Negligence – Burden of proof –
Highway Code – Breach of –
Defendant parking vehicle at
night without warning sign –
Whether conclusive evidence of
negligence.
The plaintiffs’ driver drove
their bus with passengers. About
midnight he saw an oncoming
vehicle, dipped his headlights
and moved to the right for the
oncoming vehicle to pass. He
then switched on his headlights,
moved on but ran into a
stationary vehicle in the middle
of the road, loaded with wawa
boards. The bus was damaged and
some passengers were injured.
The plaintiffs sued the
defendant for damages. The trial
judge gave judgment in favour of
the plaintiffs because the
defendants failed to provide an
advance-warning sign. On appeal,
the defendants’ counsel
submitted that the plaintiffs’
driver rather drove negligently.
He submitted further that the
defendants’ failure to provide
an advance-warning sign was a
strict liability offence that
did not necessarily import
negligence; besides, the 1st
defendant was acquitted of the
offence. Counsel for the
plaintiffs submitted that the
presence of the defendants’
vehicle on the road without any
warning constituted nuisance
that resulted in the accident.
Held:
the trial judge’s holding that
the defendants were negligent
because they did not provide an
advance-warning signal was
untenable as he had rightly held
in the judgment that breach of
regulation 92 of the Road
Traffic Regulations 1974 (LI
953) by failing to provide the
warning signal could not ipso
facto amount to negligence.
There was ample evidence on the
record that the plaintiffs’
driver was the cause of the
accident. Ivanov v Speedy
Travel and Tour Ltd
[1974] 2 GLR 227; Woledzi v
Akufo-Addo [1982-83] GLR 421
referred to.
Cases referred to:
Ivanov v Speedy Travel
and Tour Ltd [1974] 2 GLR
227.
Owusu v COP
[1963] 1 GLR 113, SC.
Woledzi v Akufo-Addo
[1982-83] GLR 421.
APPEAL from the High Court to
the Court of Appeal.
Dr W C Ekow Daniels for
the appellants.
Adu-Amankwa
for the respondents.
ADJABENG JA.
At about 11 am on 16 December
1986, William Karikari Appau, a
driver and servant of the State
Transport Corporation, the
plaintiffs-respondents in this
appeal, took charge of the
corporation’s bus with
registration number AM 9528 with
passengers on board and started
for Wa in the Upper West Region.
He was, according to his
evidence the only driver
assigned to that bus that day.
The said driver, who gave
evidence as the first witness
for the plaintiff, drove the
vehicle till he reached a
village called Sawla where he
stopped to enable a passenger
alight. According to this
witness, he reached this village
at about 10 pm. After the
passenger had alighted, he took
off again and when he had done
about three miles, something
happened. The witness said he
saw the light of an on-coming
vehicle. He continued as
follows:
“I then dipped my head lights.
It was a rough dusty road. I
then gave way to the on-coming
vehicle to pass by going to the
right. As soon as the on coming
vehicle passed I switched on my
headlights and came back onto
the road and suddenly, I saw a
stationary vehicle parked in the
middle of the road, loaded with
wawa boards. At the time I saw
the stationary vehicle, the
distance would be about 4
metres. I then applied my brakes
and swerved to the left and my
vehicle ran into the stationary
vehicle”
That was at about midnight. As a
result of the accident, the
front part of the bus was
damaged and some of the
passengers were injured. The
plaintiff-corporation later took
action against the
defendants-appellants, claiming
“the sum of ¢19,819,449 of which
¢7,819,449 represents the value
of the plaintiffs’ Setra Bus No
AM 9528, and ¢12,000,000
represents loss of the use of
the bus for 100 days being
damages for the negligent
driving by the 1st defendant in
the normal course of his duties
as the driver agent or servant
of the 2nd defendant resulting
in the total loss of the
plaintiffs’ said bus. The
particulars of negligence
pleaded by the plaintiffs are:
“(a) Failing to provide advance
warning signs to indicate to
other users of the road the
presence of the defendants’
vehicle.
(b) Failing to have proper
lookout for other users of the
road.”
The defendants denied that the
1st defendant was negligent and
attributed the accident to the
negligence of the plaintiffs’
driver. They pleaded the
following particulars of
negligence on the part of the
plaintiffs’ driver:
“(a) Driving too fast in the
circumstances.
(b) Failing to keep a proper or
any lookout at all.
(c) Failing to so steer, manage
or control his vehicle as to
avoid running into a stationary
vehicle.
(d) Failing to keep to his side
of the road.”
