IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
ROCASON VENTURES LIMITED -(Plaintiff)
RICHARD MANSO & ANOR. - (Defendants)
DATE: 7TH JUNE, 2016
SUIT NO: TOCC/163/15
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
OHENEBA KUFFOUR FOR THE PLAINTIFF
MRS CYNTHIA OPARE FOR THE DEFENDANT
Rocason Ventures, the plaintiff herein, describes itself as a Limited Liability company that deals in transporting and supplying of terrazzo chippings. The 1st defendant has also been described as a driver in the employment of the 2nd defendant, Takoradi Flour Mill Ltd.
By its writ of summons and statement of claim issued from the registry of this court on 28/1/14, the plaintiff sought the under listed reliefs:
a. A declaration that the 1st defendant is liable in negligence for the accident involving vehicles with registration number GT 7725 X and AS 4027 V which occurred at Menang Junction near New Edubiase on 28th November, 2012.
b. A declaration that the 2nd defendant is vicariously liable to the plaintiff for the damage caused to plaintiff 's vehicle as a result of the accident aforementioned due to the negligence of the 1st defendant.
c. An order for the recovery of the sum of GH¢ 84, 500.00 being the expenses incurred by the plaintiff on alternative transportation by hiring vehicles for business during the period between 30th November 2012 and 27th August, 2013 when the plaintiff 's vehicle had been damaged as a result of the negligence of the 1st defendant.
d) General damages for negligence
e) Any further orders as the Honourable court may deem fit.
THE PLAINTIFF 'S CASE
The plaintiff's case is that on 28/11/2012 whilst its articulated truck with registration number AS 4027 V was on the road from Obuasi to Tema to deliver terrazzo chippings to its customers in the natural course of its business, the 1st defendant who was driving the 2nd defendant's Man Diesel articulated Truck with registration No. GT 7725 X from Kumasi towards Takoradi drove so carelessly whilst over taking the plaintiff's vehicle. As a result of the negligence, the defendant's vehicle hit the frontal portion of the plaintiff's vehicle resulting in massive damage to the plaintiff's vehicle and the same was left in a bad condition not worthy to transport the plaintiff's load on the road. The plaintiff set out the particulars of negligence in paragraph 7 of its statement of claim and asserted that it had to resort to renting alternative vehicles for its business, resulting in expenses to the tune of GH¢ 84, 500.00. So, in addition to the declaratory reliefs and general damages sought by the plaintiff, it is seeking to recover these expenses from the 2nd defendant whose driver is alleged to have negligently caused the accident.
THE DEFENDANT'S CASE
The Defendant did not deny the fact of the accident in its statement of defence, but added that the accident was wholly caused, or contributed to, by the negligence of the plaintiff's servant and/or agent, Yaminn Mohammed, who crashed into the rear of the 1st defendant's vehicle. The defendants also gave their version of particulars of negligence and added that after the accident, the plaintiff wrote to them requesting for compensation for their losses. Since the vehicle was comprehensively insured, the 2nd defendant alleged that it referred the matter to its Insurer, Vanguard Insurance; the plaintiff put up a claim in respect of its losses to the said insurance company who subsequently paid the sum of GH¢13,500.00 as full satisfaction of the claims against the defendants, after which the plaintiff signed a discharge form. Having signed the discharge form and after being paid a settlement sum ,it is their defence that the plaintiff is estopped from putting in any further claim in respect of the same accident.
Both parties indicated in their pleadings that they will rely on the doctrine of res ipsa loquitur.
The plaintiff did not file a reply as none could be found on the docket when the case was transferred to this court. At the application for directions stage, the court adopted the under listed issues as the issues for trial:
a) Whether or not the accident which occurred on 28th November, 2012 involving vehicles with registration numbers GT 7725 X and AS 4027 V at the Menang junction was caused by the negligence of the 1st defendant?
b) Whether or not the 2nd defendant is vicariously liable for the accident caused as a result of the negligence of the 1st defendant?
c) Whether or not the plaintiff is entitled to its claim for expenses incurred for procuring alternative transportation?
d) Whether or not the accident aforementioned was caused by the contributory negligence of the plaintiff's driver?
e) Any other issues raised by the pleadings?
