The Plaintiff being the sole administratrix of the estate of her deceased brother took out the writ claiming the following reliefs:

i. A declaration that the accident on 13^th of May, 2017 that resulted in the death of James Amponsah was as a result of the negligence of the 1^st Defendant

ii. An order for the Defendant to pay to the Plaintiff the sum of Gh¢800.00 per week for twenty (25) [sic] years beginning from the first day of the accident being income the deceased James Amponsah would have earned had it not been the accident resulting from the negligence of 1^st Defendant.

iii. An order for the Defendants to pay to the Plaintiff general damages for the loss of dependency children [sic] left behind by the deceased James Amponsah as a result of the accident.

iv. An order for the Defendants to pay to the Plaintiff the sum of Gh¢23,000.00 for hospital and funeral expenses incurred in the burial of James Amponsah (deceased).

v. Interest on items (ii), (iii) and (iv) above from the day of the accident to the day of final payment

vi. Cost of this action assessed at 10% on items (ii), (iii), (iv) and (v)

vii. Any other reliefs that the honourable court deems fit.

Plaintiff in her statement of claim that accompanied the writ claim to be the sister and sole administratrix of the estate of the James Amponsah (deceased) who died in a motor accident on the 13^th of May, 2017 in a vehicle driven by 1^st Defendant and owned by the 2^nd Defendant. To Plaintiff on the 13^th of May, 2017 the deceased was a passenger in a Mercedes Benz bus with registration number GG 2384-17 which was conveying the body of a deceased person from Accra to Yaw Kwei in the Ashanti Region. Whiles driving 1^st Defendant on reaching Mankrong near Suhum at about 11:30pm failed to exercise due caution and ran into the rear portion of an articulated truck with registration number AS 7460-10 that had broken down on the road and parked with office chairs. Plaintiff claim that the deceased died on the spot whiles the other passengers sustained various degrees of injuries. To Plaintiff the cause of the accident was as a result of the negligence of the 1^st Defendant leading to the accident as 1^st Defendant drove at top speed at that time of night and failed to apply its brakes. She further rely on the principle of res ipsa loquitor to hold 1^st Defendant for negligence and vicariously the 2^nd Defendant for the accident and the death of her brother. Plaintiff further notes that the deceased left behind two children who are of school going age whose upkeep and responsibility are now on her shoulders. And as the deceased was gainfully employed as a driver and a farmer earning not less than Gh¢800.00 she demands the cumulative payment of this amount taking into account his age of thirty five at the time of his death till the date the deceased would have retired at the age of sixty plus the expenses incurred in organizing the funeral and the hospital bills.

EVIDENCE

As Defendants failed to file appearance and a defence after the writ had been served by substituted service, interlocutory judgment in default of appearance was entered on behalf of the Plaintiff and opportunity afforded the Plaintiff to prove her claim. Towards this end the court ordered the Plaintiff and her witnesses to file their witness statements and documents. Accordingly besides Plaintiff, witness statements were filed by Paul Osei Kofi and Evelyn Nkansah. For documentary evidence Plaintiff tendered among others the letters of administration issued her to administer the estate as Ex ‘A’, the birth certificate of the two children left behind by the deceased as Ex ‘B’ and ‘B1’, school reports as Ex ‘D’, the membership card of the deceased as belonging to a drivers association as Ex ‘E’ series, the cost for the purchase of a coffin and other expenditure towards burial as Ex ‘F’ series and the Police accident report as Ex ‘G’.

EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW

To succeed in an action for negligence for the alleged tortious conduct of the 1^st defendant for which 2^nd Defendant is being made vicariously liable, the law is that plaintiff must clearly establish that, defendants owed a duty of care to the deceased who boarded the vehicle, two that there has been a breach of that duty, three, that there is causation, in other words that there is a direct link between the conduct of 1^st defendant and the death of the deceased and four that harm has been occasioned as a breach of the breach. Duty of care is said to be the primary requirement for a successful claim in negligence. For if there is no duty the failure to take reasonable care would not give rise to liability. See the following cases DONOGUE v STEVENSON [1932] AC 562; CHAPMAN v HEARSE [1961] 106 CLR 112; STRONG v WOOLWORTHS [2012] 285 ALR 420; WALLACE v KAM [2013] HCA 19 AUST. From the pleadings and the evidence before the court 1^st defendant ran the vehicle Benz Sprinter registration no GG 2384-17 into the rear portion of an articulated truck that had broken down at Mankrong near Suhum in the Eastern Region.