The court set down the following
issues for trial:
“(a) Whether or not the 1st
defendant provided adequate
warning guide when he parked the
2nd defendants’ vehicle on the
road;
(b) whether the 1st defendant
was convicted for failing to
provide warning guide;
(c) whether or not the accident
occurred because of the 1st
defendant’s negligence in
failing to provide warning
guide;
(d) whether or not the
plaintiff’s driver was
negligent.
(e) whether or not the plaintiff
is entitled to his claim.”
After hearing evidence and the
addresses, the trial judge
entered judgment in favour of
the plaintiffs. He awarded in
their favour the total sum of
¢14,111,657.50 made up of
¢7,990,657.50 being the
replacement value of the bus,
and ¢6,205,000 as loss of use of
the said bus for 6 months.
Being dissatisfied with the
judgment, the defendants
appealed to this court on the
grounds that:
“(a) The said judgment is
against the weight of evidence
adduced in that having regard to
all the circumstances of the
case the plaintiffs-respondents
rather than the
defendants-appellants should
have been found guilty of
negligence wholly or partially.
(b) The learned trial judge
misdirected himself on the
principles for the award of
damages.”
Arguing the first ground of
appeal, counsel for the
defendant-appellants, Professor
Ekow Daniels, submitted that
having regard to the facts of
the case, especially the
evidence of PW1, the learned
trial judge should have found
that the accident was rather due
to the negligence of PW1.
Counsel referred to regulation
55 of the Road Traffic
Regulations 1974 (LI 953), and
submitted that PW1 should not
have driven the bus continuously
for more than four hours, and
that it was wrong for him to
have driven for thirteen hours
at the time of the accident.
Counsel submitted that the trial
judge was wrong in basing his
finding of negligence on the 1st
defendant’s failure to provide
advance warning when he had been
acquitted of obstruction.
Counsel argued that failure to
provide advance warning under
regulation 44 of LI 953 is a
statutory offence of strict
liability, which does not import
negligence. This is because,
according to counsel, proof of
breach of a statutory provision
does not depend on proof of
negligence. Counsel submitted
that failing to provide
advance warning could not have
contributed to negligence in the
present case because the
evidence showed clearly that the
PW1 was the sole cause of the
accident. He argued that when
the road was covered with dust
as PW1 himself claimed in his
evidence, his duty was to wait
until the dust cleared or
settled down before moving. He
failed to do this and yet the
trial judge completely
disregarded the evidence, which
would have enabled him to decide
the issue of negligence. Counsel
relied on the case of Owusu v
COP [1963] 1 GLR 113, SC.
On the issue of the quantum of
damages, counsel submitted that
the trial judge was wrong in
awarding to the plaintiffs both
the replacement value of the bus
and loss of use of the same bus
for six months when the evidence
showed that the said bus was a
total loss or wreck.
Counsel for the
plaintiff-corporation, however
was of the firm view that the
defendants-appellants were
wholly responsible for the
accident because they failed to
provide adequate warning in
respect of their broken-down
vehicle on the road. After
referring to Halsbury’s Laws
of England, 3rd edition, Vol
28, paragraph 60 at pages 62-63,
counsel submitted that the
presence of the vehicle on the
road constituted an obstruction.
Counsel therefore invited the
court not to disturb the
decision appealed against as the
trial judge was right in the
conclusion he reached that it
was the negligence of the 1st
defendant-appellant that caused
the accident.
It is clear from the judgment of
the trial court that the judge
based his finding of negligence
against the 1st defendant on his
failure to provide advance
warning to other road users. The
trial judge concluded as
follows:
“I am rather satisfied (1) that
1st defendant’s act or omission
in failing to provide adequate
advance warning to other road
users was careless on his part;
(2) that the 1st defendant
clearly owed a duty to all other
road users, not only motorists
using the left hand-side of the
road incidentally…”
This finding is, in my view,
untenable because earlier in the
judgment, the trial judge
definitely and rightly, in my
view, agreed with the defence
counsel and the authorities he
cited that “breach of the
provisions of the Highway Code
did not make or raise a
presumption of negligence and
therefore that even if the 1st
defendant was in breach of a
statutory regulation under the
Road Traffic Regulations, it
would not ipso facto amount to
negligence on his part.” See
regulation 92 of LI 953, and the
cases of Ivanov v Speedy
Travel and Tour Ltd [1974] 2
GLR 227 and Woledzi v
Akufo-Addo [1982-83] GLR
421.
