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By his amended writ of summons,
the plaintiff, Paul Kwesi
Agyekum, claims from the
defendants jointly and severally
the following reliefs:
“a. Restitution of his Toyota
Tercel which the Police found it
to be “beyond economic repairs”.
b. Special claims for monies
expended on medical treatment
and drugs on medication he has
been referred to which he
continues to go to for treatment
to the tune of GH˘22,568.00.
c. General damages of
GH˘50,000.00 for injury
including having been incapable
of bending his leg unless he
undergoes a series of surgery
which he has no money to do so.
d. General damages of
GH˘50,000.00 for pain and
suffering as well as travelling
expenses from and to various
hospitals.
e. General damages of
GH˘20,000.00 for the need of his
wife to have to suspend her
petty trading and instead to
have to expend her capital to
take care of him in the various
hospitals.
f. General damages of
GH˘50,000.00 for the livelihood
and care of his dependants for
the rest of his life since he
has been rendered incapable of
working to look after them.
g. Loss of use for the period
that the Plaintiff has been
deprived of the use of his car
i.e. from date of the accident.
h. Costs.”
The defendants are John Ayitey
and Gellog Limited.
By his amended statements of
claim, the plaintiff avers that
he was the Purchasing Manager of
Ayensu River Estates, earning a
monthly salary of GH˘400.00 as
at 10-04-2008. On the said
10-04-2008, he was driving his
personal Toyota Tercel car with
registration number GR 314 C
when a Man Diesel Tipper Truck
with registration number GT 714
W owned by Gellog Limited (the 2nd
defendant) and driven by John
Ayitey (the 1st
defendant) crushed into him at
Bonsaso No. 1 township in the
Western Region. He was rushed to
Tarkwa Government Hospital in a
state of unconsciousness and was
later referred to the 37
Military Hospital in Accra
because of the gravity of the
injuries sustained. He was,
also, referred to Kumasi Komfo
Anokye Hospital and, also, to
Enyiresi Government Hospital and
was admitted in all these
hospitals and given various
treatments.
The plaintiff avers, further,
that he was forty-six (46) years
old at the time of the accident.
He is married with five (5)
children, all minors, then aged
between 1 year 3 months and 16
years and he is the sole main
breadwinner of the whole family
with his wife supporting with
her petty trading with the
little capital he had been able
to eke out of his income for
her.
The plaintiff says that the 1st
defendant was arrested by the
Bonsaso Police for
investigations. Investigations
revealed that the 1st
defendant crushed into his car
as a result of his attempt to
overtake a vehicle ahead of him
and by so doing, the 1st
defendant occupied the lane of
the opposite on coming vehicle
of the plaintiff and that
resulted in the 1st
defendant crushing into his car,
rendering same beyond economic
repairs and also causing a near
fatal personal injury to him
rendering him completely and
physically incapacitated.
The plaintiff, again, avers that
the accident further caused his
school going children to drop
out of school since April, 2008
because of financial
constraints. His wife has to
stop her petty trading, leave
their children including the
baby to her sister to take care
of them in Accra to enable her
to fully take care of him at the
various hospitals and is still
doing so even at home.
The plaintiff says he is still
undergoing medication for the
permanent pains and headaches he
has been forced to endure for
the past period and has been
told by doctors as bound to be
with him for the rest of his
life.
The plaintiff has, therefore,
instituted this action claiming
the reliefs referred to herein
before.
The defendants deny all the
averments of the plaintiff and
put the plaintiff to strict
proof of same. The defendants
state that, although the Police
Report says the plaintiff’s
vehicle was damaged beyond
economic repairs, they dispute
same. The defendants, again,
state that the 1st
defendant was not the cause of
the accident as he was not
negligent and that it was
another commercial vehicle which
suddenly drove negligently to
the road which caused the
accident.