BURDEN OF PROOF
By our rules of evidence as contained in the Evidence Act, 1975 NRCD 323, sections 11(4) and (12), a party to a civil suit is enjoined to lead evidence in respect of any positive assertion contained in that party's pleading which his opponent denies. The application of this basic principle of proof in civil suits can be seen in cases such as Majolagbe v Larbi (1959) GLR 190 at 192 and Zambrama v Segbedzie (1991)2 GLR 221; Yaa Kwesi v Arhin Davis(2007/08) SCGLR 580;Barkers-Woode v Nana Fitz (2007-2008) SCGLR 879; Sarkodie v FKA Co. Ltd (2009) SCGLR 65 holding 1; and Abbey v Antwi (2010) SCGLR 17 at 19 (holding 2).
In expounding this principle of proof in civil suits, Kpegah JA (as he then was) had this to say in the
Zambrama case, referred to supra:
"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 and nature of that burden"
Generally, a plaintiff assumes the evidential burden by the averments in his statement of claim, and reply, if any. Likewise, a defendant carries the burden of persuasion on averments in his statement of defence. However, where a reply to a statement of defence is not filed, there is an implied joinder of issues on the defence as has happened in this case.
At the trial, a defendant may choose not to introduce any evidence to disprove the plaintiff's case, because after all, it is the plaintiff who has dragged him to court. But, when a defendant elects to do so, he or she must advert his or her mind to the repercussions. On this point, I feel compelled to quote the statement of Brobbey JSC in Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors (2003-2004) SCGLR 420 at page 425 that:
... A litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the plaintiff. If the court chooses to believe the only evidence on record, the plaintiff may win and the defendant may lose. Such loss may be brought about by default on the part of the defendant ..."
In the case before me, the plaintiff raised the question of negligence on the part of the 1st defendant, and invited the court to find the 2nd defendant vicariously liable for the negligence of the 1st defendant. The defendants also introduced the issue of contributory negligence. So, in effect, the plaintiff must first lead credible evidence to establish the 1st defendant's negligence; after which the evidential burden will shift onto the defendants to introduce evidence in rebuttal; and also to establish the extent of contributory negligence on the part of the plaintiff's driver. After the issue of negligence, and/or contributory negligence have been settled, the liability of the person found to be negligent will be dealt with; and of course, the question of vicarious liability becomes a matter of law for the court to decide; once those primary facts have been established. Obviously, the burden of proof of the expenses incurred in procuring alternative transportation will fall on the plaintiff.
THE ISSUE OF NEGLIGENCE
In the law of Torts, Negligence, which has its modern application from the case of Donoghue v Stevenson (1932) AC 562 has three constituent elements: namely, (i) a legal duty; (ii) a breach of that duty; and (iii) damage suffered as a consequence of that breach.
The plaintiff must prove that a duty of care was owed him in the circumstances of a particular case. This is both a question of law and fact because, first, the duty must exist in principle, and second, the plaintiff must justify the application of the 'law' to the actual 'facts' of the case.
Generally, the law recognizes a duty of care in negligence where the relationship between the parties gives rise to that duty. This depends on the circumstances of each case. Elements which courts generally consider in determining the "duty criteria" are (i) forseeability; (ii) proximity; and (iii) just and reasonable.
Reference can also be made to Kumado, Kofi (2009) Introduction to the Law of Torts in Ghana, Chapter 19, page 149 where the Learned author discusses the key factors which are to be considered in deciding the standard of care required in any given circumstance as set out in the case of Kite v Nolan (1983) R.T.R. p. 252, C.A.; and Daborn v Bath Tramways (1948) 2 All E.R. 333. These are: (i) The likelihood of injury or forseability of harm; (ii) The magnitude or seriousness of the risk or harm;
The social value of the defendant's conduct or enterprise or the importance of the activity being engaged in for society or the end to be achieved; (iv) The difficulty or expense involved in averting the foreseeable harm or taking safety measures as against the risk and (v) Whether the activity or conduct complies with general and approved practice.
All these factors are assessed as at the time the harmful conduct complained of occurred and taking into consideration the surrounding circumstances.
