Negligence - Contributory negligence - Motor accident - Passenger’s arm protruding outside vehicle in motion - Whether passenger guilty of contributory negligence.

Negligence - Contributory negligence - Apportionment - Principles for apportionment.

The plaintiff, a passenger in the defendant’s vehicle, claimed damages against the defendant for negligent driving resulting in serious injuries and the amputation of his right arm. The defendant pleaded contributory negligence and averred that the plaintiff rested his arm on the door of the car in motion despite warning that his arm had protruded outside the car. The trial judge found that the defendant drove his car off the road and collided with a fallen tree and awarded damages in favour of the plaintiff but made no award for contributory negligence. On appeal by the defendant,

Held - (1) The conduct of the plaintiff in not keeping his right arm in the car when it was in motion would seem to portray him as a person who did not, in his own interest, take reasonable care of himself and contributed by this want of care to his own injuries. The trial judge was therefore wrong in not adverting his mind to the evidence that dealt with that issue. Blyth v Birmingham Water Works Co (1856) 11 Ch 781, Kyeremanten v Awudu [1972] 2 GLR 344, Jones v Livox Quarries Ltd (1952) 2 QB 608, Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291, Ivanov v Speedy Travel & Tour Limited [1974] 2 GLR 227 cited.

(2) Where apportionment of the liability became necessary, the claimant’s share in the responsibility was determined not only by the causative potency of his acts but also by the extent of blame. In such cases both the amount of the reduction of damages and the costs of the partially successful plaintiff were in the discretion of the trial judge. If the plaintiff’s right arm was in the car, no injury would have been caused to it. At the same time, if the defendant had not driven his car a little off the road, the car would not have had any contact with the fallen tree, to cause any harm to the plaintiff. In the circumstances the plaintiff’s share in the responsibility for the accident should be 20% and that of the defendant should be 80%. In other words, the damages awarded by the lower court should be reduced by 20% or one-fifth. Stapley v Gypsum Mines Ltd [1953] AC 633 HL, Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291 cited.

Cases referred to:

Blyth v Birmingham Water Works Co (1856) 11 Ch 781, 25 LJEx 212; 105 RR 791, 2 Jur (NS) 333.

Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291, 65 TLR 278, [1949] 1 All ER 620.

Ivanov v Speedy Travel & Tour Limited [1974] 2 GLR 227.

Jones v Livox Quarries Ltd [1952] 2 QB 608, [1952] 1 TR 1377, 96 SJ 344.

Kyerematen v Amadu [1972] 2 GLR 344.

Nance v British Columbia Electric Rail Co [1951] AC 601, [1951] 2 TLR 137, 95 SJ 543, [1951] 2 All ER 448.

Stapley v Gypsum Mines Ltd [1953] AC 663, [1953] 3 WLR 279, 97 SJ 486, [1953] 2 All ER 478, HL.

APPEAL from the judgment of the High Court.

E D Kom for the appellant.

S O K Oteng for the respondent.

AMMAH J. This is an appeal from the judgment of the High Court, Accra dated 26 July 1985. The plaintiff’s claim against the defendant was for ¢200,000 damages for negligent driving of Peugeot 504 saloon car No GZA 8230 by the defendant herein along the Anfoega-Dzana-Sovie motor road on 4 July 1981. At the time material to this case the plaintiff was an employee of the Ghana National Trading Corporation, Accra. The defendant owned Peugeot 504 saloon car No GZA 8230 which he was driving at the time when the accident which gave rise to this action happened, about 7.30 p.m. along the Anfoega-Dzana-Sovie motor road.

The parties were travelling from Accra to their hometown at Anfoega-Dzana to attend the defendant’s father’s funeral. The plaintiff was sitting by the defendant when somewhere between Kpandu and Anfoega-Dzana the accident happened. The plaintiff received serious injuries to his right arm which resulted in its amputation. He thereafter took this action. He had judgment and was awarded general and special damages with costs.

Being aggrieved by and dissatisfied with the judgment, the defendant has appealed to this court on the following grounds:

(a) The judgment is against the weight of evidence.

(b) The learned trial judge wrongly exercised his discretion in awarding damages which are excessive in the circumstances.

In this court the defendant-appellant was granted leave to argue the following additional grounds of appeal:

“(1) The learned trial judge failed to consider the issue of contributory negligence pleaded in paragraphs 4, 6 and 7 of the statement of defence; if he did, the judgment would have been otherwise.

