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GHANA BAR REPORT 1993 -94 VOL 4

 

Ametoenenu and another vState Transport Corporation[1992 – 93] 4 G B R 1525 – 1531 C.A

 COURT OF APPEAL

AMPIAH, ESSIEM, ADJABENG JJA

8 APRIL 1993

 

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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