At the application for
directions, the following issues
were set down for trial:
“a. Whether or not the
plaintiff’s car, Toyota Tercel
No. GR 314 C driven by himself
on 10-04-2008 was driven into a
Man Diesel Truck No. GT 714 W
owned by the 2nd
defendant but at the time driven
by the 1st defendant
at Bonsaso No. 1.
b. Whether or not as a result of
the driver of the Man Diesel
driving into the on-coming car
of the plaintiff, the latter
sustained series of injuries and
was rushed to Tarkwa Government
Hospital for treatment.
c. Whether or not the plaintiff
has, as a result of the injuries
sustained, been referred to
Komfo Anokye Hospital, Kumasi,
and also Enyiresi Government
Hospital, where he has been made
to undergo a series of surgeries
and therapy.
d. Whether or not the serious
injuries sustained by the
plaintiff was as a result of the
negligence on the part of the 1st
defendant.
e. Whether or not as a result of
the injuries sustained, the
plaintiff has been rendered
permanently incapacitated.
f. Whether or not at the time of
the incident the plaintiff was
the Purchasing Manager of Ayensu
River Limited.
g. Whether or not the 1st
defendant, who was the driver of
the Man Diesel, was an agent of
the 2nd defendant, at
the time of the incident.
h. Whether or not the 2nd
defendant, as the principal of
the 1st defendant is
vicariously liable for the
claims of the plaintiff
resulting from the act of the 1st
defendant.
i. Whether or not the Police,
who examined the two vehicles
involved, and upon their expert
knowledge, found out that the
plaintiff’s vehicle was damaged
beyond economic repairs.
j. Whether or not the plaintiff
is entitled to his claims.
k. Any further or other issues
raised by the pleadings in this
suit.”
To prove his case, the plaintiff
testified that he was a
Purchasing Manager of Ayensu
River Estates at Tarkwa. On
10-04-2008, his employer sent
him to Asendowa. On his return
journey to Tarkwa and on
reaching Bonsaso No. 1 township,
he had an accident. The
plaintiff was driving a Toyota
Tercel with Registration No. GR
314 C.
Describing how the accident
occurred, the plaintiff’s
testimony is that when he got to
Bonsaso No. 1 township he
spotted an articulator truck
(that is Man Diesel Tipper Truck
No. GT 714 W) coming from the
opposite direction on top speed.
The articulator truck ran into
his car and he lost
consciousness, instantly. When
he gained consciousness, he
realized he was at Tarkwa
Government Hospital and his legs
and feet were bandaged. He was
later referred to 37 Military
Hospital because of the
seriousness of his injuries
where he was admitted for about
three to four months. As a
result of financial constraints,
he was discharged although he
was not fully healed.
Subsequently, he attended Komfo
Anokye Hospital in Kumasi but
the doctor asked him to meet him
at Enyiresi. When he met the
doctor, he was admitted for one
month and discharged for he
could not pay for the entire
treatment which was to last for
three months.
The plaintiff tendered in
evidence pictures of his state
after the accident, a referral
letter from Tarkwa Government
Hospital and a Medical Report
from Enyiresi Hospital as
Exhibits A, B, and C,
respectively.
After he went through the above
treatments, he went to the
police for the Accident Report
which he tendered as Exhibit D.
It was upon receipt of Exhibit A
that he got to know that it was
John Ayitey (1st
defendant) who was driving the
articulator truck and the
vehicle is the property of
Gellog Limited (the 2nd
defendant). He, therefore, went
to the 2nd defendant
and the latter admitted that the
articulator was its property and
the 1st defendant is
their employee and he gave the 2nd
defendant a copy of Exhibit D.
The plaintiff, also, tendered in
evidence a picture of his
damaged car which Exhibit D
described as beyond economic
repairs, as Exhibit E. He, also,
tendered receipts of expenditure
he made on his treatment as
Exhibits G, G1 to G10 and said
he misplaced some.
The plaintiff, also, tendered a
pay slip to show the salary he
was earning at Ayensu River
Estates at the time of the
accident as Exhibit H. He, also,
testified that he has a wife and
five children, all minors, and
he was taking care of all them
before the accident. After the
accident which incapacitated
him, his wife who was selling
eggs in a container has to sell
the container to take care of
the family. As a result, all the
children are at home without
attending school.