In my opinion, there is ample
evidence on the record which
shows clearly whose negligence
caused the accident; and if the
trial judge had adverted his
mind to, and considered that
evidence, he would not have had
any difficulty in coming to a
just and fair decision. For
example, let us look at the
following evidence by PW1 under
cross-examination:
“Q On which side was the
on-coming vehicle?
A He was driving on my left.
Q What type was the
on-coming vehicle?
A It was a watonkyene.
Q What make was the vehicle?
A I cannot tell.
Q You actually went to the
extreme right to give way to
that vehicle?
A That is correct.
Q From exhibit A you could
have completely avoided this
accident if you were in fact
driving on your (right) side?
A There was dust when the
on-coming vehicle passed and
immediately I put on my
headlight and swerved to the
middle of the road then I saw
the stationary vehicle.
Q I put it to you that at
the time of the accident you
were in the wrong lane.
A I was in the middle of the
road.
Q If there was dust then the
dust would have been on your
left and not on your right?
A Dust covered the whole
road.
Q Then you were not avoiding
dust by going to the middle of
the road?
A I was so close to the
gutter on the right side that I
had to swerve to the middle of
the road.
Q Is it not true that there
was a vehicle coming from Wa
direction?
A I disagree.
Q From exhibit A you
collided with the stationary
vehicle head-on?
A That is true.
Q You state that when you
swerved to the middle of the
road, you saw the stationary
vehicle about 4 metres away from
you. Is it not true?
A It is true.
Q Then the collision would
have been sideways and not head
on?
A That is not correct.
Q The stationary vehicle was
actually on the left side of the
road and not in the middle?
A It was in the middle of
the road.
Q You were overtaking a
vehicle at the time of the
accident?
A There was no vehicle ahead
of me.”
From the exhaustive
cross-examination of PW1, the
driver of the
plaintiff-corporation quoted
above, two matters are quite
clear. The first is that PW1
admitted that although the road
was covered with a cloud of dust
when the on-coming vehicle
passed, yet instead of waiting
until the dust cleared, he
decided to proceed. This no
doubt falls short of what a
prudent or careful driver would
have done in the circumstances.
See Owusu v COP [1963] 1
GLR 113 at 115.
Secondly, not only did PW1
carelessly decide to proceed
even though the cloud of dust on
the road did not make it
possible for him to see ahead,
but he also carelessly swerved
from his own lane instead of
going straight ahead, or keeping
to his side of the road. As a
result of this swerving off his
side of the road, PW1 run
head-on into the 2nd defendants’
vehicle which had been parked on
the other side of the road,
actually out of the lane of PW1
at the time. Even though PW1
claimed that he only swerved to
the middle of the road, and that
the 2nd defendants’ vehicle was
in the middle of the road, yet
exhibit 1, the sketch made of
the scene by the police, shows
clearly that that cannot be
true. From the sketch, it is
clear that the distance from the
stationary vehicle to the end of
the road on the right side when
facing Wa, PW1’s side of the
road, measured 29 feet. The
width of the road was 58 feet 6
inches, according to exhibit 1
and the evidence of PW3, the
Police Inspector who tendered
this exhibit in evidence.
Exhibit 1 was signed by PW1.
This evidence has established
clearly that there was more than
sufficient space on the right
hand side of the road when
facing Wa, where PW1 was
proceeding, to enable him
continue his journey without any
trouble. If, therefore, PW1 had
not swerved from his side of the
road to the other side, he would
not have run head-on into the
second defendants’ vehicle which
was definitely parked on the
left side of the road,
completely out of PW1’s lane of
traffic. If these acts of PW1,
firstly by driving on when he
said the whole road was covered
with a cloud of dust and,
secondly, swerving off his lane
of traffic, are not acts of
negligence, I do not know what
acts can be.
In my opinion, if the trial
judge had examined the pieces of
evidence I have referred to and
had considered them, I do not
think that he would have come to
the conclusion he came to that
it was the 1st defendant’s
failure to provide advance
warning to other road users that
caused the accident. The
evidence on record shows that
the accident was caused by the
PW1’s negligence. The trial
judge, therefore, clearly erred
in finding otherwise. His
judgment cannot therefore stand.
Consequently, the appeal
succeeds on this ground.
As regards the award of damages,
I do not think it is necessary
to go into that. The appeal must
be allowed.
AMPIAH JA.
I agree.
ESSIEM JA.
I also agree.
Appeal allowed.
S Kwami Tetteh, Legal
Practitioner
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