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BORTETEY v. ACHINIVU AND OTHERS


  • New
  • 1960-03-31
  • HIGH COURT
  • GLR 73-75
  • Print

MILLS-ODOI, J.


Summary

Negligence?-Collision on land?-Measure of damages?-Claim for loss of future profits of taxicab.

Headnotes

The plaintiff?'s taxicab and another vehicle were in collision, owing to the negligence of the first defendant, driver of the latter. The taxicab was so severely damaged that it became a write-off, and plaintiff sued the driver and the joint-owners of the vehicle at fault. He claimed inter alia the sum of G204 in respect of loss of his taxicab's earnings from the date of the accident to the date of writ, and mesne profits thereafter up to date of judgment. The present report is concerned only with that part of the judgment dealing with those heads of claim.

Judgement

ACTION for damages for negligence. The facts sufficiently appear from the headnote.

Counsel for plaintiff submits that, because there is a total loss of the taxicab, his client is entitled to recover from the defendants both its market value before the date of the accident, and also a further sum in respect of the loss of future earnings. In support of this [p.74] submission he cited Gibb on Collision on Land (5th edition) page 213. The passage referred to by counsel for plaintiff at page 213 of Gibb does not support his contention that his client is entitled to recover in respect of the loss of earnings or mesne profits. According to that page,

?"where there is a total loss of a ship there may be recovered, over and above her value at the time of loss, the profit lost under a charterparty then current, less the expenses probably to be incurred in earning that profit."

This is to be understood to mean that in addition to the market value of the chattel at the time of the accident, the owner is entitled to recover any consequential loss suffered by him, that is to say, the loss of profits which would have accrued from some specified use to which the chattel would have been put (The Racine [1906] P.273) and also special damage suffered by him, as (in this case) the expenses of towing the chattel. It is interesting to note that on the previous page Gibb states, under the heading "Damage to Chattel", "where there is total loss or destruction, the measure of damages is the market value of the chattel before the accident, less the value of any salvage".

The passage referred to by counsel for the plaintiff from Gibb and Millner's Trial of Motor Car Accident Cases (3rd edition) p. 286, section 285, does not apply to the issue involved in this case. That passage reads as follows:?-

"The condition of the car after the collision shows the extent of the damage. If it is beyond repair, totally destroyed or rendered worthless, the plaintiff may recover in full its market value prior to the accident. He may also be entitled to recover for loss of profits caused by the destruction of the vehicle".

The "loss of profits" referred to in that passage does not mean loss of future profits or mesne profits, but profits which plaintiff would have earned from a contract which was subsisting at the date of the collision. The passage refers to the case of The Kate ([1899] P.165) in which the plaintiffs were the owners of the Norwegian barque Chrysolite, and the defendants were the owners of the Austrian steamship Kate. The question was as to the measure of damages in the case of the total loss, by collision, of a vessel on her way, in ballast, to load under charter. It was held that the proper measure of damages was the value of the vessel at the end of the voyage, plus the profits lost under the charterparty. In his judgment Sir Francis Jeune enunciated the following principle:

?"The general principle which governs the assessment of damages is of course restitutio in integrum qualified by the condition that the damage sought to be recovered must not be too remote?-that is to say, must be the natural consequence, and not merely a consequence traceable in fact to the wrongful act. It may be nothing more than a question of statement of figures whether the owner of a vessel, lost when under a profitable charterparty, is recouped this loss by receiving her value at the conclusion of her voyage plus the profits of her charterparty, or by receiving her value at the time of collision, [p.75] such value being enhanced by the fact that the ship at the time was under a profitable charterparty. But, unless in one or other of these ways the owner gets the benefit of the profitable engagement of his ship, he obviously fails to realise a restitutio in integrum."

In the cases of The City of Rome ((1887) 8 Asp.M.C. (N.S) 542) reported in the Shipping Gazette of May 12, 1887, the owner of a fishing vessel sunk in a collision claimed for the value of the fish which would have been caught between the date of the collision and the termination of the fishing season. The Registrar held that the loss was too remote and speculative to be taken into consideration, and Sir James Hannen in upholding that view said.

"I consider that the matter is concluded by authority; that when there is a total loss, the question of the value of things lost at the time is to be taken into account without reference to what a vessel would have earned if she had gone on a longer or a shorter voyage than the one on which she was engaged at the time".

The case of African Continental Bank Ltd. v. Oladapo (13 W.A.C.A. 285) does not help the plaintiff.

Charlesworth on Negligence (3rd edition) at page 579, paragraph 937, states as follows:

"Where the chattel is completely destroyed or so damaged as not to be worth repairing, the measure of damages is the value of the chattel together with any consequential loss following on the destruction of the chattel. If the chattel is profit-earning, its value will take into account the profits which it was likely to earn in the future, and so no additional damages can be recovered for loss of future profits, except such profits as were being earned when the chattel was destroyed" (The Llanover [1947] P.80).

I accept the submission of counsel for defendants that the plaintiff is not entitled to loss of profits or to mesne profits in this case.

Decision

<P>Judgment for plaintiff for part of his claim.</P>

Plaintiff / Appellant

Francois

Defendant / Respondent

Amoo-Lamptey for Anterkyi

Referals

(1) The Racine [1906]  P.273.

(2) The Kate [1899] P.165.

(3) The City of Rome (1887) 8 Asp.  M.C. (N.S.) 542.

(4) African Continental Bank Ltd. v. Oladapo 13 W.A.C.A. 285.

(5) The Llanover [1947] P.80.

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