During cross-examination, the
plaintiff says that, since the
accident, he did not work for
his employer as he was replaced
with another person and the last
salary he received was in March,
2008.
The plaintiff, also, said the
accident happened in a curve
where the articulator driver was
overtaking another vehicle so
the 1st defendant
caused the accident.
The defendants testified through
the 1st defendant and
one Tettey Simon. The evidence
of the 1st defendant
is that he was the driving the
articulator from Takoradi
towards Tarkwa in the company of
his brother, Tettey Simon
(D.W.1). When they got to
Bonsaso, he realized a Hyundai
car, which was parked ahead,
moved onto the road. When he got
to the Hyundai car, he swerved
it and realized that another car
(the plaintiff’s car) was coming
from the opposite direction so
he tried to swerve it but it hit
the trailer tyre. The
plaintiff’s car was swerving
from left to right before
hitting the tyre of the trailer.
The 1st defendant
denies that the accident
happened in the lane of the
plaintiff. He, also, denies
overtaking the Hyundai car and
says he was trying to by pass it
when the accident happened. 1st
defendant, therefore, denies
being the cause of the accident
and says he and his brother gave
statements to the police but,
after he was bailed, he did not
hear anything again about the
case.
During cross-examination, the 1st
defendant admitted that he went
to the scene of the accident
with the police. He, also, says
he knows that the police wrote a
report and he even saw it. He,
also, identified the picture of
the plaintiff’s damaged car
(Exhibit E) as the state of the
car after the accident. The 1st
defendant says the accident was
caused by the Hyundai car which
was parked by the road side
which he tried to swerve.
D.W.1 testified that he is a
driver-mate to the 1st
defendant and was in the vehicle
with him when the accident
occurred at Bonsaso. Describing
how the accident occurred, D.W.1
says when they got to Bonsaso,
there was a bus stop where a car
was parked. They by-passed the
car then saw a private car
coming from the opposite
direction swerving from left to
right. Then, the private car ran
into the back tyre of the
driver’s side of their truck.
D.W.1 says the accident occurred
on their lane not the private
car’s lane. He, also, denies
that the 1st
defendant overtook any vehicle
and says the car the 1st
defendant by-passed was the one
parked at the bus stop.
From the evidence of the
plaintiff on one hand and that
of the defendants on the other
hand, the only factual dispute
is whether or not the 1st
defendant overtook a vehicle at
Bonsaso No. 1 town and ran into
the plaintiff who was coming
from the opposite direction in
plaintiff’s lane.
The plaintiff’s testimony is
that the 1st
defendant overtook a vehicle and
drove into him in his lane. His
testimony is supported by the
Police Accident Report (Exhibit
D). In Exhibit D, the police
gave the brief facts of the case
as follows:
“On 10/04/2008, at about 10:55
a.m, suspect driver John Ayitey
drove Man Diesel Tipper Truck
with registration number GT 714.
W from Takoradi to Tarkwa and on
reaching Bonsaso No. 1 township,
he sighted a vehicle ahead of
him which he tried to overtake
it and in the process occupied
the lane of on coming vehicle
with registration number GR
314-C driven by suspect driver
Kwasi Agyekum and crushed into
it. Suspect driver Kwasi Agyekum
sustained serious injuries and
was rushed to Tarkwa Government
Hospital for treatment. The same
day he was referred to 37
Military Hospital for further
treatment.”
The 1st defendant and
D.W.1 gave inconsistent
testimonies as to how the
accident occurred. The 1st
defendant, in his evidence,
first testified that when he got
to Bonsasu he realized that
there was a Hyundai car ahead of
him. On approaching the Hyundai
car, it moved onto the road but
not into the middle of the road
but on the side of the road. As
soon as he approached the
Hyundai car, he swerved it and
realized another car was coming
in front of him.
The only reasonable meaning to
read into this testimony is that
the 1st defendant
swerved the Hyundai car ahead of
him (which is, he overtook the
Hyundai car) and then saw the
on-coming car from the opposite
direction. Once he overtook the
Hyundai car, he left his lane
and entered the lane of the
on-coming vehicle. This confirms
the plaintiff’s evidence that
the point of impact is a curve
so the 1st defendant
overtook the Hyundai car in the
curve and noticed there was an
oncoming vehicle. So, for the
same 1st defendant to
deny in the same evidence that
he did not overtake the Hyundai
car only shows that he does not
wish to be truthful to the
court. He is only trying to
throw dust into the eyes of the
court.
