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ADU v. GLIKSTEN WEST AFRICA LTD. AND ANOTHER


  • New
  • 1961-11-13
  • HIGH COURT
  • GLR 662-665
  • Print

APALOO, J.


Summary

Tort?-Collision between two vehicles?-Plaintiff?'s damaged vehicle left on road unattended?-Parts stolen by unknown persons?-Whether defendant liable for stolen parts as well as actual damages resulting from the collision?-Novus actus interveniens.

Headnotes

The plaintiff's vehicle was damaged as a result of an accident which was clearly caused by the negligence of the second defendant, servant of the first defendant. The plaintiff's driver then in charge of the vehicle, left it unattended on the high road. When he returned to it the next day with his master, the plaintiff herein, he found that several parts had been stolen from the vehicle, with the result that it was uneconomic to repair it. When asked why he did not arrange for a watchman to watch the vehicle in his absence he said he "was perplexed at the sight of the accident and rushed to inform the lorry owner." The plaintiff sued the defendants for G1,150 alleged to be the pre-accident value of the vehicle.

Judgement

ACTION for the pre-accident value of vehicle damaged in an accident.

JUDGMENT OF APALOO J.

By his writ issued out of this court on the 15th September, 1959, the plaintiff claims against the defendants the sum of G1,150 being damage caused to the plaintiff's lorry as a result of the negligence of the second defendant.

The plaintiff was the owner of a five-ton Austin lorry No. AS.7245. This lorry was used in transporting goods between Takoradi and Kumasi and Bibiani and Takoradi. At the times material to this action, the plaintiff employed Kofi Fofie as the driver of the said lorry. On the 13th December, 1957, the plaintiff's said driver was travelling between Bibiani and Takoradi with goods. When he was three miles out of Bibiani, be parked his lorry on his near side and alighted to have breakfast. It was about 9 a.m. Not long after he alighted, he heard a bang. This came from a timber truck which crashed into the plaintiff's stationary lorry from behind. It was a straight road and visibility was good. That timber truck belonged to the first defendant-company and was at the time of the accident in the charge of the second defendant, its driver and servant. The second defendant was clearly wanting in care. I find that the accident was due to his want of care. Indeed, when he was charged with careless driving as a result of the accident he confessed to his negligence at the district magistrate's court, Bibiani. In his statement of defence, the first defendant pleaded that the plaintiff was guilty of contributory negligence. No evidence was led in support of this. I find that the second defendant was solely to blame for the accident. In my judgment, both defendants are jointly and severally liable to the plaintiff for the loss suffered by him.

As a result of the impact the plaintiff's lorry was pushed out of the road into a ditch. Its hood was completely broken, the frame was damaged and so also were the mudguard, the tyre rod and the gearbox.

I am satisfied that when the accident thus occurred both the plaintiff's driver and the second defendant went together to the police station at Bibiani. The police arrived there later and took measurements and carried on other routine investigation. This done, the plaintiff's driver made a 50 mile journey to Kumasi where he reached about 5 p.m. An hour later, that is at 6 p.m., he informed the plaintiff of the accident. In the meantime the plaintiff's lorry remained unattended in the ditch. Both the plaintiff and his driver proceeded to the scene of accident the next morning. When they reached there they found the tyres and several other parts missing. It is plain they were stolen by an unknown person. In the circumstances, the plaintiff's lorry was for all practical purposes past repair.

The plaintiff seeks to recover from the defendants the value of the lorry which he said was G1,150. Although the defendants did not raise the point, I have myself given consideration to the question whether the [p.664] defendants are liable only for the actual damage to the lorry or also for the consequential loss due to the theft of parts of the lorry. The plaintiff's driver did not leave anyone to attend to the lorry and in a sense the defendants are not to blame for the theft of the parts. I have, however, come to the conclusion that I ought not to hold that any principle of actus novus interveniens broke the chain of causation and absolved the defendants from responsibility for the theft of the parts. According to Fofie, the plaintiff's driver, the only persons he had on the lorry at the time were his mate and a passenger who owned the goods in the lorry. Both were apparently in the lorry at the time of the accident. The evidence is that both suffered injuries and were rushed to the hospital. Fofie was alone and the prudent thing to do in the circumstances was to arrange for someone in the village where the accident occurred to keep an eye on the lorry. But Fofie said: "I was perplexed at the sight of the accident and rushed to inform the lorry owner." I am satisfied he was in a real dilemma and took a course, which turned out to be less than prudent. But in my judgment, the defendants by their negligence put him in this dilemma and he took a course that was not unreasonable. I reach the conclusion that the defendants are liable not only for the actual damage to the lorry but for the loss sustained by the plaintiff by the theft of the parts as well. In other words, the plaintiff is entitled to recover from the defendants the whole pre-accident value of his lorry.

According to the plaintiff, he bought the lorry new and used it for just under seven months when the accident occurred. He said he bought the chassis for G900 and spent extras in building the body so that the total cost to him of the lorry was G1,150. This means that he spent an extra G250 to build a body. This is much too high and I am satisfied it is an exaggeration. The plaintiff did not say what he spent this large amount for. In this respect I prefer the evidence of Mr. Portal who said it cost G60 to construct a body with canopy for a lorry such as the plaintiff's. I reckon, therefore, that the total cost to the plaintiff of the lorry was G960. The lorry was used for transport and must have suffered some depreciation from ordinary wear and tear. The plaintiff was unable to say what mileage the lorry clocked. Mr. Portal who saw the lorry in April, 1958, estimated its pre-accident value as G300 and admitted frankly that it was largely guesswork. That is much too conservative an estimate and I cannot accept it. Mr. Portal said the normal rate of depreciation is one-third of the value of a new lorry per annum. I think I ought to assume in this case that the plaintiff's lorry suffered normal depreciation. For the half-a-year that it was used, it depreciated to the extent of one-sixth of its value. That on my reckoning comes to G160. I reckon therefore that the pre-accident value of the plaintiff's lorry is G960 less G160. That is G800. For that sum the plaintiff ought to have judgment.

The second defendant has not been served and the action proceeded only against the first defendant-company. There will accordingly be judgment for the plaintiff against the first defendant-company for the sum of G800. There have been no less than eleven adjournments spread [p.665] over a period of two and half years. I award the plaintiff against the first defendant-company 85 guineas costs.

Decision

Judgment for plaintiff.

Plaintiff / Appellant

E. K. Wiredu

Defendant / Respondent

G. Davey

Referals

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