In short, a legal duty of care in negligence must satisfy the 'neighbour' principle put together by Lord Atkin in Donoghue v Stevenson, referred to supra, at page 579 as follows:
"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour...(neighbours' being): persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
This common law position was also endorsed by our Supreme Court in the case of Edward Nasser & Co Ltd v McVroom & Anor (1996-97) SCGLR 468. Even though the facts differ from the instant case,
the findings and reasoning of the court are applicable. In that case, the 1st plaintiff moved into his
official accommodation with his wife, the 2nd plaintiff, and the house caught fire resulting in massive destruction of plaintiff's personal property. The plaintiffs sued at the High Court, claiming damages for personal property destroyed by fire as a result of the defendant's neglect in maintaining the electrical wiring system in the house. On the question of negligence, the Supreme Court held (head note 4) as follows:
In proving negligence in tort, the plaintiff must establish a duty of care owed by the defendant towards the plaintiff, which duty must arise from the nature of the relationship between them. Although a relationship of proximity must exist before a duty of care could arise, the duty must depend on all the circumstances of the case and it must be considered whether it was just and reasonable to impose a duty. On the facts of the instant case, the defendant had breached the duty of care owed to the plaintiffs and had been rightly held liable in negligence for the damage suffered by the plaintiffs."
To what extent has the plaintiff been able to establish the negligence of the 1st defendant in the case at hand? Here, the evidence of PW1 who was the driver in charge plaintiff's vehicle at the time of the accident becomes crucial. His evidence-in-chief was very short and in order not to leave out any part by way of summary, I will reproduce the essential part for emphasis. It is as follows:
“I was heading towards Tema from Obuasi with a trailer with chippings. When I got to a sharp curve near the New Edubiase Forest, I saw two oncoming Takoradi Flour Mills trucks. The Takoradi Flour Mills truck behind me wanted to overtake me but I showed a traffic indicator to indicate to him the place was not good for overtaking. By that, I mean the car behind me... The 1st defendant was driving a Takoradi Flour Mills Trailer. In the process of the overtaking, he used the trailer to hit the front part of my vehicle. The road was under construction so it pushed my vehicle down. My car fell down. The head of my car was damaged as well as the engine and the trailer. The load I was carrying were in sacks so they got bust. The head of the car is at the shop now. i.e. a fitting shop in the Breman area. I do not know whether the car has been repaired. The registration number of the car I was driving is AS 4025. I now say AS 4027"
The Plaintiff's representative who was called by PW1 to the accident scene confirmed the position of the plaintiff's vehicle at the time he got to the scene. According to him, the New Edubiase Police were brought in to investigate the matter, and thereafter issued a report on the accident. That report was put in evidence as exhibit "A". Continuing, the plaintiff's representative said his company notified the 2nd defendant's insurers, Vanguard Insurance Company, for any settlement as regards the repair of the plaintiff's articulated truck. He then tendered the response received from Vanguard Insurance as exhibit "B". He denied that the GH¢13, 500.00 received from Vanguard Insurance was a complete discharge of the 2nd defendant's indebtedness because it was too small relative to the actual cost of repairs as per the invoices he forwarded to Vanguard Assurance, i.e. the exhibit C series.
It is to be noted that even though counsel for the defendants extensively cross-examined the plaintiff's representative and PW1, her cross-examination was centered on matters other than their narration of how the accident occurred. At that point, the evidential burden shifted onto the defendants to disprove the evidence so led.
Only the 1st defendant testified. The 1st defendant and PW1 are the only persons who gave eye witness accounts of the events which led to the accident. Just as I did with PW1's account, I will set out the relevant portion of the 1st defendant's contrary version. This was what he said:
"On 28/11/2012, I was in Kumasi going to Takoradi. I was driving a Man Diesel with Registration number GT 7725 X. On my way to Takoradi when I got to New Edubiase where the road was straight, I saw an articulator in front of me. Since it was a straight road and the articulator was moving slowly, I decided to overtake him. It was a straight road and there was room for me to overtake. After I had overtaken him and I got to the middle, I realized he had accelerated. It was difficult for me to overtake the articulator truck. I used my driving experience to overtake the articulator. After I overtook him and got to my lane, the head of the articulator truck hit the trailer of my vehicle. That contributed to the accident. When the accident occurred, the plaintiff's vehicle fell down. The car owner went for a tractor to tow the vehicle".
Under cross-examination, the 1st defendant admitted that the point at which he did the overtaking was a curve. In terms of section 80 of NRCD 323 which deals with matters to be considered in determining the credibility of witnesses, that admission by the 1st defendant which contradicts his evidence-in-chief exposes him as a person not worthy of credit. He also admitted that he was arraigned before the New Edubiase Court on charges of careless & inconsiderate driving and negligently causing harm to which he pleaded guilty and that he never appealed against his conviction.