D.W.1 totally contradicted the 1st
defendant’s evidence and
testified that the Hyundai car
was parked. Most probably, if it
was parked, it was parked off
the road.
The 1st defendant and
the witness are simply not
credible witnesses. They are
very evasive and economical with
the truth.
Accordingly, I find as a fact
that the 1st
defendant overtook the Hyundai
car in a curve in Bonsaso town.
Being a curve, he did not see
that the plaintiff was coming
from the opposite direction. The
1st defendant then
ran his vehicle into that of the
plaintiff in the latter’s lane
of traffic. The evidence by the
1st defendant and the
witness that plaintiff’s car was
swerving from left to right is a
make up story.
Following from the above
findings of facts, could it be
said that the 1st
defendant was negligent in his
driving on that occasion?
There certainly are numerous
authorities on the law of
negligence for which one could
say that it is now trite that
negligence amounts to a conduct
by a person which is tantamount
to a breach of duty to another
resulting in damages being
sustained by the latter provided
that the damage is not remote.
In Aboague v. Engmann and
Another [1989-90] 1 GLR 416
this court per Brobbey J. (as he
then was) rightly, in my view,
adopted the definition of
negligence in Blyth v.
Birmingham Waterworks Co. (1856)
11 Ex Ch 781 at 784 where Baron
Alderson stated the law thus:
“Negligence is the omission to
do something which a reasonable
man, guided upon those
considerations which ordinarily
regulate the conduct of human
affairs, would do, or doing
something which a prudent and
reasonable man would not do.”
Again, Brobbey J. adopted the
definition of negligence by
Pearson J. in Hazell v.
British Transport Commission,
[1958] 1 WLR 169 at page
171 thus:
“The basic rule is that
negligence consists in doing
something which a reasonable man
would not have done in that
situation, or omitting to do
something which a reasonable man
would have done in that
situation.”
What constitutes negligence is,
therefore, a question of fact as
was stated by the Court of
Appeal in West African
Bakery v. Miezah [1972] 1 GLR 78.
At page 82, Azu Crabbe, J. S. C.
stated thus:
“The question whether a
particular driver on the highway
was exercising that degree of
care and attention which a
reasonable and prudent driver
would exercise in any particular
circumstances is one of fact.”
In the instant case, the 1st
defendant should not have
overtaken a vehicle in a curve
on a highway for he could not
see ahead to know whether there
was an oncoming vehicle. This
conduct of the 1st
defendant, in my view,
constitutes negligence.
Having found that the 1st
defendant, who is a servant of
the 2nd defendant and
who was driving in the course of
duty, was negligent, both
defendants are therefore liable
for negligence. I would now
proceed to deal with the reliefs
the plaintiff is claiming.
The first claim is for
restitution of the plaintiff’s
Toyota Tercel which has been
declared by the police accident
report to be beyond economic
repairs and which I find to be
true. Authorities abound in our
jurisprudence to support this
claim. Thus, in Borkloe
and Another v. Norgbedzi and
Another [1982-83] GLR 1003,
the Court of Appeal held that
“the basic principle of the
measure of damages in cases of
loss of chattels was restitution
integrum, i.e. the owner should
recover such a sum as would
replace him, so far as could be
done by compensation in money,
in the same position as if the
loss has not been inflicted on
him, subject to the rules of law
as to remoteness of damages.”
The plaintiff is thus entitled,
as a matter of principle, to the
replacement value of his car
that was damaged beyond economic
repairs in the accident. So, the
question is what the replacement
value of the car would be. In
this regard, evidence has to be
led on the pre-accident value of
the car to assist the court but
this the plaintiff failed to do.