For running into a stationary vehicle, Plaintiff claim that 1^st defendant had been negligent in occasioning the accident that happened on the 13^th of May, 2017. Indeed in paragraph 9 of the statement of claim, Plaintiff particularize the negligence as follows:

i. The 1^st defendant driving on the main Kumasi-Accra highway at a speed which was both excessive and unsafe in the circumstances.

ii. The 1^st Defendant failing to drive, control and apply the brakes in a manner that any ordinarily diligent driver would have done in the circumstance

iii. 1^st Defendant failing to have due regard to other road users especially the articulated truck No AS 7460-10 driven by one Boateng Amoh Kwadwo

iv. The 1^st Defendant driving in a manner to avoid the accident and its resultant death to James Amponsah

v. The 1^st Defendant failing to drive with due care that is required when driving on a highway like the Accra-Kumasi highway

vi. The 1^st Defendant failing to apply his brakes in time or at all or so to steer or control the Mercedes Benz Sprinter Bus No GG 2384-17 to avoid the accident”.

There is a duty imposed on the driver of a motor vehicle to always drive the vehicle with due care and attention and anticipate all possible dangers on a highway more so when driving at the time of the night 11:30pm when visibility was poor. Ex ‘G’ being the Police accident report gives some credence to the claim of Plaintiff that 1^st defendant drove the vehicle in a negligent manner. For instance it states that the vehicle could not be tested by vehicle examiner because the body of the vehicle “was completely mangled”. It proceeded to give a long list of the damage caused to the vehicle that 1^st Defendnat drove. Pw1, Paul Osei Kofi testified as a witness who was in the vehicle at the time of the accident and lost one of his arms. As cited by learned counsel in his address in the case of ADOM v NTOW [1992-93] GBR 1603 PT 4 CA that:

“where a moving vehicle hit a stationary vehicle there is a presumption that the moving vehicle was to blame”.

I find as a fact that if 1^st defendant whiles driving in that time of night had exercised reasonable caution and observation as expected of a driver anticipating breakdown vehicles on the road, he would have avoided hitting the rear of the stationary vehicle. 1^st Defendant was accordingly negligent and 2^nd Defendant is vicariously liable for the negligence of the 1^st Defendant. Besides, Plaintiff indicated that it intends to rely on the principle of res ipsa loquitor. This principle when relied on allows a Plaintiff to succeed in an action for negligence even though such a Plaintiff may be unable to produce concrete evidence as to what caused the accident. By relying on this principle Plaintiff seems to be saying that the accident should not have occurred had it not been lack of due care and attention whiles 1^st Defendant was driving. In the normal course of steering a vehicle on the road a driver is supposed to maneuver the vehicle past stationary vehicle and driving into any stationary vehicle would give rise to a presumption that the driver was negligent unless such a driver was able to offer explanation as to what caused the incident. Throughout the trial, notwithstanding the opportunities afforded the Defendants to appear before the court, such offers were not heeded and in the absence of any explanation as to the cause of the accident, Plaintiff again succeeds on her reliance on res ipsa loquitor.

ASSESSMENT OF DAMAGES

Having succeeded in her claim for a declaration that Defendants were negligent, she claims a number of damages including an amount of Ghc800 per week to be paid for a period of twenty five years due to the negligence of the defendants. She also seeks payment of general damages for loss of dependency occasioned children and the family left behind by the deceased, payment of the funeral expenses as well as the mortuary cost and hospital expenses incurred. I cannot begin discussing the principles governing assessment of damages in matters of tortious liability resulting from fatal accident cases without first cautioning myself about the words of Apaloo J (as he then was) in the case of MENSAH v AMAKOM SAWMILL [1962] 1GLR 372 that “I confess that I have not found the assessment of damages anything but difficult”.

Indeed in the AMAKOM SAWMILL case supra the learned Judge began his assessment of the monies due the dependants by relying on the decision of Lord Wright in DAVIES v POWELL DUFFRYN ASSOC IATION COLLIERIES LTD [1942] 1 ALL ER 657 which states as follows:

“There is no question here of what may be called sentimental damage, bereavement or pain and suffering. It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years’ purchase. That sum, however, has to be taxed down by having due regard to the uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt.”

