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GHANA BAR REPORT 1993 -94 VOL 4

Adom v Ntow [1992 – 1993] 4 G B R 1594 -  1602 C.A

COURT OF APPEAL

AMUAH, OFORI-BOATENG, FORSTER JJA

13 APRIL 1992

An additional issue arising from the pleadings was whether the driver pleaded guilty with the knowledge and consent of the defendant. The defendant’s grounds of appeal before this court were:

1. That the trial judge erred in law when he failed to consider the issue as to whether or not the other two drivers were responsible for the accident or they contributed to it.

2. That the judge erred in law by relying strongly on the police accident sketch, exhibit C.

3. That the judge erred in law in finding for the plaintiff even though some material witnesses such as the testing officer, the person who was alleged to have signalled the bus to stop and some of the passengers who saw the accident were not called.

4. The trial judge erred in law by allowing his mind to be influenced by the wrong impression that the defendant’s bus was overtaking the articulated truck when the accident occurred.

5. The trial judge erred in law when he failed to make a finding as to whether or not DW1 was acting within the scope of his employment or the plaintiff was a trespasser when he allegedly entered the bus for the journey.

The plaintiff also cross-appealed, contending that the quantum of damages awarded by the judge was inadequate in law. Mr Atua, counsel for the defendant, argued the grounds together. His submissions were mainly directed at the issue whether the defendant’s driver was negligent and if so whether his negligence could be imputed to the defendant to make him liable.

The trial judge found, and rightly in my view, that the accident was caused solely by the negligence of DW1, and to the exclusion of the drivers of the stationary articulated truck and the Leyland cargo truck, respectively. The trial judge addressed the issues in his judgment. The burden of proof was, as stated by the judge, on the plaintiff to prove his case by evidence from which it could be inferred that the negligence of the defendant led to the accident. This he stated should be established on a balance of probabilities. Having reviewed the evidence the trial judge concluded:

“The main and only cause of the accident was due to the negligent driving of the driver Boateng, DW1, in this case.”

It is this finding that counsel contended was not borne out by the evidence. I am mindful of the appellate court’s duty and responses to invitations by appellants to re-evaluate and review the trial court’s findings. An appellate tribunal may so review and substitute its inferences for that of the trial court only where there is complete absence of probative facts to support the conclusion reached, or where such proof exists, the conclusion drawn could not be supported by the evidence. But where, as here, there is evidence for the court’s finding, which is neither mere speculation nor conjecture, the appellate court’s function is exhausted and it is immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable. In SS Hontestroom v SS Sagaporak [1927] AC 37 Lord Sumner reasoned:

“Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge and unless it can be shown that he failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusion arrived at, merely on the result of their own comparison and criticism of the witnesses and of their own view of the case.”

See also Yuill v Yuill  [1945] P 15, R v Jantuah  [1968] GLR 689, Baiden v Solomon [1963] 1 GLR 488.

It is in the context of these guiding principles that the appeal against the judgment of the High Court must be considered. At the trial, the plaintiff’s evidence raised a presumption of negligence against the defendant. The plaintiff testified to the presence of the articulated truck some 300 feet ahead. At 4.30 pm visibility must be assumed to have been clear. The plaintiff saw ahead tufts of grass along the road and leading to the stationary truck. There was, according to him, a person who stood behind the truck and signalled DW1 to stop or slow down.

It is common knowledge that the presence of tufts of grass or leaves on the highway is meant to warn approaching vehicles of a potential danger. It invariably signifies that a vehicle is stationary and in the lane of approaching traffic. As the plaintiff said:

“The driver was driving at terrific speed and he should have slowed down. The driver tried to by-pass the stationary articulated vehicle with that same speed but when he realised there was the danger of an on-coming vehicle he ran his vehicle into the stationary articulated vehicle.”

PW2 was the police inspector who visited the scene of the accident. He tendered the sketch of the scene, which was admitted without objection. He also confirmed the plaintiff’s assertion. When he visited the scene he saw  “some leaves … lined up before the stationary articulated truck.” These items of evidence raise a presumption of negligence against DW1. See Adjei v Yeboa [1962] 1 GLR 322. In Akosuah Grunshie v Yeboah [1967] GLR 290, the Court of Appeal upheld counsel’s submission that where a stationary vehicle is hit by a moving one there is at least a presumption that the moving vehicle was to blame. See also Mbadiwe v Yaya (1953) 14 WACA 613.