In this situation, this court
has held that the plaintiff
would be entitled to nominal
damages. In Norgbey and
Another v. Asante and Another
[1992] 1GLR 506, Acquah
J (as he then was) in a similar
situation held thus:
“A successful proof of a special
damage involved basically proof
of the subject matter of the
special damage, and then proof
of the value claimed for that
subject matter. Accordingly,
where the claimant in a claim
for special damages, succeeded
in proving both the
subject-matter and the value, he
was entitled to be awarded the
value he claimed. However, where
he succeeded in proving only the
subject matter but failed to
prove its value, the claimant
would be entitled to nominal
damages which should be a
reasonable fair approximation of
the pre-damage value of the
property. Therefore, where it
was only proved, as in the
instant case, that the vehicle
was destroyed beyond repairs,
the nominal damages to which the
plaintiffs were entitled was the
market or replacement value of
the vehicle.”
In this case, the plaintiff has
not been helpful at all on the
amount he is claiming as
replacement value. He has not
stated any amount in the writ or
statement of claim, he has not
stated when he bought the car
whether brand new or what is
usually called “home-used
second-hand”, how long he used
it, the cost of the vehicle at
the time of purchase or its
value currently, and so on. It
thus leaves the court with
extreme difficulty in making an
award. But the court has to make
an award for which I award the
sum of GH˘10,000.00 as the
replacement value for the
plaintiff’s Toyota Tercel car
that was damaged beyond economic
repairs.
The next claim that follows from
the above is the claim for
damages for loss of use of the
vehicle. The plaintiff, by his
amended writ of summons, claims
“loss of use for the period that
the plaintiff has been deprived
of the use of his car i.e. from
date of the accident.” The
plaintiff, again, did not lead
any evidence on how much he
spent hiring alternative means
of transport. He did not lead
any evidence as to the
availability or otherwise of the
type of his vehicle in the
market. He, again, did not lead
any evidence as to why he never
procured another car. I take
judicial notice, however, of the
fact that Toyota Tercel cars are
readily in the market so
plaintiff could have acquired
one if he wanted to and had the
means. Also, it is evident from
the plaintiff’s evidence that he
was in financial difficulties so
he even had to be discharged
from the hospitals as a result
of that. So, the reason for the
plaintiff’s inability to acquire
a similar one is poverty. He
cannot afford it.
However, the law is that the
plaintiff cannot visit his
poverty on the defendants by
claiming damages for loss of use
of his car from the date of the
accident till the time he
acquires another one. Brobbey J
(as he then was) in
Hammond v. Amuah and Another
[1991] 1 GLR 89, on this
issue, stated the law thus:
“The plaintiff claimed loss of
use from the date of the
accident, till the date of
judgment. … It is a well-settled
principle that inability to
procure an alternative vehicle
which is attributable to
impecuniosity is too remote to
be taken into account in
assessing damages: see West
African Bakery v. Miezah [1972]
1 GLR 78 CA”.
In this case, the court awarded
damages for loss of use for only
two weeks at a rate the
plaintiff indicated in his claim
he spent on alternative
transportation.
Similarly, in Norgbey and
Another v. Asante and Another,
supra, this court per Acquah J.
(as he then was) held thus:
“In determining the length of
time for which loss of use of a
damaged vehicle should be
granted, the court considered
what was reasonable, i.e. fair
and just, in the peculiar
circumstances of each case. In
the instant case, the driver’s
hospitalization and the receipt
of the police report had no
relevance to the procurement of
another vehicle. What was needed
was a testing officer’s report.
Accordingly, having regard to
the fact that the second
plaintiff realized soon after
the accident that his vehicle
was totally damaged, and
allowing him reasonable time to
recover from the shock of the
accident and to obtain the
testing officer’s report, he
should have re-organised himself
to procure another vehicle
within 90 days from the date of
the accident. Consequently, the
second plaintiff would be
allowed 90 days as loss of use
at ˘5,000.00 daily. Dictum of
Azu Crabbe J.S.C. (as he then
was) in West African Bakery v.
Miezah [1972] 1 GLR 78 at 97, C.
A. applied.”
In the Norgbey case
above, the claimant therein
pleaded and gave evidence that
he was earning ˘8,000.00 a day.
