IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
HO - A.D 2016
BEN AMENYO - (Plaintiff)
VIDZA MOSES AND 3 OTHERS - (Defendant)
DATE: 25TH JULY, 2016
SUIT NO: E8/04/2012
JUDGES: N.C.A. AGBEVOR JUSTICE OF THE HIGH COURT
MR. KPORBLE FOR PLAINTIFF
MR. K.K. DZANKU FOR 2ND DEFENDANT
Plaintiff claims from the defendants -
General and Special Damages jointly and severally against the defendants resulting from an accident in which the plaintiff's vehicle No.GE 3789 W, a Kia Truck was damaged due to the negligent careless and dangerous driving by the 1st defendant of the 2nd defendant's vehicle No. AS 2618 Q, a Hundai Grace at Ziope.
Any other remedies/reliefs that the court deems fit and appropriate.
In his statement of claim, the plaintiff averred that on the 9th day of September, 2011 at Ziope the 1st defendant in charge of vehicle No. AS 2618 Q as driver and belonging to the 2nd defendant was involved in an accident involving plaintiff's vehicle No. GE 3789.
It is his case that the drivers of the two vehicles and all passengers were injured and the two vehicles extensively damaged.
Plaintiff said that the accident happened because the 1st defendant lost control of his vehicle No. AS 2618 Q as he went into the lane of the oncoming vehicles. Also the 1st defendant drove his vehicle negligently and without due care and attention resulting in the accident causing injuries and the damage to the vehicle.
Plaintiff pleaded the particulars of negligence -
Driving without due care and attention.
Failing to observe the road and keep in proper lane. Failing to stop when it was expedient to do so.
Driving at an unacceptable speed. e) Alternatively, the plaintiff would rely on the doctrine of Res Ipsa Loquitor.
It is his claim that he has suffered special damages which he listed as -
Los of use at GH¢70.00per day with effect from 9/9/2010 to date of payment.
Cost of repairs at GH¢5000.00.
The vehicle makes an average of between GHC1500.00 and GH¢2000.00 per month.
Plaintiff further avers that he had received the sum of GHC1000.00 from the insurers of the 2nd defendant and bore the rest of the cost of repairs which were completed by 15/10/2011. When he wrote to the 2nd defendant on the accident and his claim, the 2nd defendant wrote back that she had sold the vehicle No. AS 2618 Q to another person at the time of the accident.
Plaintiff added that checks at the DVLA revealed that there has been no change of ownership of the vehicle therefore the 2nd defendant remains vicariously liable for the acts of the 1st defendant.
On the 30/12/2011 the 2nd defendant filed a motion on notice for the substitution of the purchaser of the said vehicle No.AS 2618 Q from her that is Samuel Dorpenyo. It is her case that she was the lawful owner of vehicle No. AS 2618 Q. That on 20th May, 2010 she sold the vehicle to one Dorpenyo of Penyi who paid fully for it and the entire documents on the vehicle handed over to him to enable him to effect change of ownership. 2nd defendant exhibited a deed of Sale and Transfer of vehicle marked as GB1 and GB2 respectively. 2nd defendant therefore denies liability for the reliefs sought.
At the close of pleadings the following were set down for trial.
Whether or not it was the 1st defendant who negligently caused the accident solely or the plaintiff's driver.
Whether or not the 2nd and 3rd defendants are vicariously liable for the accident caused by the 1st defendant.
Whether or not the plaintiff is entitled to his claims.
. Any other issues raised and arising out of the pleadings.
Upon the application for the substitution of Samuel Dorpenyo for the 2nd defendant, the court considered the application and rather joined the said Samuel Dorpenyo as 3rd defendant.
Also, the following facts were found not to be in dispute -
The plaintiff is the owner of vehicle No. GE 3789 W a Kia Truck.
The 2nd defendant was the lawful owner of vehicle No. AS 2618 Qa Hundai Grace bus.
. That at the time of the accident the 1st defendant was in charge of the said vehicle AS 2618 Q.
. That since 20th May, 2010 the 2nd defendant had sold the vehicle AS 2618 Q to the 3rd defendant.
That at the time of the accident the 1st defendant was in charge of vehicle No. AS 2618 Q as driver agent and servant of the 3rd defendant.
Plaintiff's case is that on the 9th September, 2011 he was informed that his vehicle No. GE 3789 W was involved in an accident at Ziope. On the next day plaintiff and defendants met police and the DVLA at the scene where measurements were taken. They were then asked to remove their vehicles from the scene for repairs.
Plaintiff added that he wrote to the Insurers (S.I.C) who requested for estimates on repairs required on the vehicle. He obtained estimates from a firm known as GERCO VENTURES LTD which the plaintiff said he forwarded to S.I.C.
Plaintiff tendered the Police Report of the accident which is marked Exhibit "B". The estimates tendered in evidence as Exhibit "A". Plaintiff also tendered as Exhibit "C" S.I.C. letter to plaintiff accepting to pay up to GHC1000 as cost of repairs of plaintiff's vehicle and that any further cost to be borne by the 3rd defendant.