In his closing submissions, counsel for the plaintiff relied heavily on the evidence of PW1, the police accident report, exhibit A, as well as the admissions made by the 1st defendant under cross-examination. He argued that these pieces of evidence go a long way to prove the 1st defendant's negligence. Counsel then cited and relied on the case of Yamusah v Mahama (1991) 1 GLR 549 where Benin J (as he then was) held that:
"The fact that a party had pleaded guilty at the criminal trial (as in the instant case) was admissible in subsequent civil proceedings in proof of negligence but was not conclusive evidence of his liability for negligence; it was only prima facie evidence of his admission of negligence or it was evidence that by his own conduct he had accepted his fault or at least that he intended to admit his fault. The defendants were entitled to displace the prima facie evidence of negligence by evidence but they did not do so. The court was thus bound to find negligence proved against them."
Concluding, counsel invited the court to apply the doctrine of res ipsa loquitur if the cause of the accident as presented by the plaintiff and his witness is not convincing to the court.
Interestingly, counsel for the defendants dwelt on the fact that the 1st defendant's driver's license had expired at the time the accident occurred. In her closing submissions, counsel made reference to section 53(3) of the Road Traffic Act 2004 Act 683 which states that:
"Except as otherwise provided in this Act, a person shall not drive a motor vehicle of any description or class on a road unless that person is a holder of a driving license authorizing that person to drive a motor vehicle of that description or class"
For the defendants, counsel argued that it is the duty of the courts to preserve and maintain the law and not to assist law breakers; because one cannot break the law and seek any sort of remedy in a court of law. That ended her submissions on the issue of negligence; because reading her submissions made after the above argument, she only talked about the question of special and/or general damages as they apply to this case.
I must be quick to point out that counsel for the defendants is right in her argument that the driver's licence of the plaintiff's driver, PW1, expired on 21/03/12 and that he had been issued with a cover note dated 21/12/12. Beyond that argument, it is my considered opinion that the act of driving with an expired driver's license per se does not make a person a negligent driver within the meaning of the law. Whereas negligence is a tort; driving with an expired license which translates into driving without a license is a criminal offence; it is a crime against the Republic and the police can take steps to enforce the law. Accepting the argument advanced by counsel for the defendants will be tantamount to saying that an alleged criminal whose rights have been violated is helpless as far as the violation of his rights are concerned and that person cannot seek redress. But that ought not be the case.
Now, to the conviction and sentence of the 1st defendant on the charges referred to above which have a bearing on this case. It is provided under section 127 of the evidence Act, NRCD 323 as follows:
(1) Evidence of a final judgment in a criminal action of a Court adjudging a person guilty of a crime is not made inadmissible by section 117 when offered to prove a fact essential to the judgment."
And, as rightly argued by counsel for the plaintiff, the conviction and sentence of the 1st defendant in the criminal trial which he has admitted in this action is prima facie evidence of his negligence. I have carefully studied the police accident report, exhibit A, and the facts stated therein shows that in the process of overtaking the Renault articulated truck with registration number AS 4027- V, the 1st defendant failed to drive past the said vehicle completely and cut across. In the process, the middle portion of his Man Diesel articulated trailer hit the frontal portion of the Renault truck; the driver lost control of the truck as a result of the impact and it fell down.
In addition to the above prima facie evidence of negligence, PW1's rendition of the accident story in this court is more probable and convincing as opposed to the narration of the 1st defendant. This is because from the version of PW1, which is also confirmed by exhibit A, vehicle numbered AS 4027- V stayed in its lane at all times prior to the accident. Rather, the vehicle numbered GT 7725- X cut across in the process of overtaking which was not proper. The 1st Defendant who was in charge vehicle numbered GT 7725-X owed a duty of care to other road users, including the driver of the vehicle numbered AS 4027-V the 1st defendant herein, who was in close proximity with him. Was the action of the 1st defendant complained of reasonable under those circumstances? I will say no, because he failed to exercise due care in his attempt to overtake the other truck in issue; he ought to have known that his action would most likely result in serious damage to the vehicle of another road user; he failed to advert his mind to the magnitude of the risk associated with his dangerous act and the fact that dangerous driving is frowned upon in our society. The standard of care required of commercial drivers on the high way is very high in view of the associated risks.
