IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
FRANCIS KONTOH - (Plaintiff)
J. K. AMPONG & ANOR - (Defendant)
DATE: 21ST JANUARY, 2015
SUIT NO: OCC/54/12
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
The Plaintiff was on board an articulator truck with registration number AS 5338 Z which was conveying dried cocoa beans from Juaboso to Kumasi and it collided head on with a Mercedes Benz bus with registration number GT 4525 B driven by the 2nd Defendant and owned by the 1st Defendant. These facts are undisputed.
As a result of this accident, the Plaintiff claims General and Special damages jointly and severally against the Defendants for the injuries he sustained. The Defendants deny being negligent.
Three issues were set down for this trial, namely,
1. Whether or not on the 8th January, 2011, the 2nd Defendant negligently drove, manipulated and controlled the 1st Defendant’s vehicle with Registration number GT 4525 B?
2. Whether or not the Plaintiff has suffered various degrees of injuries as a result of the accident which occurred on 8th January, 2011?
3. Whether or not the Plaintiff has been deformed and incapacitated as a result of the accident?
To succeed, a party alleging negligence must establish that he was owed a duty of care by his opponent and that duty was breached as a result of which he has suffered an injury or damage. In Edward Nasser v McVroom (1996-97) SCGLR 479, the Supreme Court, per Acquah JSC (as he then was) stated:
“It is trite learning that the first step in proving negligence in tort is to establish a duty of care owed by the Defendant towards the Plaintiff, which duty must arise from the nature of the relationship between them. A breach of this duty by the Defendant must be established, and finally there must be damage suffered by the Plaintiff as a result of this breach.” See also Donoghue v Stevenson (1932) AC 562 where Lord Atkin propounded the neighbour test.
In Nasser’s case referred to, supra, Acquah JSC after reviewing a chain of English authorities on the subject matter came to this conclusion:
“ It is our considered opinion, however that , once the categories of negligence are not closed, although a relationship of proximity must exist before a duty of care can arise, the duty must depend on all the circumstances of the case and it must be considered whether it is just and reasonable to impose a duty.”
The opinion of Atuguba JSC in the same case is also worthy of note. His Lordship stated with approval the pronouncement made by Abban J (as he then was) in Damalie v Kwadzie (1974) 1 GLR
In Damalie’s case, His Lordship Abban relied on the principle laid down by Lord Romer in Glasgow Corporation v Muir ( 1943) AC 448 HL, namely that:
“The appellants can only be fixed with liability if it can be shown that there materialized a risk that ought to have been within the appellants contemplation”
On the facts of the case before me, the Plaintiff bears the onus of proof on this issue. See sections 11(4) and 12 of the Evidence Act, 1975 NRCD 323. The law on proof in civil cases is well settled. A party who makes positive assertions in his pleadings which are denied by his opponent assumes the burden of proof on those facts. This principle was expounded by Kpegah JA (as he then was) in the case of Zambrama v Segbedzi ( 1991) 2 GLR 221 where he critically analyzed the question of burden of proof in civil suits as stated in Majolagbi v Larbi & Ors ( 1959) GLR 190. In Zambrama’s case, his Lordship noted that:
“The correct proposition is that, a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree or nature of that burden.”
The principle of proof in civil suits as quoted above has since been applied in more recent cases such as Continental Plastics v IMC Technique GMBH (2009) SCGLR 298 at 307 per Georgina Woode CJ and Yaa Kwesi v Arhin Davies (2007-2008) SCGLR 50. In the event of failure to adduce any convincing and credible evidence, the proponent of those facts loses on that issue.
Having assumed that burden, the Plaintiff is required to give credible and convincing evidence to support his assertion. The Plaintiff’s testimony on the issue of negligence was concise and it is as follows:
“I know Atwima Mim. That is where the accident occurred. On our way to Kumasi and when we got to Atwima Mim, we saw that vehicle with registration number GT 4425 B had veered off from its lane into our lane. The driver was not careful. I sustained injuries when the accident happened… The Benz bus veered off its lane into our lane and collided with our truck. I was sent to Komfo Anokye hospital.”