This rule which has become the backbone for assessment of damages in tort involving fatal accident claims has been summarised by Charlesworth on Negligence (3^rd) edition at 560 and 561 as follows:

“The manner of arriving at the damages is; (a) to ascertain the net income of the deceased available for the support of himself and his dependants; (b) (i) to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, whether for maintenance or pleasure, or (ii) what should amount to the same thing, to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants, and then; (c) to capitalize the difference between the sums (a) and (b) (i) or (b) (ii) (sometimes called the ‘lump sum’ or the ‘basic figure’) by multiplying it by a figure representing the proper ‘number of years’ purchase arrived at having regard to the deceased’s expectation of life, the probable duration of his earning capacity, the possibility of his earning capacity being increased or decreased in the future, the expectation of life of the dependants and the probable duration of the continuance of the deceased’s assistance to the dependants during their joint lives. From the sum thus ascertained must be deducted any pecuniary advantage received by the dependants in consequence of the death”

And in proceeding with this assignment I agree entirely with Holroyd Pearce LJ in DANIELS v JONES [1961] 1 WLR 1103 that some arithmetical calculations are involved in assessment like this but that a court should not allow arithmetical calculations to take the place of common sense. From the evidence, the deceased did not have any spouse at the time of his death but left behind two surviving issues being Mary Amponsah aged eleven and Michael Amponsah aged seven who are now in school. There is evidence that the deceased was a driver belonging to the Tiger Transport Services Association. According to Plaintiff in her paragraph 10 of her witness statement, deceased was earning Ghc600 a month. Pw1 also claim at paragraph 4 of his witness statement that deceased was earning Ghc600.00 a month. These two claims were not supported by any documentary evidence of the receipt of this Ghc600.00 a month.

Nonetheless, I would accept this figure as a monthly figure received from the deceased driving occupation at the end of the month in the absence of any evidence to the contrary. However, the claim of Pw1 that the deceased also used to farm and earned Ghc200.00 had no basis whatsoever as Ex ‘K’ showing Pw1 in a cassava farm is no evidence that deceased had a vegetable farm. Accordingly the claim in relief ii that deceased earned Ghc800.00 per week cannot be correct. I will find that deceased earned Ghc600.00 a month. The next consideration is how much out of the monthly income of deceased he expended on himself. The Plaintiff did not provide any guide to the court at all except how much the deceased supported the two children in their education.

I think in the absence of any useful guide as to how much deceased expended on himself on monthly basis, I will set aside an amount of Ghc350.00 every month as the money that the deceased expended personally for his own upkeep. This then will leave a figure of Ghc 250.00 every month to cater for the two children and the support for his mother. This Ghc250.00 then becomes what is termed as the datum figure which may be multiplied by the number of years the dependants would have received this amount which in the words of Lord Wright is called ‘number of years purchase’.

And in considering the number of years purchase a number of factors come to the fore. Among these are how long would the deceased have continued to live had it not been the unfortunate accident? In answering this it must be borne in mind that the Judge is not God to be omniscient and discern or perceive to know when the deceased would have died had it not been the accident and speculations and conjecture may not be far when computing the figure. There is also the question of how much working life the deceased had had it not been the death that occurred. He was thirty five years at the time of his death but may have worked till sixty or more. However, it has been the practice acceptable to use ten to fifteen years in the case of a healthy man. And I propose to use twelve years. This then will be GH¢250 a month multiplied by twelve months in a year which provide a figure of Ghc3, 000.00 per annum. This figure again is multiplied by 144 months being the twelve years. This provide a figure of GH¢432,000.00. That is not all as the next stage is strike the figure down by the uncertainties of life such as the deceased may not have been successful as driver, his vehicle may have been taken away from him by the vehicle owner, the vehicle may have broken down and may take a considerable time before it is put pack on the road. Or the vehicle may break down or the owner would have taken his vehicle back and it may take several years before the deceased get the opportunity to drive another vehicle.

There are other vagaries of life such as he may have been struck down by some sickness that may have made him bedridden and unable to work any longer, being just thirty five at the time of his death, he may have certainly got married or may have involved himself in multiple relationships and the greater part of the monies would have been channelled to the new bride or mistress to the detriment of the dependants here. Putting the gamut of all the factors I have just stated I think it fair to strike the figure down by 40% to arrive at an amount of Gh¢259,200 as assessed for the two minors of the deceased. I am not unmindful that the Plaintiff is claiming for the expenses made during the funeral as well as the cost of coffin.

This cannot be determined solely on the basis of the expenses incurred with the receipt without the court being provided with the monies realised during the funeral in terms of donations by well-wishers estimated to be 250, who did not just come to eat and go but might have made donations to defray the cost incurred. I think the figure of Gh¢259,200 awarded should be enough to cover for loss, if any after the donations made during the funeral organisation and I need not provide a different figure. The claim for interest on the amount, I find not to be deserving and dismiss same.

I award cost of GH¢8,000.00 in favour of Plaintiff.