwin Ltd.4 in which general damages of 2,250 were increased to 3,250. In that case the plaintiff had a severe leg injury which rendered the knee entirely stiff. He suffered severe pain for a long time. Also the case of Cooper v. Robinson Ltd.5 In that case the plaintiff suffered compound fracture of right thigh and fracture of right hip. There was permanent limitation in his hip, knee and ankle. He obtained work at reduced wages. The Court of Appeal confirmed the award of 3,250. Then also Sargent v. Lane and Ors.6 In that case the plaintiff broke his left leg and was left with a permanently stiff knee. The trial judge's award of 4,000 was reduced by the Court of Appeal to 2,000. In all the circumstances I think an award of G2,000 general damages would be fair.

I give judgment for the plaintiff against the defendants for G2,000 general and G466 6s. special damages. Costs for the plaintiff against the defendants assessed at 55 guineas.

Decision

Judgment for the plaintiff.

Plaintiff / Appellant

E.O. Appiah for I. R. Aboagye

Defendant / Respondent

J. Owusu-Yaw

Referals

(1) Mbadiwe v. Yaya (1954) 14 W.A.C.A. 613

(2) Randall v. Tarrant [1955] 1 All E.R. 600

(3) Dennis v. L.P.T.B. [1948] 1 All E.R. 779

(4) Davies v. Richard Thomas & Baldwin Ltd. Court of Appeal (England) January 28, 1953 unreported; noted in Kemp's Personal Injury Claims (2nd ed.) Vol. 1, p. 577

(5) Cooper v. Robinson Ltd. and Ors. Court of Appeal, April 24, 1958, unreported; noted in Kemp's Personal Injury Claims (2nd ed.) Vol. 1, p. 574

(6) Sargent v. Lane and Ors. Court of Appeal, May 5, 1953, unreported; noted in Kemp's Personal Injury Claims (2nd ed.) Vol. 1, p. 586.

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