(2) The trial judge failed to consider exhibit B which was part of the plaintiff’s case.

(3) In the absence of road measurements by the police the trial judge erred in holding that the road was wide enough to take both vehicles.”

In view of the submissions made by learned counsel for the defendant-appellant it is necessary to refer to the particulars of negligence pleaded as follows in paragraph 6 of the statement of claim:

“(A) Failing to keep a proper look out or any look out at all.

(B) Driving at excessive speed.

(C) Failing to stop to allow oncoming vehicle in its proper lane to pass when defendant’s lane was blocked by a fallen tree. This again was due to the excessiveness of the speed at which the defendant was driving at the material time.

(D) Failing to brake, swerve or otherwise to so control the said vehicle as to avoid a big fallen tree lying across the defendant’s lane but which had been cut into a stump.”

Learned counsel for the defendant-appellant referred to the particulars of negligence as pleaded and the police report, exhibit B tendered by the plaintiff, and submitted that there was a conflict between the evidence led and the pleadings referred to and the plaintiff’s case ought to have been dismissed. Learned counsel for the plaintiff-respondent held a contrary view.

The evidence shows that before the accident the defendant saw an oncoming articulator truck. According to the plaintiff, the defendant nearly drove into the oncoming vehicle. He therefore, swerved and went off the road on the near-side and ran into a tree which had been cut with a portion protruding into the edge of the road. He realised his right arm was out and hanging. He held it up with his left hand and asked the defendant to stop. He did so and came to his side. There was no general damage to the car. However, the rear side door and glasses and the door mudwings were grazed, buckled and broken. The back door and glass were however broken as per exhibit B. The right tyres of the car went off the road but the left tyres remained on the road. The plaintiff gave the impression that the end of the tree which had been cut entered the car and injured his right arm. This is because the glass of the right front door where he was sitting had been rolled down.

The plaintiff stated in evidence that he did not put his arm through the door of the car and the defendant never asked him not to put his hand on the door of the car.

The defendant’s evidence on this aspect of the case was this:

“When I got there, I saw the plaintiff’s right hand hanging over the back door inside the vehicle. The hand had been hit and had been flung around the door post behind the plaintiff, the glass in the back door broken and the hand was hanging inside the back of the car through the broken door glass.”

The nature of the severe injury to the plaintiff’s right arm which was almost severed at the time convinces me that the plaintiff was resting his right arm through the door of the car where the glass had been rolled down when it was hit by the protruding portion of the fallen tree after the car had swerved off the road. I say this because if that arm had been inside the car such an injury to the right arm could not have happened as there was no headlong collision with any vehicle, and the car in which the parties were travelling never somersaulted.

In my opinion if the learned trial judge had adverted his mind to the nature of the injury sustained by the plaintiff, the evidence in that regard and exhibit B, he would have come to the conclusion that the plaintiff had placed his hand over the right front door at the time. The plaintiff gave evidence that just before the accident he noticed a tree lying on the right side of the road, that is, on their side of the road. This fallen tree was not lying across the road but it would seem it had been cut and a portion was protruding onto the edge of the road. The reasonable inference would be that plaintiff was not able to remove his hand which was over the right front door when it came into contact with the protruding portion of the fallen tree.

The question is whether or not in such circumstances the plaintiff could be said to be negligent and contributed to the injuries he sustained.

It should be remembered that the defendant pleaded in paragraph 3 of his statement of defence “that the plaintiff’s arm was smashed as a result of plaintiff’s own negligence” and particulars of plaintiff’s negligence were pleaded in paragraph 4 of the statement of defence as follows:

“... plaintiff was negligent in that:

(a) plaintiff negligently left his arm resting on the door of the car protruding outside the car.

(b) plaintiff failed to heed the persistent warning of the defendant not to rest his arm on the door of the car protruding outside the car.”

In Blyth v Birmingham Water Works Co (1856) 11 Ch 781, Anderson B explained negligence to be:

“Omission to do something which a reasonable man guided upon the considerations which regulate the conduct of human affairs, would do or doing something which a prudent and reasonable person would not do.”

This principle of law has been cited with approval in Kyerematen v Awudu [1972] 2 GLR 344. The plaintiff has not cross-appealed in this case.

