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  • appeal
  • 1960-01-18
  • GLR 4-7
  • Print



Evidence?-Expert evidence to be treated with reserve?-Judge's duty to form his own opinion on the whole of the evidence.


The plaintiff insured his Morris Minibus with the defendants on December 31, 1956. On March 27, 1957 the vehicle was involved in an accident, and on the defendant's instructions it was repaired by C.F.A.O. Ltd., Accra, who on June 12, 1957 wrote to the plaintiff in the following terms:"At your request we confirm that we give you exactly the same guarantee as the guarantee given by Nuffield on new vehicle for the work we have done on your J2 Bus."On September 3, 1957 the vehicle was again involved in an accident, this time due to a defect in the steering mechanism. It was common ground that the cause of the defect in the steering mechanism was a disconnected ball-joint at the steering drop arm, due to a nut on it having gradually worked loose, the process having stripped the thread on the drop arm. The vehicle was again taken (on the defendants' instructions) to C.F.A.O. Ltd., Accra for repairs, but the defendants refused to be responsible for their completion, on the ground that the defect which had caused the accident and resulting damage was due to a failure on the plaintiff's part to maintain the vehicle in an efficient condition.On November 12, 1957 plaintiff issued a writ in the High Court against the defendants, claiming the full value of the car, viz. 855. In giving judgment for the defendants the learned judge (Ollennu, J.) referred to the expert evidence as follows:"In my opinion, that expert evidence, given by those two highly qualified automobile engineers, is not only scientifically sound but practically real. [p.5]I do not see how negligence in repairing a car would make the threads on the drop arm wear off so smoothly for the nut to fall off. Upon the evidence before me I have not the slightest doubt that the cause of the second accident was non-maintenance of the vehicle, resulting in the bolt on the steering falling off, and the vehicle running out of control."The plaintiff appealed to the Court of Appeal.


APPEAL from a judgment in favour of the defendants by Ollennu J. in the High Court, Accra on May 22, 1958. The plaintiff claimed that the defendants were liable to indemnify him under the terms of his insurance policy, for damage to his motor car, which had been involved in an accident.


Van Lare, J.A. delivered the judgment of the court:

The plaintiff in this case in effect claims to be indemnified by the defendant company under the terms of the insurance policy by which the defendant company were the insurers of the plaintiff's motor vehicle. When the motor vehicle in question was overturned as a result of a defect in the steering mechanism it was taken on the instructions of the defendant company to their agents, C.F.A.O. Motor Workshop, Accra, for repairs. The defendant company, however, later refused to complete the repairs upon which they had started, or to acknowledge any liability under the policy, on the ground that the defect which caused the accident and resulting damage was due to a failure on the part of the plaintiff to maintain the vehicle in efficient condition. The plaintiff, maintaining that he had properly maintained the vehicle in efficient condition, instituted this action.

He appears to quantify his damages as being the full insured value of the vehicle, that is 855, the full replacement value thereof. This clearly in our opinion cannot be the amount which the plaintiff can claim in law under a policy which indemnifies him against loss or damage, because it is clear on the evidence that the vehicle is part-worn, and had been involved in an earlier accident some six months before the accident which gave rise to the present claim. The damages as claimed fail to take into consideration the element of depreciation due to normal wear and tear.

The defence, as we have already said, was that under the exception contained in paragraph five of the conditions of the policy the defendant company's liability was excluded by reason of the plaintiff's failure to maintain the vehicle in efficient condition. To resist liability successfully the onus was on the defendant company to establish satisfactorily that the plaintiff did not in fact maintain the vehicle in efficient condition.

On the evidence as a whole we are of the opinion that the defendant company cannot be deemed to have discharged their burden satisfactorily. The facts proved (and it is common ground) that the cause of the accident [p.6] was a disconnected ball-joint at the steering drop arm, due to a nut on it having gradually worked loose, and in the process having stripped the thread on the drop arm, thereby putting the vehicle out of control. This is, in fact, what the learned trial judge found, and this finding has only to be looked at upon the face of it to justify the view that the defect in the steering mechanism resulted from gradual wear and tear upon the nut-and-ball joint in question. In fact, the two expert witnesses called by the defendant company, in an attempt to discharge the burden of proof that rested upon them, stated that the nut had been caused to come off gradually over a large number of miles and had made the steering drop arm where the nut fits threadbare. Each of these witnesses, however, expressed the opinion that this gradual deterioration in the steering mechanism was the result of non-maintenance of the vehicle.

The learned trial judge appears to have regarded this opinion as decisive, and to have relinquished his responsibility to form an opinion of his own, notwithstanding that there was evidence before him on behalf of the plaintiff, not only that the vehicle had in fact been sent for maintenance to the C.F.A.O. Motor Workshop and Texaco twice during the three months immediately preceding the accident, but also that, in the opinion of a motor mechanic who is a Government Certifying and Examining Officer, the defect in question could not have resulted from non-maintenance.

We think that the learned judge attached too much importance to the opinion of the two other expert witnesses. Admittedly they were qualified engineers, but they cannot detract by an ex cathedra opinion from the weight of the circumstance that the physical condition of the steering mechanism disclosed by the evidence was, on the face of it, due to wear and tear.

It may be useful in these circumstances to refer to what appears in Taylor on Evidence (12th Ed.), Vol. 1, para. 58, at p.59, as follows:

"Perhaps the testimony which least deserves credit with a jury is that of skilled witnesses. These witnesses are usually required to speak, not to facts, but to opinions; and when this is the case, it is often quite surprising to see with what facility, and to what an extent, their views can be made to correspond with the wishes or the interests of the parties who call them. They do not, indeed, wilfully misrepresent what they think, but their judgments become so warped by regarding the subject in one point of view, that, even when conscientiously disposed, they are incapable of forming an independent opinion. Being zealous partisans, their Belief becomes synonymous with Faith as defined by the Apostle, for it too often is but 'the substance of things hoped for, the evidence of things not seen.' To adopt the language of Lord Campbell, 'skilled witnesses come with such a bias on their minds to support the cause in which they are embarked that hardly any weight should be given to their evidence'."

We are of opinion that the learned trial judge erred when, accepting without question the opinion of the experts, he dismissed the plaintiff?'s [p.7] claim to be indemnified, and entered judgment for the defendant company.

This, however, does not conclude the matter. No evidence was adduced by the plaintiff (nor was any reference whatsoever made) to the issue of the quantum of the plaintiff?'s damages. The learned judge's attention was quite understandably focused solely upon the issue of liability under the policy. As we are of opinion that judgment ought to have been entered for the plaintiff, and as the issue as to damages has not been tried, we have no alternative but to remit the case to the court below, with a direction to enquire as to the measure in which the plaintiff should be indemnified. The appeal is therefore allowed, on the basis that the defendant company is liable to indemnify the plaintiff in the sum to be found upon an enquiry by the court below. The case is accordingly remitted to the court below for quantum of damages to be determined.


<P>Appeal allowed: case remitted to High Court to determine quantum of damages.</P>

Plaintiff / Appellant


Defendant / Respondent



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