The defendant’s driver, DW1 in attempting to rebut the presumption testified that upon sighting the truck in the curve he “tried to overtake it and as soon as I did that I saw an on coming car. I applied my brakes and hit the stationary articulated truck while the on-coming vehicle also hit me.”

In cross-examination, he said that when he saw the truck he necessarily had to overtake it and that the impact occurred in the lane of the on-coming Leyland truck and that he first saw that vehicle some five and half yards away. If he “had not been careful (he) would have driven into the stationary vehicle.” He however denied that there were tufts of grass and a signalling man warning him of the danger.

It was in the light of the evidence of DW1 that counsel contended that DW1 could not have been the cause of the accident; or that the two other drivers should have been held responsible for the accident or found to have contributed to it. I find the submission unmeritorious. DW1’s evidence is that he drove into the lane of the on-coming truck after he had hit the stationary vehicle. He had no business to drive into the lane of the approaching vehicle without first making sure that it was safe to do so, and he failed to impress the trial judge that his version of the accident was not consistent with negligence. The trial judge was indeed right in his finding that DW1’s handling of the bus in the circumstances showed that he was solely responsible for the accident.

Counsel for the defendant also submitted that the judge erred in not making a positive finding that DW1 was acting within the scope of his employment when the accident occurred. In his statement of claim, the plaintiff averred in paragraph 3 that:

“On 17 October 1981, at about 4.30 pm driver Joseph Boateng was in charge of the said Neoplan bus No GT 9810 and in the course of his employment was travelling from Accra to Kumasi with passengers (including the plaintiff herein) on board.”

In his defence, the defendant averred in paragraph 2 of his statement of defence that “the defendant admits paragraphs 3, 4, 5 of the statement of claim.” Thus, by his own pleading the defendant did admit that DW1 was driving in the course of his employment. In the absence of any further amendment, the defendant was even estopped from leading evidence to contradict his formal admission. The fact that there existed the relationship of master and servant between the defendant and DW1 was proved by their evidence. The defendant said:

“My driver DW1 drove the vehicle to Accra. I was at home when DW1 sent someone to inform me that the vehicle was involved in an accident at a point near Potroase. I sent my son to inspect the vehicle.”

DW1 also testified that he “got to know the vehicle belonged to the defendant because I was the driver.” By the admissions of both the defendant and DW1, his witness, it was not in dispute that the vehicle belonged to the defendant and that DW1 was driving it in the course of his employment when the accident occurred. Short of the admissions by the defendant and DW1, the law is that “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.” Aboaku v Tetteh [1962] 2 GLR 165 (holding 1). See also Packer v Sekondi-Takoradi Municipal Council [1960] GLR 259, Barnard v Sully (1931) 47 TLR 557, Hibbs v Ross [1939] (1866) LR 1 QB 534.

I find on the evidence, and aided by the summation of the law that DW1 was at the material time acting within the scope of his employment and on the defendant’s business.

The issue of the plea of guilty by DW1 to the criminal charges is not disputed. That evidence was admitted by the trial judge and rightly so. The days have long passed when the rule in Hollington v Hewthorn [1943] 2 All ER 35 excluded the admission of evidence of a criminal conviction in a later civil action to prove the commission of the criminal act from which the civil action arose. The reformers’ broom abrogated the rule in its native England, with the enactment of sections 11-13 of the English Civil Evidence Act of 1968. Applying section 11 of the Civil Evidence Act 1968 in a negligence action in Wauchompe v Mordecai [1970] 1 All ER 417, the Court of Appeal stated the effect of the provision on the burden of proof:

“Where a conviction was admissible in civil proceedings under section 11, the burden of proof was reversed. Instead of the burden of proof being on the plaintiff to prove that the defendant was negligent, it was for the defendant to prove that he had not opened the door as to cause injury. Owing to the conviction the burden was on the defendant.”

The conviction operated as prima facie evidence in favour of the plaintiff and shifted the evidentiary burden on the defendant to rebut the prima facie presumption.

In Ghana and long before the English Act, it had been held in Dwira v Ocansey [1963] 1 GLR 268 that:

“Where ‘A’ pleads guilty to a criminal charge and is convicted, the record of judgment upon this plea is admissible against him in a civil action as a solemn judicial confession of the fact. In these circumstances therefore I permitted the record to be put in evidence only as prima facie evidence of the defendant’s negligence.”