The plaintiff pleaded and gave evidence that the defendant was speeding at the time of the accident. It is true that no sketch of the scene was tendered. But I do not think, if the defendant had been having a proper lookout of the road and drove slowly after by-passing the articulator vehicle from the opposite direction, he would have found himself somewhat off the road for the fallen tree to hit the car and the plaintiff’s arm. I think there is evidence, which the learned trial judge accepted and believed, to find the defendant negligent and I do not think that should be disturbed.

In the particular circumstances of this case the question to ask is whether the plaintiff in putting his hand over the door of the car as it was moving acted in a responsible manner and took reasonable care for his own safety or did something which a reasonable person would not have done, especially when he said before the accident he saw the fallen tree protruding into that part of the road. It would appear the plaintiff exposed his hand to risk; see Jones v Livox Quarries Ltd [1952] 2 QB 608. In Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291 the facts were that Davies was a dustman employed in a corporation dust cart to collect refuse and empty it into the cart. Steps were provided on the cart to enable the dust men to tip the refuse into it but the dustmen were forbidden to ride on them. In breach of his instructions, Davies was riding on the steps on the offside of the lorry. An omnibus began to overtake the lorry which had just started to take the right hand turn and as a result of the combined negligence of the drivers of both vehicles Davies was trapped and killed. The trial judge found that there was no contributory negligence on the part of Davies but in the Court of Appeal this was reversed and the damages awarded in respect of his death were reduced by one fifth. The facts in the Davies’ case were somewhat similar to the facts herein. (See Clerk and Lindsell on Torts 12 edition paragraph 823).

In my opinion there is evidence to establish contributory negligence against the plaintiff and the learned trial judge should have so held. Following the Davies case, I would reduce the damages awarded by the trial judge by one-fifth.

Subject to this variation, the appeal is dismissed.

AMUAH JA. I agree. The plaintiff suffered serious injuries resulting in the amputation of his right arm due to the negligent driving of the defendant-driver. The defendant-driver pleaded contributory negligence and did not appeal against quantum.

The High Court held that the defendant-driver was solely to blame for the accident. Among the additional grounds filed was whether the plaintiff’s failure to pull in his arm when the vehicle was in motion could be said to have contributed to the injuries he received.

I hold the view that it did. In Davies v Swan Motor & Co (Swansea) Ltd [1949] 2 KB 291 Denning LJ as he then was said:

“Although these negligent acts were the cause of the collision what was the cause of the damage to the deceased man? He was as the judge found, in a position which he must have known was a very dangerous position in defiance of the dictates of common sense. If he had not been in that position he would not have been injured. His position was certainly one of the causes of the damage. It would therefore appear that the damage was caused by the fault of all the three.”

A similar case is Jones v Livox Quarries Ltd [1952] 2 QB 608 where the plaintiff was held to be contributorily negligent in riding on the tow-bar at the back of a traxcavator vehicle when the driver of another vehicle negligently drove into the back of it, injuring the plaintiff. In both cases the plaintiffs’ injuries would not have occurred at all if they had not been in the position they were. In both cases the damages awarded were reduced by 20 per cent. I adopt it in this case as I consider it fair and equitable. In the former case the plaintiff died.

ADJABENG JA. There would have been no difficulty in simply dismissing this appeal if the only issue raised at the trial was whether or not the accident resulting in the amputation of the plaintiff’s right arm was caused by the negligent driving of the defendant. I find no doubt about the trial judge’s finding that the defendant-appellant was negligent as this finding is amply supported by the evidence on the record. The trial judge, after evaluating the evidence on the issue, concluded as follows:

“I am satisfied that the defendant did at that point, and just before the accident, fail to properly manage and control his vehicle, and thus carelessly ran same into that fallen tree trunk lying on the edge of the road...”

There was, however, another issue raised at the trial. This was whether or not the plaintiff was guilty of contributory negligence. This issue was raised in paragraphs 4, 6 and 7 of the statement of defence. The issue was also raised in the address of the defendant’s counsel when he submitted that “plaintiff had failed to take care of his arm and is solely to blame. If the car itself was not damaged then the plaintiff must have left his arm hanging outside the car”.