In further support of the above, the Plaintiff tendered in evidence a Police Accident Report (exhibit D). In the report, the police indicated that at about 10.00am on 08/01/2011, the driver in charge of Mercedes Benz Bus with Registration number GT 4525 B with passengers on board from Kumasi to Ntobroso, veered off its lane at a portion of the road at Atwima Mim on the Abuakwa Nkawie motor road. From the facts stated in the report, the said driver lost control of the steering wheel and the vehicle veered into the offside lane and run into an oncoming Leyland Articulator Truck with registration number As 5338 Z loaded with 600 bags of dried cocoa beans from Juaboso towards Kumasi. The Mercedes Benz bus later fell into a nearby gutter trapping one Abena Anima, a passenger on the bus, dead. The report further indicated that some of the other passengers on board the Mercedes Benz bus and one Francis Kontoh who was on board the articulator truck sustained various degrees of injury. In the process, both vehicles were damaged. The Plaintiff also said in his evidence that he did not see any tipper truck at the time of the accident. He did not call any witness in respect of this issue.
With the above evidence, the burden of persuasion shifted onto the 2nd defendant to establish contrary facts. On his part, he testified that on reaching a portion of the road between Mim and Sepease, a tipper truck which was ahead of him stopped abruptly. To avoid running into the rear of the tipper truck which would have killed all the occupants in his bus, the 2nd defendant said he diverted his vehicle into another lane. Apparently, this was the lane the Plaintiff’s vehicle was using but due to the size of the tipper truck’s bucket, the 2nd Defendant said he was unable to see any oncoming vehicle. In the process, his vehicle collided with the oncoming DAF Leyland Truck which hit his vehicle and some of the passengers were injured. In the 2nd Defendant’s own words, he was charged for court, found guilty and sentenced to a fine of GHS 2,000.00. He said he had a driver’s mate at the time of the accident. Yet, all efforts to produce the said mate to corroborate his testimony proved futile.
In cross-examination however, he denied being arraigned before any court and insisted that he paid the fine to the police at the Abuakwa police station. When counsel suggested to the 2nd Defendant that he was driving too closely to the alleged vehicle ahead of him, he answered that there was a distance of about 10 meters between the two vehicles. Yet, the 2nd defendant said the tipper truck’s bucket blocked his view so he was unable to see what was oncoming. The following part of the cross-examination is very important to the determination of the issue under consideration:
Q. if you say you say you did not see the Plaintiff’s vehicle, it means you were too close to the tipper truck?
Q. As a good driver, you ought to have left sufficient distance when you were following the tipper truck?
A. That is true
Q. I am putting it to you that you were the cause of the accident?
For the 2nd Defendant, counsel submitted that he did his best in the circumstances of this case to save the lives of 23 passengers. He further submitted that the 2nd Defendant rather averted a catastrophe and was not negligent. Concluding, counsel referred to the Police accident report and indicated that the police did not charge the 2nd defendant with any offence because he was not negligent. He invited the court to hold that in the peculiar and special circumstances of this case, the 2nd Defendant was not negligent.
Counsel for the Plaintiff took a contrary view. He submitted that the Defendant’s intentionally drove into the Plaintiff’s vehicle’s lane resulting in the accident. He therefore argued that the 2nd Defendant owed a duty of care to the Plaintiff whilst driving on the high way and he broke that duty by failing to come up to a standard of care required of a reasonable man.
On the totality of the evidence on the issue of negligence, it is obvious that the 2nd Defendant, as a road user, owed a duty of care to other road users including the Plaintiff herein. In other words, he ought to have had other road users in his contemplation in whatever decision he took on the road. Thus, when he decided to swerve into another lane to avoid an accident which would have killed 23 people, he ought to have contemplated that a vehicle could be approaching from the opposite direction. Now, i turn to his evidence on the tipper truck which was ahead of him. Apart from the evidence of both parties, no witness was called to corroborate this fact. It must be noted that the police accident report made no reference to a tipper truck ahead of the 2nd Defendant’s vehicle. The 2nd Defendant also said nobody saw the tipper truck. Truly, the Plaintiff also said he did not see any tipper truck. Two scenarios can be considered: first, the issue on the tipper truck could be an afterthought and a figment of the 2nd Defendant’s own imagination as nobody else apart from him saw the said tipper truck. Second, if indeed there was a tipper truck ahead of the 2nd Defendant’s vehicle, the reasonable inference which can be made based on his answers in cross-examination is that he was following the said truck too closely and at an unreasonable speed. The evidence shows that the 2nd Defendant has about 25 years driving experience and he ought to have known that following a vehicle too closely on the high way could result in an accident should the vehicle ahead come to an abrupt stop. In both situations, the 2nd Defendant’s action fell short of what is expected of a competent and careful driver. A prudent driver would drive at a speed which enabled him to have effective control over the movement of his vehicle. This is what is expected of any reasonable driver. That way, he would have avoided running into the rear side of the said tipper truck.