Driving is an art which requires a combination of skills to achieve the desired results. It is not just a matter of being able to turn on the ignition key, selecting the right gear and pressing on the accelerator to move the vehicle forward! Each step taken on the road requires careful calculations; even though not with mathematical precision. For instance, if driver A wants to overtake driver B, driver A must first estimate the speed at which driver B is driving and compare the same to the speed at which his vehicle is moving; if driver B is moving faster, then it will not be prudent to attempt to overtake him. The second consideration will be the nature of the road at the point in time i.e. is it a straight road or a curve which makes it impossible to see oncoming vehicles? Third, driver A must estimate the speed at which he can completely pass driver B; indicate to him that he intends to move into his lane; ensure that there is a reasonable space in between the two vehicles before he moves into the lane of driver B. Any experienced and careful driver will take these minimal precautions before he overtakes another vehicle.
In the instant case, the evidence of the 1st defendant shows that the driver in charge vehicle numbered AS 4027 -V was accelerating faster at a point and the accident occurred whilst he maneuvered to overtake him. From all indications, it was just not appropriate for the 1st defendant to overtake the vehicle numbered AS 4027- V at the time he did. The 1st defendant ought to have known that in cutting across another articulated truck on a curvy road, an accident was most likely to occur. His decision to overtake another articulated vehicle at that point was a recipe for a disaster which could have been avoided had he exercised due care. Therefore, the 1st defendant by his own inconsiderate actions breached the duty of care which he owed the driver in charge articulated vehicle with registration number AS 4027- V.
Having weighed the evidence before me on the balance of probabilities, I accept the version of the plaintiff and PW1 as the truth and find that negligence has been established against the 1st defendant.
I conclude that the accident was solely caused by the 1st defendant and rule out any contributory negligence on the part of the plaintiff's driver.
The doctrine of res ipsa loquitur which both parties intended to rely on will not apply in the circumstances of this case because the cause of the accident is known; the court has accepted the plaintiff's narration of how it occurred and the 1st defendant has been declared as having acted negligently. Indeed, this position is supported by the Supreme Court Decision in Hasnem Enterprises Ltd v Electricity Corporation of Ghana (1998-99) SCGLR 288. The Supreme Court held (holding 1) that:
“The maxim res ipsa loquitur comes into operation:(i) on proof of the happening of an unexplained occurrence; (ii) when the occurrence is one which would not have happened in the ordinary cause of things without negligence on the part of somebody other than the plaintiff; and (iii) the circumstances point to the negligence in question being that of the defendant rather than that of any other person... Where the cause of action is sufficiently known, the doctrine does not apply because then, the question ceases to be one where the facts speak for themselves, and the cause would then have to be proved directly by the plaintiffs to establish facts from which negligence can reasonably be inferred."
LIABILITY IN TORT AND VICARIOUS LIABILITY.
What is the extent of liability of the defendants? This takes me to the second issue for determination, i.e. whether or not the 2nd defendant is vicariously negligent for the accident caused as a result of the negligence of the 1st defendant?
Ordinarily, damages will lie against the 1st defendant for his tortuous act. "Damages" can be defined as the monetary compensation claimed or awarded to one who suffers a loss or a detriment. The general principle underlying the award of damages either in tort or in contract is that the claimant is entitled to full compensation for his losses. This is often referred to as the principle of "restitutio in integrum". In tort, the rationale for the award of damages is to put the plaintiff in the position he would have been in if the tort had not been committed. That is the measure of damages.
A case in point is Borketey v Achinivu & Ors (1966) GLR 92 where the Supreme Court held that "the appellant was entitled not only to the market value of the taxicab at the date of the accident but also to the profits he would have made had the car remained on the road."
That said, the principle of vicarious liability needs to be discussed because the plaintiff seeks a declaratory relief based on vicarious liability. Typically, employers are liable for the acts of their employees, but not for the acts of independent contractors. Generally, for an employer to be vicariously liable for the acts of another person, three conditions must be established, namely: (i) the worker must be an employee ; (ii) the employee must have committed a wrong e.g. a common law tort; and (iii) the employee must have been acting in the course of his employment. These conditions also apply to master/servant relationships.
