In a writ issued out of the Registry of this Court, the 1^st Plaintiff sued for the following reliefs:

(a) Damages for loss of earnings

(b) Damages for past and future pains and suffering

(c) Damages for past and future medical charges or costs

(d) Past drugs charges of GH¢20,000.00

(e) Damages for emotional distress or trauma

(f) Damages for travelling and transport to receive medical treatment or house call by doctors

(g) Punitive damages for their uncaring and reprehensible conduct

(h) Costs and lawyers fee at the approved Ghana Bar Association scales of fees

The 2^nd Plaintiff also claimed against the Defendant,

(a) Damages for the psychological or emotional trauma suffered and the anxiety being experienced.

(b) GH¢12, 000.00 for past drugs purchased and general damages for future treatment and drugs.

The 1^st Plaintiff is a Consultant Engineer and the Executive Chairman of Rockshell International Ltd.

The 2^nd Plaintiff is an Executive Secretary to the 1^st Plaintiff. It is their case that on 5^th October 2014, they as fee paying passengers boarded the Defendant’s aircraft at the Kotoka International Airport in Accra to travel to Malabo in Equatorial Guinea for a discussion with the President of Equatorial Guinea involving over $400 billion.

The Plaintiffs stated further that as 1^st Plaintiff was about to assume his seat on the aircraft, a passenger also on board the aircraft opened the overhead carry-on luggage compartment which hit the 1^st Plaintiff in the face causing bleeding from his left eye.

They averred that the cabin crew failed to render any first aid and only provided the Plaintiffs with cotton wool and gentian violet. As a result, it was left up to the 2^nd Plaintiff to staunch the wound to prevent bleeding. The Defendant’s staff did not offer any assistance to the Plaintiffs. The 1^st Plaintiff according to the pleadings was later referred to a specialist hospital in Malabo at the instance of the President of the Republic of Equatorial Guinea.

The 2^nd Plaintiff averred that she had suffered emotional trauma as she had to administer first aid to the 1^st Plaintiff without any protective gear such as gloves. She stated that due to that she had lost weight and has had sleepless nights due to her apprehension of the possibility of contracting HIV/AIDS and/or Hepatitis B or C viruses.

The 1^st Plaintiff stated that he still receives treatment at the hospital as he is still suffering from pains in his eye. He averred that the injury to his eye prevented him from conducting the business for which he made the journey to Equatorial Guinea.

The 2^nd Plaintiff stated also that she had received treatment with antibiotics but still suffered from panic and anxiety attacks and continues to attend clinic fortnightly.

They thus claimed as per the reliefs endorsed on their writ.

The Defendant failed to enter appearance to the writ although it was served on them on 15^th May 2015. The Plaintiffs thus successfully applied for and were granted Interlocutory Judgment in Default of Appearance. Plaintiffs were granted judgment on the sum of GH¢20,000.00 and costs of GH¢2,000.00. They were to lead evidence on the rest of the reliefs for assessment of damages. Copies of the judgment and hearing notices were served on the Defendant on 4^th September 2015 to attend court on 21^st October 2015. The matter was subsequently adjourned to 4^th and 18^th November 2015 respectively. The Defendant neither put in an appearance nor caused a defence to be filed on its behalf.

On 18^th November 2015, Plaintiffs together with their Counsel were in court.

In Ankumah v. City Investment Co. Ltd (2007/2008) SCGLR 1064 it was held that a court was entitled to give judgment if a party failed to appear after he had been given notice of the proceedings. For then it would be justifiable to assume that he did not wish to be heard. In the case of Re: West Coast Dyeing and Another (1987/88) 2 GLR 561, the court held that when a party refused to attend the trial and to testify, the court would be entitled to proceed with the trial and to determine the case on the basis of evidence adduced.

It is further provided for in Order 36 r 1 (2) of the High Court Civil Procedure Rules (2004) CI 47 thus:

1. (2) Where an action is called for trial and a party fails to attend, the trial Judge may

 (a) where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim;

The court therefore proceeded to hear evidence on the Plaintiffs’ claim in spite of the Defendant’s refusal and/or failure to attend the hearing.

In view of this, the Plaintiffs filed their respective witness statements in compliance with the Civil Procedure Amendment Rules (2014) CI 87.

The 1^st Plaintiff in his witness statement deposed that he was an International Engineering Consultant. He was the Delta Group of Companies governmental relations consultant with the duty to obtain a contract with the Government of Equatorial Guinea. In furtherance of this contract, he travelled to meet with the President of Equatorial Guinea. It was on the journey to meet the President that the injury was caused to the 1^st Plaintiff by a fellow passenger who had opened the overhead compartment whilst on board the Defendant’s aircraft.