The police accident report (exhibit D) was not challenged by the 2nd Defendant. Having admitted the contents of the said report, it can be inferred that he drove without due care and thereby lost control of the steering wheel, veered off into the lane of the Plaintiff’s vehicle resulting in the accident.
The 2nd Defendant has demonstrated through the inconsistencies in his own testimony that he is not worthy of credit. On one hand, he categorically said he was arraigned before court, convicted and sentenced to a fine of GH¢2,000.00. He then changes the story in cross-examination by saying that he never went to court but his uncle paid the money to the police on his behalf at the police station.
When counsel suggested to him that he was arraigned before the Nkawie Circuit Court, the 2nd Defendant could not positively discredit that fact. Having taken into consideration the provisions of
Section 80(2) of NRCD 323, I find that these inconsistencies go against the credibility of the 2nd Defendant. He has not has not been candid.
On the totality of the evidence before me on the issue of negligence, I accept the evidence of the
Plaintiff that there was no tipper truck ahead of the 2nd Defendant’s vehicle and that the 2nd Defendant lost control of his steering wheel, veered into the lane of the Plaintiff’s vehicle and thereby breached the duty of care he owed the Plaintiff as a road user. Even if there was a truck ahead of the 2nd Defendant’s vehicle, his action, as has been demonstrated in this judgment, would have amounted to negligence. In the circumstances of this case, the 2nd Defendant cannot escape liability whether or not a vehicle ahead of him stopped abruptly. As was held in Ghana Highway Authority v Mensah (1999-2000) 2 GLR 237 (holding 1), which counsel for the Plaintiff also relied on:
“Negligence as a tort occurred when the defendant (1) owed a duty of care to the Plaintiff; (ii) broke that duty by failing to come up to the standard required by law; and (iii) thereby caused legally recognized damage to the Plaintiff.”
All these have been established by the Plaintiff and I could not have arrived at a different conclusion.
INJURY RESULTING FROM THE ACCIDENT/PAIN & SUFFERING
The second issue for determination falls under this general topic. Simply put, the Plaintiff must establish that he suffered an injury or injuries directly from the accident and that he continues to suffer a degree of pain by reason thereof.
The Plaintiff was very certain about the injuries he suffered at the time of the accident. He told the court that he was admitted at the Komfo Anokye Hospital on the day of the accident, i.e. 08/01/2011, and remained there for seven (7) months before he was discharged on grounds of shortage of beds. Thereafter, he was seen as an out- patient on daily basis. Over the period, the Plaintiff said he underwent five surgeries on his right foot. This was because the outcome of the first surgery was not good. His leg had turned green with the bone exposed. He had external fixation in situ and the hardware was removed through another procedure. According to him, each time he under- went surgery, a catheter was inserted in his penis and whenever the catheter was removed, it came out with some flesh and he was unable to urinate. Even though medication was administered, the Plaintiff said he has difficult and painful urination.
Continuing, the Plaintiff said all these surgeries were done under spinal anesthesia. In spite of all these painful procedures, the Plaintiff testified that he is unable to walk unaided. His right ankle and toe have become stiff. In cross-examination, he pitifully indicated that the frequent catheterization has rendered his male organ dysfunctional and that he has a wife and seven children. The implication of this is obvious to any reasonable man and I need not stress on it.
In support of this nerve breaking testimony, the Plaintiff tendered photographs of his injuries and also relied on the medical report tendered by the orthopedic surgeon who attended to him. These are exhibits B, C and A respectively. Exhibit A states details of the initial clinical findings on the Plaintiff at the Komfo Anokye Teaching Hospital and which were corroborated by the testimony of PW1. These are:
· About 16cm long laceration antero medial extending from right knee to ankle
· Tibia (Right) exposed
· Wedge fracture of right tibia ( loose wedge fragment about 5cm with periosteum stripped
· Oblique right fibula fracture
· Actively bleeding wound
· All distal pulses, sensation and movement intact and
· Glasgow coma score = 15/15.
With these clinical findings, the team of orthopedic surgeons diagnosed Open grade 111 b right distal 1/3 tibia/fibula fracture.