It was not until 1975, that the rule in Hollington v Hewthorn was conclusively abrogated in Ghana and in line with the English statute. By section 127(1) of the Evidence Decree 1975 (NRCD 323):

“Evidence of a final judgment in a criminal action of a court in Ghana adjudging a person guilty of a crime is not made inadmissible by section 117 when offered to prove any fact essential to the judgment.”

Section 117 enacts the general common law rule that excludes hearsay evidence. The commentary on the Evidence Decree, 1975 on Section 127 refers to the doctrine in Hollington v Hewthorn and observes that a finding of guilt in a criminal action “is entitled to at least be considered by the trier of fact in a subsequent action. The evidence of the criminal conviction will not be conclusive … and it will be open to the opponent to produce rebuttal evidence. Section 127(1) accordingly, provides for the admissibility of judgments of criminal conviction to prove any fact essential to the conviction judgment.” The evidence of the conviction of DW1 on charges arising from the accident was properly received as prima facie evidence of negligence. The burden then shifted onto the defendant to rebut that presumption. I am satisfied that that burden was not discharged.

Counsel also submitted that the plaintiff having failed to call corroborating evidence, the judge erred in acting upon his evidence alone. The law does not demand of a party a regiment of witnesses to prove his case. The law is well settled that multiplicity of witnesses alone does not prove a case, and that evidence of a single witness, if credible and reliable is sufficient proof of any matter in issue. For, as Napoleon is reputed to have said when he abolished a two witness rule in Rhineland: “One honourable man by his testimony could not prove a single rascal guilty; though two rascals by their testimony could prove an honourable man guilty,” (see Wigmore on Evidence paragraph 203). Nor shall we ignore Bentham’s views on the multiple witness proposition. He observed:

“Pondero, non numero ... In most cases a single witness by the simplicity and clearness of his narrative, by the probability and consistency of the incidents he relates, by their agreement with other matters of fact too notorious to stand in need of testimony a single witness … will be enough to stamp conviction on the most reluctant mind. In other instances a cloud of witnesses, though all were to the same fact will be found wanting in the balance.” See Bentham IX CCL paragraph 1.

These propositions of practical wisdom have not been lost on us. In Kru v Saoud Bros & Sons  [1975] 1 GLR 46 in a unanimous judgment, the Court of Appeal held: “this being a collision action, there was no rule of law or practice which required corroboration, the test being whether the evidence though given by a single witness was entitled to credit. The courts act on the uncorroborated evidence of a single witness since judicial decisions depend upon intelligence and not the multiplicity of witnesses produced at the trial. See also Ayiwah v Badu  [1963] 1 GLR 86; COP v Kwashie  (1953) 14 WACA 319 Atadi v Ladzekpo  [1981] GLR 218. In urging us to apply Majolagbe v Larbi [1959] GLR 190 counsel overlooked the obvious distinguishing features of the instant case. In Majolagbe title was in issue. To succeed, a party must prove root of title, proffer evidence clearly identifying his land and boundaries thereof and tender evidence of adjoining landowners to support his claim. In such a case, the mere narration of matters pleaded is no proof in discharge of the burden cast on him.

In the instant case, the issues were not so complex nor the manner of proof so diversified. The plaintiff was a passenger on the Neoplan bus, then being driven by DW1, who subsequently pleaded guilty to criminal charges arising out of the collision. The plaintiff himself had the lower part of his left leg smashed and subsequently amputated. He gave evidence of what he saw. This eyewitness’ testimony required no corroboration and none is demanded by law. He succeeded or failed in the light of the impressions the trial judge formed of his credibility as a witness. The judge found him credible and his evidence reliable. This court sees no justification in differing from the view formed by the court a quo.

Upon a review of the evidence and the findings of the trial court, the conclusion that the accident was caused solely by the negligence of DW1 cannot be faulted. The defendant as the master of DW1 is vicariously liable for the latter’s negligence, since as the court found DW1 was at the material time acting in the course of his employment. Once the employee’s conduct is found to be within the scope of his employment, the conduct, if negligent, necessarily results in the imposition of liability upon his employee and no matter how innocent of fault he may be himself. This view has long been held. In Ormrod v Crosville Motor Services Ltd [1953] 2 All ER 753, Denning LJ explaining the vicarious liability of the owner or employer in negligence cases said:

“The law puts an special responsibility of the owner of a vehicle who allows it to go on the road in charge of some one else, no matter whether it is, his servant, his friend, or anyone else. If it is being used wholly or partly on the owner’s business or for the owner’s purposes, the owner is liable for any negligence on the part of the driver.”