However, the position is different when it comes to the liability of a vehicle owner for damage caused by his car when being driven by his servant or agent. The driver need not be the employee of the owner. Once ownership of the vehicle is established, it is presumed that the driver is the servant or agent of the vehicle owner so as to make the vehicle owner vicariously liable for his acts. The owner may lead evidence to the contrary. For instance, he may lead evidence to show that the driver was on a frolic of his own. The Supreme Court decision in Aboaku v Tetteh (1962)2 GLR 165 is relevant to these discussions of the law on vicarious liability. This was what the court said in determining the liability of a vehicle owner in question (holding 1):
"where a plaintiff in an action for negligence proves that damage has been caused by the defendant's motor-car, the fact of ownership of the motor-car is prima facie evidence that the motor-car, at the material time was being driven by the owner or his servant or agent. On the settled principles of vicarious liability the second defendant could be held liable for the negligence of the first defendant whether or not he was in his employment and even if the relationship of master and servant strictly speaking does not exist"
This decision was followed in Adom v Ntow (1992-93) 4 GBR 1603, where the Court of Appeal held as follows (holding 3):
“The law was established that where, in an action for negligence, the plaintiff proved that the offending vehicle belonged to the defendant, the fact of ownership of the vehicle was prima facie evidence that the vehicle was being driven at the material time by the servant or agent of the owner..."
My task in the case before me has been made so easy because there are so many positive indicators from the evidence on record which point to irresistible conclusion that the 1st defendant was the servant of the 2nd defendant at the time of the accident; that the accident happened in the course of performing his official duties; and that the 2nd defendant is vicariously liable. For instance in exhibit A, Takoradi Flour Mills Ltd was stated as the owner of Man Diesel Articulated truck number GT 7725- X and its insurers were stated as: (i) Vanguard Assurance Company Limited (Comprehensive) and (ii) Metropolitan Insurance Company limited (Third Party). Also, the 2nd defendant as per exhibit B series furnished Vanguard Assurance with the accident report and other relevant documents for the claim to be processed; the claim was eventually processed; the claimant (now plaintiff) agreed to a settlement sum of GH¢13,500.00; signed a discharge form and received payment.
From the foregoing, the 2nd defendant's ownership of the truck that solely caused the accident under consideration is not in doubt at all. Being the owner of the vehicle at the time of the accident, the 2nd defendant had an insurable interest in the same and indeed, in acknowledgment of its vicarious liability, the 2nd defendant's insurer paid out a lump sum to the plaintiff as far back as 27/08/2013. Therefore, on the totality of the evidence on record, the 2nd defendant is vicariously liable for the damage negligently caused by its servant, the 1st defendant on 28/11/2012 to the plaintiff's articulated truck with registration number As 4027-V and i so declare.
THE ISSUE OF GENERAL DAMAGES.
Apart from the declaratory reliefs sought by the plaintiff, it also claimed general damages for negligence. I have already stated above that ordinarily, damages will lie against the 1st defendant for his negligent act and I will reiterate the point that in tort, the purpose for general damages is to place the claimant or plaintiff in the position he would have been if the tort had not been committed.
The law is that general damages need not be proved by evidence because it arises naturally from the violation of a person's rights. This position of the law is well illustrated in Delmas Agency Ltd v Food Distributors International Limited (2007-2008) SCGLR 748 and at page 760 of the report, Dr Seth Twum JSC had this to say:
"General damages is 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..."
The circumstances of the instant case are such that general damages for the damage caused to the plaintiff's vehicle cannot be awarded. The reason is that the plaintiff had already been paid a lump sum by the 2nd defendant's insurer prior to instituting its action on 28/1/14 as per the exhibit B series. An analysis of the nature of motor insurance policies will support the position taken by this court.
A motor insurance policy is a contract of indemnity. The word 'indemnity' literally means to save from loss or harm. In Black's law dictionary,9th ed., 'indemnity' is defined as "A duty to make good any loss or damage, or liability incurred by another"; "reimbursement or compensation for loss; damage or liability in tort."
Therefore, when an insurance policy is described as a contract of indemnity, it means that they are intended to provide financial compensation for a loss which the insured has suffered and put him in the same position after the loss as he enjoyed immediately before it. It is not meant to enrich or over compensate the insured or any person claiming through him.
The methods of providing indemnity are normally set out in the operative clause of the insurance policy. It could be payment of money, reinstatement, repair or replacement. In liability insurance, such as a motor policy, the money is usually paid to the third party who has suffered the loss rather than the insured. That was what happened in the case before me where the plaintiff received a lump sum under the comprehensive motor insurance policy taken out by the 2nd defendant in respect of its vehicle in issue. Even though the policy itself was not brought to the attention of this court, it can be inferred from the totality of the evidence on record that the money paid to the plaintiff was in respect of the actual damage caused to its vehicle. He was not compensated for loss of use or economic loss.