These clinical findings were meticulously explained by the orthopedic surgeon who testified as PW1. Per his evidence, injuries are classified according to the energy that caused the injury and that the Plaintiff’s diagnosis is from the Grustillo-Anderson classification whereby fractures are classified into grade I, 11 and III, with increasing severity. He pointed out that Grade III injuries are further subdivided into (a), (b) and (c) and the Plaintiff fell within grade III b. He gave a vivid description of grade III injuries in this manner:
“In grade III, the injury is characterized by high belousity injuries. An example is gunshot wounds. You have a chunk of flesh that is torn so that you have difficulty closing. The underlying structures will be exposed. Usually, you have arterial and/or with nerve damage i.e. compromised nerve and vascular supply. The classification tells any surgeon the possibility or salvagability of the limb. The last and worse is grade III and Francis had a grade III b injury.”
PW1 further testified that the bones in the injured leg have not united irrespective of the repeated surgeries and that the Plaintiff has chronic osteo myeditis evidenced by the chronic discharge he is having. He was emphatic that non-united bones sometimes healed over time but despite the continuous administration of antibiotics, the Plaintiff’s bones have not united since the year 2011. Counsel for the Defendants who obviously seemed touched with these revealing details could not challenge them in cross-examination. The evidence of PW1 was very lengthy but Counsel asked a few questions in cross-examination. These mainly centered on the possibility of the Plaintiff gaining a significant use of this limb through plastic surgery and being able to engage in sedentary work.
In his written submissions, counsel for the Defendants did not discredit the evidence on the injuries, pain and suffering. Counsel for the Plaintiff reaffirmed the findings of the Medical officer (PW1) in his written address. He urged the court to award General and Special Damages in favour of the Plaintiff as a result of the injuries suffered.
Specifically, counsel invited the court to award special damages which the Plaintiff itemized in his evidence as follows: (i) Police medical form – GH¢70.00; (ii) Police Accident Form- GH¢70.00; (iii) Medical report GH¢250.00; (iv) drugs and maintenance as in-patient at KATH- GH¢7,000.00; (v) drugs and maintenance as out-patient- GH¢ 4,000.00; (vi) Transportation and dressing – GH¢500; ( vii) Native Medicine – GH¢300.00; (viii) Loss of income from farming – GH¢600 and (ix) Cost of external fixation in situ – GH¢200.00. Counsel drew the court’s attention to the fact that the Plaintiff could not get receipts for all the expenses made as some of them were not receipted for.
As regards the General Damages, Counsel for the Plaintiff submitted that this is an inference of law which need not be proved. In his view, General Damages can come any of these heads: (i) Pain and Suffering; (ii) Loss of amenities of life ; (ii) Prospective transport and expenses; (iv) Cosmetic disfigurement; (v) Past income and (vi) Loss of future income. Degraft v Gonja Review of Ghana law (1996-2000) at page 200 cited.
I observed PW1 as he gave these details. He was so passionate and according to him, he attends to each of his patients with passion. With the photographs tendered in evidence ( exhibits B and C), the detailed evidence of PW1 which corroborated that of the Plaintiff, I have no doubt in my mind that the Plaintiff did suffer a direct injury as a result of the accident negligently caused by the 2nd Defendant. Each time the Plaintiff came to court, I observed the painful difficulty with which he moved from the back seats to the front seats when his case was called. It is said that pain is subjective but in the case of this Plaintiff, this could be read from his outward expressions. The discharge from his right leg cannot be swept under the carpet. The stiffness he testified about was visible with the naked eye as he hobbled in. The closest analogy is a straight cassava stick which cannot bend. In short, I can boldly say that he was not faking the injuries and pains. Neither has he exaggerated the same.
The law is that special damages must be explicitly claimed on the pleadings. In AG v Faroe Atlantic Co. Ltd (2005-2006) SCGLR 271, the Supreme Court, per Dr Seth Twum JSC stated that special damages were such a loss as the law would presume to be the consequences of the defendant’s act, depending at least on the special circumstances of the case. They must therefore be explicitly claimed on the pleadings.
On the same subject, Dr Seth Twum in Delmas Agency Ghana Ltd v Food Distributors International Ltd (2007-2008) SCGLR 748 at 760 stated:
“Where a Plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss, and prove it strictly. If he does not, he is not entitled to anything unless general damages are also appropriate.”