Plaintiff said he then wrote to the 2nd defendant to pay him the balance of cost of repairs but 2nd defendant refused to settle it saying at the time of the accident she had sold the vehicle to the 3rd defendant and therefore she was not liable for any claim.
Plaintiff put in a claim of GH¢5000 to the S.I.C who cut it down to GHC4500 and subsequently according to the plaintiff the estimates was cut down again by S.I.C. to GHC2570 who paid the plaintiff GH¢1000 as their liability. Plaintiff agreed that the balance of amount due him was GH¢1570 exclusive of loss of use plus interest.
On his part the 3rd defendant admitted the 1st defendant was his employee and was in charge of his vehicle As 2618 Q at the time of the accident. He said he purchased the vehicle from the 2nd defendant who agreed to allow him use the Vehicle under her insurance cover.
Police investigations revealed that his driver veered off his lane in a curve causing the accident and that the Police found his driver 1st defendant to be at fault. 3rd defendant further stated that plaintiff demanded for his insurance policy which he gave to him in the name of 2nd defendant. Plaintiff was paid GH¢1000.
In cross examination of plaintiff by 3rd defendant, plaintiff said that his vehicle makes daily sales of GH¢70.00 while defendant said his vehicle made GH¢40.00 per day.
Plaintiff said he is claiming his daily sales from 3defendant "from the date of the accident till I put the vehicle back on road" with interest, and also the balance of cost of repairs."
On evaluation of the evidence adduced by the parties it was clear and no longer an issue for determination that the 1st defendant negligently caused the accident. 3'a defendant admitted that the 1st defendant was his agent who was in charge of his vehicle at the time of the accident. He proceeded -
"I met with the police and plaintiff; the police investigated and discovered that my driver, 1st defendant had veered off his lane in a curve. The police took over car documents. My driver was found to be at fault”.
In cross-examination of 3rd defendant by plaintiff this ensued –
Q. At last date you made court aware that it was your driver who did not drive well - that is he was reckless.
The 1st defendant did not give evidence in this case but differed to his car owner 3rd defendant who admitted that his driver; the 1st defendant caused the accident. Plaintiff tendered a Police Report as Exhibit stated in part -
"On reaching a section of the road at Ziope just after the CEPPS barrier, he (1st defendant) lost control of his vehicle . and run into the offside lane when facing Aflao direction, crushed into a Kia Truck No. GE 3789 W which was coming from the opposite direction and went ahead to crush into an Opel Kadet Taxi cab No. VR 162 S.........."
It is clear from 3rd defendants admission and these facts that 1st defendant caused the accident for which 3rd defendant is vicariously liable.
As to liability of the 2nd defendant it is equally clear from the proceedings that upon the sale of vehicle No. As 2618 Q to the 3rd defendant the 2nd defendant transferred all the documents on the said vehicle to the 3rd defendant. All that was required by the 3rd defendant was to conduct a change of ownership. The 2nd defendant bears no liability after the transfer of the vehicle to 3rd defendant.
WHETHER PLAINTIFF IS ENTITLED TO HIS CLAIM.
Plaintiff's claims against the defendants are for General and Special damages;
Punitive costs and any other reliefs.
This court has from the above evaluation of the evidence determined that an liability arising from the accident is to be borne vicarious by the 3rd defendant.
Plaintiff's evidence was that at the request of the 2nd defendant's insurers he obtained estimates of the cost of repairs of his damaged vehicle which was stated as GH04500 tendered in evidence as Exhibit “A”. The Insurance Company revised this cost of repairs to GH¢2570.00 and paid their limit of liability under the third party Property Damage of GHC1000 to the plaintiff. This was tendered in evidence as Exhibit "C".
Plaintiff admitted in cross-examination that in Exhibit “C” the insurers upon the payment of their liability of GH¢1000 he was to obtain the extra liability from the insured, and insisted the estimated cost of repairs did not include loss of use. It is my finding that the estimates in Exhibit "C" did not include loss of use.
Plaintiff claims loss of use of GH€70.00 sales with his commercial vehicle but produced no further evidence of the income. The burden was on the plaintiff to prove with cogent evidence either by receipts or records his daily sales.
3rd defendant claims he makes sales of GH€40.00 with his Hyundai Grace Bus Plaintiff's vehicle is a Kia Truck. The evidence shows that plaintiff's vehicle required repairs and without further evidence the court will award the plaintiff GH€50.00 per day from 10/9/2010 to 10/10/2011 instead of the 15/10/2011 claimed by plaintiff which is not supported by any evidence. Plaintiff is required to abate his loss.
Thus I award the plaintiff the sum of GHC1570.00 as unpaid cost of repairs, loss of use of GH¢50.00 from 10/9/2010 to 10/10/2011. I also award the plaintiff cost sum of GHC1500.00 against the 3rd defendant.