On 27/08/2013, Vanguard Assurance Company Limited wrote to the Plaintiff company. The letter reads:
Re: Insured : Takoradi Flour Mill Ltd
Date of Loss : 28th November, 2012
Licence Plate No : GT 7725 X
Claimant : Rocason Ventures
Claim No : C-001-1051-2013-000162
We refer to our discharge and have the pleasure in forwarding herewith the attached Ecobank cheque No. 004085 for an amount of GH¢ 13, 500.00 for the claim captioned above.
We sincerely appreciate your partnership with us and assure you of our best services at all times.
(sgd) Vida Annan
Corporate Relations Department
cc. The Managing Director Takoradi Flour Mill Ltd.
The Plaintiff has not led any evidence to show that the human being who acted on its behalf in signing the discharge form was coerced to do so. Neither has it been shown that the discharge form was executed under any mutual mistake or undue influence. There is evidence on record that the vehicle was towed from the accident scene to a mechanic shop after the accident by the plaintiff. Therefore, the plaintiff had every opportunity for its trusted mechanic to assess the actual damage caused to the vehicle as a result of the accident prior to negotiating with the 2nd defendant's insurer for a settlement. If the plaintiff caused that assessment to be done, brought it to the notice of the insurer, but accepted a lesser amount offered to him by the said insurer as full and final satisfaction of the claim, he cannot turn round to make any further claim for general damages against the insured or its servant relative to the damage caused to its vehicle. The plaintiff signed the discharge form and has thereby discharged the 2nd defendant's insurer, and by extension the defendants, from all liability relative to the claim. Put differently, the plaintiff is not entitled to any general damages from the defendants for the damage caused to its vehicle, having been duly compensated under the motor insurance policy for the damage caused to its vehicle.
If the plaintiff disputed the amount offered by the 2nd defendant's insurer, the company ought not have signed the discharge form and could have sued for the actual cost of repairs and /or related expenses. This is what any prudent man would do!
THE ISSUE OF SPECIAL DAMAGES.
Generally, special damages must be proved strictly. Counsel for the defendants did a good job on that point in her closing submissions. Again, Dr Seth Twum JSC made an emphatic statement on the need to prove special damages in Delmas Agency Ltd v Food Distributors International Limited, referred to supra at page 760 as follows:
... where the 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." See also AG v Faroe Atlantic Co Ltd (2005-2006) SCGLR 271.
By paragraph 9 of the plaintiff 's statement of claim, it pleaded as follows:
Plaintiff states that as a result of the loss of use of its vehicle, plaintiff incurred cost to the tune of GH¢84,500.00 in hiring other vehicles for its business within the period mentioned in paragraph 8 above."
(The period mentioned in paragraph 8 is 30th November, 2012 to 27th August, 2013).
At the trial, the plaintiff's representative led oral evidence to the effect that an amount of GH¢89,500.00 had been spent on alternative transport as at 27th August, 2013. He then tendered a series of Way Bills as evidence of hiring other vehicles for the plaintiff's business. PW2 testified that he was engaged by the plaintiff to carte terrazo chippings and that he charged GH¢2, 500.00 per trip. When asked in cross-examination whether he issued receipts to the plaintiff, PW2 said he normally carted cocoa to Tema and on his return trip he carted the plaintiff's goods as a "side job". He said in cross-examination that "when a driver picks goods on the side, no receipts are given". It can be reasonably inferred from the above piece of evidence that the plaintiff did not have to pay for a round trip in conveying its terrazo chippings. Any suggestion that the plaintiff company did so will be misleading and unacceptable.
The oral evidence of PW2 and the series of way bills tendered by the plaintiff to support its evidence on the monies allegedly spent on the alternative transport is not convincing to say the least. The frequency at which the way bills were issued raises doubt. On the face of the way bills, exhibits F and G series, different drivers operating different vehicles conveyed oyster shells from Duffor Gborkpo in the Volta Region to Kumasi. There is no indication whatsoever that these trucks had been rented by the Plaintiff herein. On most of the documents, nobody signed as having received the goods on behalf of the plaintiff herein- that space was left blank! Out of the many drivers who allegedly conveyed oyster shells to Kumasi, only PW2 gave evidence in court. And when he was challenged during cross-examination, he told the court that there were times when he delegated that duty because he was held up somewhere. Further, nowhere on these waybills has theamount purportedly charged been indicated and receipts evidencing payments were also not tendered in evidence. The waybills are therefore of no probative value relative to the amount of money allegedly spent on alternative transportation.