It was seriously argued in this appeal that the learned trial judge failed to consider the issue of contributory negligence raised by the defendant and that if he had done so his judgment would have been otherwise. It was also argued that the judge failed to consider exhibit B, the police report, which contains the Testing Officer’s report on the nature of the damage caused to the defendant’s car as a result of the accident. According to this report, the “nearside door and glass and door mudwings were grazed, buckled and broken”. The evidence by the parties gives a clearer picture. The plaintiff in his evidence-in-chief said categorically that “there was no damage to the defendant’s car and defendant drove me to Anfoega Hospital”. Under cross-examination, he said:

“I sat in the right front seat of the defendant’s vehicle. The glass in the front right door had been rolled down. I was sitting in the car and the end of the tree entered the car and injured my right arm. The windscreen of the car was not broken. The back window, to my knowledge, at the time got broken.”

Now, how did it happen that the end of the tree entered the car and injured the plaintiff’s arm in the car but it neither broke the windscreen nor wrecked the front door frame, and yet the back window was broken? Perhaps the defendant’s evidence will clarify the position.

Describing what he saw after the impact, the defendant said in his evidence as follows:

“When I got there I saw the plaintiff’s right hand hanging over the back door inside the vehicle. The hand had been hit and had been flung around the door post behind the plaintiff, the back door glass broken and the hand was hanging inside the back of the car through the broken door glass. I took hold of the plaintiff’s hand which was badly broken around the elbow up to the wrist and brought it back to the front seat, it was almost severed but hanging by the flesh.”

Even though the plaintiff denied that he had placed his right arm on the door of the car during the journey or put it through the door thus making it protrude, yet the evidence adduced by both parties and the police report on the accident seem to suggest that the plaintiff’s said arm was protruding out of the car at the time it was hit by the tree described by the plaintiff. For, it seems clear that if the plaintiff’s right arm was in the car as the left was, it would not have been hit, and the accident would have caused no more damage than the grazing or denting of the right side doors and mudguards of the defendant’s car. There would have been no injury to the plaintiff. I agree with the view expressed by my learned brother, Ammah J in his judgment, that if the trial judge had adverted his mind to the nature of the injury sustained by the plaintiff, the evidence adduced in that regard, and exhibit B, the police report, he would have come to the conclusion that the plaintiff had placed his hand over the right front door of the car at the time, and that he was not able to remove it before it was hit by the tree, even though he had seen the tree before he was hit, according to his own evidence. That conduct by the plaintiff in not keeping his right arm in the car when it was in motion would seem to portray him as a person who did not, in his own interest, take reasonable care of himself and contributed by this want of care to his own injuries; see Ivanov v Speedy Travel & Tour Limited [1974] 2 GLR 227 at page 233, Davies v Swan Motor Co (Swansea) Limited [1949] 2 KB 291, CA, and Nance v British Columbia Electric Rail Co [1951] AC 601, at page 611, PC.

In the light of the evidence on the record in this appeal, I have no hesitation in supporting the decision that the plaintiff contributed to his injury. The trial judge was therefore wrong in not adverting his mind to the evidence that dealt with that issue. The appeal ought, therefore, to be allowed only to that extent.

The next and last question to be answered is: to what extent did the plaintiff contribute to his injury? As I have already observed, if the plaintiff’s right arm was in the car, no injury would have been caused to it. At the same time, if the defendant had not driven his car a little off the road, the car would not have had any contact with the fallen tree which had been cut to cause any harm to the plaintiff. It is stated in Halsbury’s Laws of England that where apportionment of the liability becomes necessary, the claimant’s share in the responsibility is determined not only by the causative potency of his acts but also by their blameworthiness. In such cases, it is stated, both the amount of the reduction of damages and the costs of the partially successful plaintiff are in the discretion of the trial judge; see Halsbury’s Laws of England, 3rd edition, Volume 28, paragraph 94, and the cases of Davies v Swan Motor Co (Swansea) Ltd (supra) and Stapley v Gypsum Mines Ltd [1953] AC 663, HL, at page 682, cited therein. Having considered these authorities, and the evidence in this matter, I agree that the plaintiff’s share in the responsibility for the accident should be 20% and that of the defendant should be 80%. In other words, the damages awarded by the lower court should be reduced by 20% or one-fifth. Subject to this reduction the appeal must be dismissed.

Appeal dismissed; award varied.

S Kwami Tetteh, Legal Practitioner.