See also Broom v Morgan [1953] 1 QB 597.

The defendant was therefore rightly held liable for the negligence of DW1 and it does not matter that in his view DW1 could not have been responsible for the accident, a point on which much argument was expended both at the trial and on appeal. In my judgment, therefore, the defendant is liable in damages to the plaintiff.

The award of damages was not made an issue in the defendant’s grounds of appeal. The issue of damages was however raised in the plaintiff’s cross-appeal filed on the 13 March 1991. The grounds of appeal were:

“That the quantum of award (ie ¢2,376,000) adjudged in favour of the plaintiff herein is inadequate in law. That the trial High Court in making the award failed to take cognisance of the following factors (a) pain and suffering endured by the plaintiff from the date of the accident that is 17 October 1981 to the date of judgment ie 30 July 1990; (b) the percentage of damage worked in favour of the plaintiff per the medical report; (c) pain and suffering to be endured by the plaintiff from the date of judgment to the end of his life; (d) the length of time spent by the case itself; (e) that the jobless position of the plaintiff was one that was inflicted on him as a result of the accident ie the collapse of the plaintiff’s tie and dye business; (f) the plaintiff’s current jobless position; (g) the harsh economic conditions in the country taking into account the high rate of inflation.”

The only ground of appeal argued before the court was with respect to damages for loss of earnings. Learned counsel for the plaintiff submitted that at the age of 33 years at the time of the accident, the year of purchase should be 27 years.

The general rule applicable to re-assessment of damages by an appellate tribunal was set out in Baiden v Solomon  supra. The court said at page 496:

“…before this court can properly  intervene it must be satisfied either that the judge, in assessing  the damages, applied a wrong principle of law (as by taking into account some irrelevant one); or short of this, that the amount awarded is either so inordinately low or so inordinately high  that it must be a wholly erroneous estimate of the damages.”

The trial judge, in my view, addressed the evidence on damages and took into consideration all relevant factors. There was, quite surprisingly, no evidence of loss of earnings nor was it pleaded in the first place. I am of the view that the quantum of damages awarded to the successful plaintiff was neither inordinately low nor inordinately high. The award cannot therefore be disturbed. In the event and for reasons already given both the appeal of the defendant and the cross-appeal of the plaintiff are dismissed, and the judgment of the High Court is affirmed.

AMUAH JA. I agree. The learned trial judge took into account the oral evidence given by the plaintiff, the sketch of the accident drawn by the police and the circumstances in which the accident occurred to arrive at a conclusion that the defendant’s driver was solely to blame for the occurrence of that day and that the defendant was vicariously liable. For the heads under which damages are assessed in personal injuries see Fibre Bag Manufacturing Company v Sarpong  [1967] GLR 657 at page 658 holding (6). The heads are: (1) prospective loss of earnings (2) pain and suffering (3) loss of amenities. There is also an additional head of special damage as in this case. For the injuries he received on the waist, hand and leg, hospitalisation for six months culminating in the amputation of his left leg he must have suffered greatly. An award of ¢300,000 under the head of pain and suffering is not excessive. Under the head of prospective loss of earnings the plaintiff is 41 and has five children to maintain. He has not been able to pay their school fees as a result of the injuries he received. Taking the sum of ¢15,000 as an average minimum monthly earning for his 19 years of active working life, he will earn 15,000 x 12 x 10 years at least (ie ¢1,800,000). This sum added to any award for loss of amenities of life will earn him something in the region of 2 million cedis. On the expenses incurred for the award of special damages, they are as follows: medical expenses, nursing, cost of transport to and from hospital and extra domestic help - ¢20,000, crutches ¢4,000. Chemicals for his tie-and-dye business, which spilled at the time of the accident - ¢25,000 cedis. In all, the learned trial judge awarded ¢76,300 as special damages which he considered as genuine. The awards under the various heads have not been shown to be “glaringly excessive or ludicrously inadequate;” see A Lang Ltd v Amoah   (1969) CC 147. In my opinion they are reasonable and should not be disturbed. In the result, both the appeal and the cross-appeal should be dismissed.

OFORI-BOATENG JA. I also agree.

Appeal and cross-appeal dismissed.

S Kwami Tetteh, Legal Practitioner