The Plaintiffs tendered exhibits A, B and C in evidence being documentation about the project the Plaintiff was to have undertaken in Equatorial Guinea. It involves the building of a 75 megawatt system. Exhibit C is an agreement between the Plaintiff and Delta Group signed in March 2014. This agreement was to enable the 1^st Plaintiff use his expertise to obtain the contracts in Equatorial Guinea for a plant to be installed in their territorial waters for the generation of power and water.

Exhibit D is an e-ticket issued from Bindu Travels and Tours in Accra. It was a Ceiba Intercontinental Airline round trip ticket from Accra, Kotoka International to Malabo International departing on 5^th October 2014 and returning on 12^th October 2014.

Exhibit E series show the passports and details of those who made the trip to Equatorial Guinea and these included both Plaintiffs.

Exhibit F is a contract signed between Messrs Delta Group Ltd and the Republic of Equatorial Guinea. It is dated 27^th April 2014

The Exhibit G series are pictures of 1^st Plaintiff with injury to his eye.

Exhibit H is a medical report on the 1^st Plaintiff’s injuries from the Ophthalmology Department of La

Paz Centro Medico. The report is in 3 stages describing the 1^st Plaintiff’s condition before surgery, during surgery and after surgery.

The 1^st Plaintiff continued with his treatment in Ghana and a medical report indicating this was also tendered in evidence. It is apparent from both reports that the injury to 1^st Plaintiff’s eye was as a result of his being hit in the eye by the overhead baggage compartment located in the Defendant’s aircraft. Exhibit H states in its concluding paragraph:

Dr. Tei has permanently lost the vision in the left eye which now has no perception of light vision. He also has cosmetic disfigurement of the left eye. The left eye is likely to be inflamed from time to time and will require long term hospital attendance and medication. In the long term, the left eye is likely to shrink and become phthisical.

The 2^nd Plaintiff in her witness statement stated she gave the 1^st Plaintiff first aid.This she did without hand gloves. She said she had to keep mopping the 1^st Plaintiffs eye which was bleeding. Upon reflecting on what happened she became apprehensive on realizing the risk she ran of contracting HIV or Hepatitis due to being exposed to the 1^st Plaintiff’s blood. She sought medical treatment and has continued to be monitored by a medical team. She told the court that since it takes about 5 years for HIV to show, she has been having sleepless nights.

The Plaintiffs’ Counsel in his address to the court argued that due to 1^st Plaintiff’s injury, he could not return to Equatorial Guinea to sign the contract as he was mandated to do on behalf of Delta Group Ltd. In view of this, it was submitted on 1^st Plaintiff’s behalf that he was entitled to payments under clause 1 of the agreement of $25 million, under clause 3 of $100 million and under clause 4 of 30% of gross profits or earnings from the project.

Counsel contended that since there was an accident leading to injury, the 1^st Plaintiff was entitled to claim for damages for loss of earnings.

The following heads of damages were claimed:

(a) Pain                                                                     $550,000.00

(b) Suffering                                                               $2 million

(c) Disfigurement                                                       $2 million

(d) Emotional or psychological trauma                       $1 million

(e) Permanent disability in the eye                             $14 million

(f)  Medical drug charges (past)         }          

(g) Medical and drug charges (future)            }           £176,265

(h) Attendant Charges                                    GH¢956,250.00

(i)  Loss of Earnings                                                    $702,000,168.75

Counsel referred to the Montreal Convention especially Articles 17 and 21 which deal with the Liability of the Carrier and Extent of Compensation in case of Death or injury of Passengers and Compensation in case of Death and injury of Passengers. He also referred the court to the cases of Royal Dutch Airlines (KLM) v. Farmex (1989/90) 2 GLR 623 and Delmas Agency (Ghana) Ltd v. Food Distributors International (2007/2008) SCGLR 748.

The evidence available to this court indicates that the Plaintiffs were fee paying passengers aboard the Defendant’s airline. This means there was a contract of carriage between the parties. It is provided for in Articles 17 and 21 of the Montreal Convention For the Unification of Certain Rules For International Carriage (1999) thus:

Article 17 – Death and Injury of Passengers – Damage to Baggage

The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Article 22 – Compensation in case of Death or injury of Passengers

1. For damages arising under paragraph 1 of Article 17 not exceeding 100, 0000 Special Drawing Rights for each passenger the carrier shall not be able to exclude or limit its liability.

2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100,000 Special Drawing Rights if the carrier proves that

(a) Such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents, or

(b) Such damage was solely due to the negligence or other wrongful act or omission of a third party.

Since the Defendant failed and/or refused to be part of the trial despite the hearing notices served on them, the court would be entitled to determine the case on the basis of evidence adduced.