The Plaintiff has described itself as a Limited Liability Company. As such, the best proof of its expenditures, especially the ones in issue, would have been the tendering of its books of account and /or balance sheet which they are required to keep under the provisions of the Companies Act, 1963, Act 179. Indeed, under section 123 of Act 179 it is stated as follows:
Keeping of books of account
(1) A company shall keep proper books of account with respect to its financial position and changes in the books of account, and with respect to the control of and accounting for property acquired whether for resale or for use in the company’s business, and, in particular with respect to,
(a) the sums of money received and expended by, or on behalf of, the company and the matters in respect of which the receipt and expenditure takes place, and
(b) the sales and purchases by the company of property, goods and services, and
(c) the assets and liabilities of the company and the interests of the members in the company.
That apart, the plaintiff as a limited liability company is not exempted from paying taxes. The expenses which the company seeks to recover in this case, over GH¢84,000.00 is not a small amount. Certainly, if those monies were actually expended on behalf of the company, its tax returns would have reflected that position.
And I ask, where are the plaintiff company's tax returns and books of accounts for the period under review? These were suppressed from the court. The plaintiff failed to make use of the most credible forms of proof available and has thus failed to strictly prove his claim for special damages. Is the plaintiff entitled to anything at all, having failed to establish his claim for special damages? An answer will be provided shortly.
Per the Plaintiff's exhibit C, the total cost of repairs as per the invoices given to the company by its mechanic is GH¢ 20, 750.00 i.e. GH¢ 11, 750.00 + GH¢9000.00. These invoices were generated on 03/01/2013 and received by the 2nd defendant's insurer on 22/05/2013 as per their stamp thereon. That amount included workmanship. Loss of use which the plaintiff was entitled to was not part of the settlement. Probably, it was not part of the insurance policy. It would have been useful if the policy had been brought to the notice of the court for the same to be perused. That notwithstanding, it can be inferred from the evidence on record that what the insurer paid for was the cost of repairs agreed upon with the plaintiff and not loss of use.
Therefore, the 2nd defendant's liability to pay for loss of use not covered by the insurance policy still subsists as was held in Borketey v Achinivu, referred to earlier, except that the plaintiff has failed to strictly prove that specific financial loss.
By the plaintiff's own showing, the difference between the settled claim and the actual cost of repairs at the time is GH¢7,250.00 i.e. GH¢ 20, 750.00 less GH¢13, 500. If the GH¢7,200.00 difference would have brought the vehicle to the state in which it was prior to the accident, was it reasonable for the plaintiff company to rent alternative transport to the tune of GH¢ 89,000.00 for the period? The plaintiff ought to have taken reasonable steps to mitigate its losses. As Dr Seth Twum JSC noted in the Delmas' case referred to, supra, at page 764:
“ where the plaintiff is proved to have failed to take reasonable opportunity of mitigating his loss, he is entitled to only nominal damages".
Adinyira JSC concurring with the decision also stated that:
In assessment of damages, a court has to take into account whatever the plaintiff has done or has the means of doing to minimize his loss...".
On the totality of the evidence on record, I find that the plaintiff has failed to prove to the satisfaction of this court that the company actually spent GH¢ 2,500.00 per trip on alternative transportation. If that were the case, then the cost of ten trips would have been sufficient to fix the damaged truck and for the same to be put to use according to the invoices raised by the plaintiff's own mechanic, i.e. GH¢20,500. 00 as at March, 2013. If the Plaintiff was capable of paying GH¢ 89,000.00 on alternative transport as he alleges, then he was equally capable of raising GH¢20, 500.00 to fix its damaged truck whilst waiting for the 2nd defendant's insurer to settle the claim in respect of the damage to the vehicle. In that case, he would have had the use of its vehicle and at the same time minimize its losses.
Having failed to prove the special damages relative to the loss of use, I am unable to grant the relief sought. Instead, taking into consideration all the circumstances of this case, I will award nominal damages in the sum of GH¢ 10, 000.00 for loss of use for the period between December, 2012 up to 27th August, 2013 against the 2nd defendant who has been found to be vicariously liable for the tortuous act of the 1st defendant.
Accordingly, judgment is entered against the 2nd defendant in the sum of GH¢10,000.00. I have taken into consideration all the circumstances of this case as well as the provisions of Order 74 of C.I. 47 on the award of cost. Cost of GH¢3000.00 is awarded against the 2nd defendant in favour of the Plaintiff.