His Lordship Dr Seth Twum stated the principle as regards general damages in the case referred to, supra as follows:
“General damages are such as the law will presume to be the probable or natural consequences of the defendant’s act. It arises by inference of the law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right… The catch is that only nominal damages are awarded.” See AG v Faroe Atlantic Co Ltd, supra.
From the evidence of PW1, an orthopedic surgery is very costly. He was emphatic that the cost of an Intra Medullary needle was GHS 2,500.00 as of February, 2014. This piece of evidence was not challenged by the Defendants and they are deemed to have accepted it. Again, it is on record that the Plaintiff has undergone at least five orthopedic surgeries since he suffered the injuries and is being prepared for a further surgery or surgeries. He was hospitalized for at least seven months. I do not want to believe that he was kept as an in-patient free of charge. The Defendants have also not established that the Plaintiff was a registered member of the National Health Insurance scheme or any other health insurance which would have taken care of some of these expenses. Short of this, the only reasonable inference which can be made is that the Plaintiff paid for his in-patient expenses at the hospital. I believed the Plaintiff when he told the court that he could not obtain receipts for most of his medical expenses. He could only tender a few receipts whose total face value is GH¢73.00 (exhibits F, F1 to F4). From the Plaintiff’s evidence, he was totally immobilized and it will be insensitive to expect him to go round chasing receipts. When a patient is in a critical condition, relatives concentrate on recovery and not receipts. Even now, the Plaintiff seems not to be full weight bearing. He relies on a walking aid with which he hobbles around. To hold that the Plaintiff’s established medical expenses which is recoverable as special damages is just a little over GH¢70.00 because of the receipts tendered will be unjust and unfair.
In Kubi & Ors v Dali (1984-86) GLR 501, the Court of Appeal refused to overturn the decision of the court below which pertained to the award of special damages in the absence of receipts. The Court of Appeal was of the view that where a party has particularized the special damages as required by law, Secondary evidence could be relied on to establish those facts in the absence of receipts. This is what the court said (holding 1):
“Special damages in the sense of a monetary loss which the plaintiff had sustained up to the date of the trial must be pleaded and particularised and then proved by admissible evidence otherwise it could not be recovered. In the instant case, the Plaintiff had set out particulars of her special damages in conformity with the requirement of pleadings. Given the circumstances of the case, the production of receipts at the trial would not be the only legitimate means of proving special damages. There was no doubt that the Plaintiff had spent money on the items particularised under the special damages and she had led cogent evidence to that effect. The Plaintiff clearly indicated that she had no receipts for some of the items and the court was therefore entitled to accept Secondary evidence as given by the plaintiff. In respect of those she was not given receipts for, it was again a question of fact as to whether or not those expenses were incurred. Since there was a basis for the trial judge’s finding that the Plaintiff’s actual expenses came to ¢5,500 it would not be right for the Court of Appeal to disturb it”. Ilkiw v. Samuels  2 All E.R.879.
Are the expenses incurred for native treatment recoverable?
I do not know of receipts been issued as regards native treatment. It will be unreasonable to insist on receipts for such treatments, particularly, where the court believes the evidence of a party who seeks to rely on the same. In Yamusah v Mahama (1991) 1 GLR 549, the court was of the view that monies spent on native treatment was recoverable and I share the same view. From the secondary evidence given by the Plaintiff as regards the expenses connected to his injury, i.e. police accident form, medical report, medical expenses and native treatment, I find that these expenses are recoverable as special damages. I will therefore grant the following amounts claimed as special damages :) Police medical form – GH¢50.00; (ii) Police Accident Form- GH¢70.00; (iii) Medical report GH¢250.00; (iv) Drugs and maintenance as in-patient at KATH-GH¢7,000.00; (v) drugs and maintenance as out-patient-GH¢4,000.00; (vi) Transportation and dressing – GH¢500; ( vii) Native Medicine – GH¢300.00; Cost of external fixation in situ – GH¢200.00. The total amount of the Special Damages is therefore GH¢ 12,370.00. I am however unable to grant the special damages being claimed as loss of income from farming because the same has not been proved to my satisfaction.