The Plaintiffs has sued for damages under several heads. Are they entitled to these amounts claimed?

From the pleadings and evidence before this court, there is no disputing that there was a contract between the parties. This contract was for the Carriage of Persons from Accra, Ghana to Malabo,

Equatorial Guinea.  Injury was caused to the 1^st Plaintiff whilst on board the Defendant’s aircraft. But was the injury caused by the Defendant’s negligence for which the Plaintiff could successfully sue for damages? The 1^st Plaintiff has made a claim for various sums of money classified under various heads of damages.

The 1^st Plaintiff at p. 2 of his witness statement at paragraph 3 described the incident leading up to the injury in the following words:

Incidentally, prior to meeting H. E. the 1^st Plaintiff and the two others had bought tickets for the travel to Equatorial Guinea from the Defendant Company. And on 5^th October 2014 whilst on board the Defendant’s aircraft at the Kotoka International Airport tarmac to travel to Malabo in Equatorial Guinea, another passenger opened the overhead cabin luggage compartment which caused injury to 1^st Plaintiff who started bleeding from the left eye.

How was the injury caused? Did the injury take place on board the aircraft or in the course of any of the operations of embarking or disembarking? The injury took place on board the aircraft. However by Article 21, the carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100,000 Special Drawing Rights if the carrier proves that such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents, or such damage was solely due to the negligence or other wrongful act or omission of a third party.

In the case of Hazel v. British Transport Commission (1958) 1 WLR 169 @ 171 the court had this to say:

“The basic rule is that negligence consists in doing something which a reasonable man would not have done in that situation or omitting to do something which a reasonable man would have done in that situation.”

So who caused injury to the 1^st Plaintiff? Was it the Defendant or anybody who could be described as the Defendant’s agent? In his own words, the 1^st Plaintiff had informed the court that it was a fellow passenger who caused injury to his eye. The Plaintiff did not say that the fellow passenger was the Defendant’s agent.

Did the Plaintiffs have a cause of action against the Defendant? The term cause of action was defined in Harlley v. Ejura Farms (Ghana) Ltd (1977) 2 GLR 179 @ 194 thus:

I think it is necessary to get a clear understanding of what a cause of action means. Simply stated, it is the entire set or combination of facts that gives rise to an enforceable claim: see Spokesman (Publications) Ltd. v. Attorney-General [1974] 1 G.L.R. 88 at pp. 91 and 92, C.A. (full bench). In Letang v. Cooper [1965] 1 Q.B. 232, C.A. Diplock L.J. (as he then was) gave a very useful definition of a "cause of action." He said at pp. 242-243: "A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person."

In the court’s view, the Plaintiffs did not have a cause of action against the Defendant. The 1^st Plaintiff’s injuries though caused whilst he was on board the Defendant’s aircraft were not caused through any act of commission or omission of the Defendant. They were caused by the actions of a 3^rd party i.e. another passenger. As a result, the Defendant could not be held liable for the wrongful act or omission of its passenger who was a third party.

The Convention also refuses to pay any compensation for psychiatric injury or damage unless inextricably linked to physical injury. Purely psychiatric injury is not eligible for compensation. See Article 17 of the Convention. Similarly the Defendant could not be held liable for claims made by the 2^nd Plaintiff.

The burden of persuasion and the obligation to adduce evidence are defined in Sections 10(1) and 11(1) of the Evidence Act, 1975 (NRCD 323).

Section 10(1)

For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.

Section 11(1)

For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

In Fosua & Adu-Poku v. Dufie (deceased) and Adu-Poku Mensah (2009) SCGLR 316, the court held that Section 11(4) of the Evidence Act, 1975 NRCD 323 put the obligation in civil proceedings of producing evidence on a party to produce sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.

It was incumbent on the Plaintiffs to prove their case on a preponderance of probabilities.

And as Adade JSC put it succinctly in Nartey v. Mechanical Lloyd Assembly Plant Ltd (1987/88) 2

GLR 314 at 344:

“A person who comes to court no matter what the claim is must be able to make a case for the court to consider otherwise he fails.”

This is an unfortunate case in view of the fact that the 1^st Plaintiff has lost the vision in his right eye has suffered disfigurement in an incident on board the Defendant’s aircraft and has expended money in finding a cure for his injuries. However in the absence a finding which proves the Defendant’s negligence, the court cannot make a determination in his favour.

In reviewing the evidence, it is apparent that the Plaintiffs’ injury was not caused by the Defendant or anyone claiming through it. The Plaintiffs’ claims fail and are hereby dismissed.

(SGD)

JENNIFER A. DODOO (MRS)

JUSTICE OF THE HIGH COURT