DEGREE OF INCAPACITATION
I now turn to the issue of whether or not the Plaintiff has been deformed and incapacitated as a result of the accident. Ordinarily, when one is incapacitated, he or she is put out of action. There is evidence on record that the Plaintiff is a professional driver. Prior to this accident, he was a truck driver. His oral testimony is further strengthened by his Class F drivers licence (exhibit E). By the classification of licenses in Ghana, this entitles him to drive any motor vehicle, specifically, goods carrying vehicles, buses/coaches and heavy articulator vehicles. There is unchallenged evidence on record that he was a co-driver on the vehicle numbered AS 5338 Z at the time of the accident. It is obvious from the current condition of the Plaintiff’s right foot that driving is an impossibility. From the evidence on record, he does not own any vehicle. There is the remotest possibility that he may be able to operate a vehicle specifically adapted to his condition. For example an automated vehicle adapted for use by the specific needs of a physically challenged person which can be moved without the use of the legs. I must confess that such a special vehicle is very expensive and beyond the pocket of the ordinary man. In this era of high unemployment, it is unlikely that any prospective employer will invest a fortune in such a vehicle whose operating cost will far outweigh the income it is likely to generate. The Plaintiff has not opted for amputation. PW1 indicated that some patients who have opted for amputation are able to lead normal lives. The Plaintiff before me is a man of full age and understanding. His choice to undergo reconstructive and corrective surgeries which have yielded little positive results is an exercise of his fundamental human right. No surgeon or court can compel him to undergo amputation and use a prosthetic devise. Any such attempt will be unethical and illegal and I believe no qualified surgeon will dare to do so. Indeed, PW1 said in his evidence that the Plaintiff’s leg in issue is non-functional. By his description, the Plaintiff has something that looks like a leg but cannot perform the functions of a leg.
As regards the deformity of the Plaintiff’s right leg, PW1 stated:
‘The wound has healed with a hypertrophic scar and extensive contractures. Few surgeons will be heroic to make this leg smaller than it looks now. What can be done is reconstructive plastic surgery in a well-resourced center. The leg as we see now is not a functional leg. It is not serving the purpose of a leg. Reason being that he has chronic asteo myeditis evidenced by the chronic discharge he is having.
On the reconstructive plastic surgery, PW1 answered in cross-examination that it cannot restore his limit for him to walk because that surgery concerns trauma orthopedic with the bone. I observed that the Plaintiff’s affected leg looks much bigger than his left leg and the sight of it is not pleasant to the eye. The deformity in the right leg is visible.
What then is the degree of incapacitation? The starting point is exhibit A. Whereas the percentage of the Plaintiff’s incapacity within the workmen’s compensation Act 1987 PNDCL 187 is given as 45% in exhibit A, PW1 expressed a contrary opinion in his testimony. To quote his exact words:
“In arriving at the percentage of incapacitation, I made reference to the workmen’s compensation Act 1987, PNDCL 197. There, loss of limb below knee is 60%. Loss of limb above knee is 75%; loss of the foot is 40%. I gave the patient 45% at the time I reviewed him, gave him antibiotics to stem the infection and hoping the non-united bones will unite. I did this with the then Head of the Department, Dr Peter Konadu. This is how I arrived at the 45%. But as we sit here, the limb needs further surgery… As I sit here, I do not think he has his leg and in reference to the workmen compensation Act, this loss of leg below the knee is 60%. That is my opinion as I sit here but the percentage will have to be determined by a team of doctors. Clearly, as I sit here, I know that the 45% is not a true reflection of his incapacitation now.”
I agree with the opinion of PW1 as regards the Plaintiff’s present incapacitation. If the Plaintiff had brought an action against his employer, the employers would have had to compensate him under the Workmen’s Compensation Act. The employer would then be entitled to be indemnified by the Third Party responsible for the injuries. Since the Plaintiff’s action is against the third party liable for the injuries, I will be guided by the evidence of PW1 where he drew inferences from the Workmen’s Compensation Act. I will thus assess the prospective loss of income at 60%.This means that the Plaintiff’s ability to earn income from his job prior to the accident is reduced by 60%. The working ability will then be 40%. I disagree with the calculations made by Counsel for the Defendants based on 45% permanent disability and 55% working ability as this is contrary to the evidence on record. To settle the arguments on the age of the Plaintiff, I accept the date of birth specified in his driver’s licence (exhibit E), in the absence of a valid birth certificate. This licence was first issued in the year 2000. The accident occurred in the year 2011. I do not think the Plaintiff lied about his age at least a decade before the accident when he did not have the slightest idea that he will find himself in the present condition. His date of birth stated in exhibit E is 02/02/1972. The accident happened on 08/01/2011. Thus, he was approximately 37 years and 11 months as he would have turned 38 on the 2nd day of the following month. The 37 years captured at triage and which is in evidence is therefore correct. However, I will use 38 years as the basis for any calculation because he had worked for at least 11 months from his 37th birthday.
The general statutory retiring age in Ghana is 60 years. Therefore, the calculation of the prospective or future loss of earnings (if any) by the Plaintiff will be as follows:
1. Age of the Plaintiff -38 years
2. Monthly income for 22 years (i.e. 60 years minus 38 years) =22 years of purchase.
3. Percentage of permanent incapacity- 60%.
The Plaintiff said in evidence that his monthly income as a long distance international truck driver as of the time of the accident is GH¢1,200.00. He failed to call further evidence to corroborate that evidence. At least, his employer would have been in a position to confirm this salary payment. In the absence of further proof, I am unable to accept the sum of GH¢1,200.00 as the Plaintiff’s monthly salary as of the year 2011. It can be inferred from exhibit E that the Plaintiff has about 15 years driving experience as a category “F” licence holder. Therefore, his experience goes beyond that on an entry-level driver. To peg his wage or salary at the statutory minimum wage will go to his disadvantage. As of now, the minimum wage is more than the GH¢4.10 quoted by counsel for the Defendant. The statutory minimum age as at May, 2014 was GH¢6.00. It was increased to GH ¢7.00 effective 1st January, 2015. As a long distance professional driver, factors which may affect his income level include years of experience, the associated risk on the road, and loss of time which could have been spent with his family. It is common knowledge that farms hands, popularly referred to as “by day” workers who do not work up to eight hours a day are paid between GH¢10.00 and GH¢15.00 per day. With this analysis, I will use GH¢30.00 per day as the basis for calculating the Plaintiff’s monthly income. This works up to GH¢900.00 per month. His annual income based on the GH¢900.00 will be GH¢10,800.00 (i.e. 900 x 12). The prospective earnings of the Plaintiff for the 22 years of purchase would be GH¢10,800 x 22 = GH¢237,600.00. 60% of GH¢ 237,600.00 is GH¢142,560.00. In the circumstance, the Plaintiff’s prospective earnings for the 22 years of purchase is assessed at GH¢142,560.00.
Counsel for the Plaintiff rightly submitted that general damages can be awarded under various heads including pain and suffering and loss of amenities of life. I have already explained that general damages arise by inference of law and need not be proved. Neither the Plaintiff nor PW1 provided any scientific basis that links his injury to the malfunctioning of his male organ. I am unable to take that into consideration in awarding general damages. Apart from the chronic pain, the discharge from the affected leg and partial immobility, the evidence shows that he will need further reconstructive surgeries on the non- functioning leg. In his present situation, the Plaintiff is unable to move about unaided. Previously, he could have patronized public transport such as the “trotro” but he cannot do so now. It is obvious from the evidence that the Plaintiff has incurred higher transportation expenses than what he would have paid prior to the injury and will continue to do so. On the balance of probabilities, the plaintiff’s evidence on his past time activity (i.e. football) is the least convincing and cannot stand. This is so because he told the court that in his leisure time, he sleeps. On the basis of the evidence before me, I award an amount of GH¢15,000.00 in favour of the Plaintiff for pain and suffering.
The Defendants were sued jointly and severally. It is apparent on the face of the record that Mercedes Benz Bus with registration number GT 4525 B which was negligently driven by the 2nd Defendant is owned by the 1st Defendant. At the time of the collision, the 2nd Defendant was conveying passengers with the said Benz bus. This was indeed in his line of duty. There is no evidence on record to show that the 2nd Defendant was on a frolic of his own. The 2nd Defendant is therefore vicariously liable in damages for the negligent driving of the said vehicle by his servant, the 1st Defendant as was held in Mensah v Dabanka (1962) 1 GLR 178 SC.
Accordingly, judgment is entered jointly and severally against the Defendants in favour of the Plaintiff. The Defendants are ordered to pay to the Plaintiff: (i) GH¢12,370.00 as special damages,
GH¢15,000.00 as General Damages for pain and suffering and GH¢ 142, 560.00 as loss of prospective earnings.
Having considered the provisions of Order 74 of C.I. 47, I award cost of GH¢ 3,000.00 against the Defendants in favour of the Plaintiff.