So, in awarding him damages for
loss of use, the court, after
estimating the reasonable period
reduced the daily earnings to
˘5,000.00. It was a commercial
vehicle.
This court in the instant case
has to determine the reasonable
time to grant loss of use of the
plaintiff’s vehicle. In
West African Bakery v. Miezah,
supra, Azu Crabbe, J. S. C. (as
he then was) said of reasonable
time at page 97, thus:
“In my judgment, ‘reasonable
time’ is the period which the
court considers to be fair and
just in ‘the peculiar
circumstances of each case.’ The
law (the common law) is the
embodiment of the common sense
of the community, and the
determination of a length of
time must accord with the common
sense. In the ultimate analysis,
therefore, the question what is
a reasonable time is one for the
discretion of the court.”
In the Norgbey case,
supra, the claimant of the
vehicle was not the driver who
had the accident and was
hospitalized. It was the vehicle
owner as such the court held
that the claimant didn’t need to
wait for the discharge of the
driver from the hospital. The
instant case is distinguishable
in that the plaintiff is the
owner of the vehicle, (albeit
registered in his wife’s name),
and had the accident and was
hospitalized in three different
hospitals for months. He
obtained the police accident
report on 16-04-2009 of course
after his condition improved a
bit. So, in the peculiar
circumstances of this case
(unlike the Norgbey
case) the hospitalization of the
plaintiff and obtaining the
police accident report are
relevant factors to consider in
determining reasonable time.
The accident occurred on
10-04-2008 and the plaintiff
obtained the police accident
report on 16-04-2009 (about a
period of one year). I would,
therefore, allow the plaintiff
one year as loss of use.
As to the amount to award for
the one year, the plaintiff, as
I said earlier, has not helped
the court with any evidence as
to how much he spent on
alternative transportation. But
I take it that as the plaintiff
does not go to work anymore, he
would not be taking car every
now and then. Of course, he
would have to travel around for
other matters such as attending
hospital. The family could also
use the vehicle. The plaintiff
would still, therefore, be
entitled to reasonable damages
for loss of use. This principle
has been stated by the Supreme
Court in Borketey v.
Achinivu and Others [1966] GLR
92 where Apaloo J.S.C.
(as he then was) in delivering
the judgment of the court stated
thus:
“In my opinion, the true rule of
law is … where a chattel is
completely destroyed or so
damaged as not to be worth
repairing, the measure of
damages is the value of the
chattel together with any
consequential loss following on
the destruction of the chattel.
By this principle, where the
chattel is a private car which
is permanently lost to its
owner, the consequential loss
will be the cost of hiring
alternative transport until the
procurement of a new car and
where the car is a taxi, the
consequential loss will be the
loss of earnings until such time
that another taxi car can
reasonably be obtained.”
The Supreme Court, further, held
that the claimant has to take
reasonable steps to mitigate the
loss and he cannot claim any
part of the damage which is due
to his neglect to take such
steps.
Taking steps to mitigate the
loss has to do with the length
of time that the plaintiff is
entitled to recover from the
defendants his loss of earnings.
I have already decided that the
length of time I would award the
plaintiff is one year. I would
award the plaintiff GH˘12,000.00
for the one year loss of use of
his vehicle.
The other claims of the
plaintiff are for special and
general damages for personal
injury.
By way of special damages, the
plaintiff claims for the sum of
GH˘22,568.00 being monies he
spent on medical treatment and
drugs on medication. The law is
that special damages have to be
pleaded and proved. In the
statement of claim, the
plaintiff did not disclose the
particulars of the special
damages which is expected of him
by the rules of practice. In
evidence, the plaintiff tendered
receipts to prove the special
damage of GH˘22,568.00. However,
the total sum disclosed by the
receipts is GH˘2,237.68 and he
claimed that he had misplaced
some of the receipts. He did not
tell the court the value in
those receipts that he has
misplaced. The difference
between the amount disclosed in
the receipts and the amount
claimed is so huge that it would
not be probable that he really
spent the sum claimed.
I, therefore, find that the
plaintiff spent GH˘ 2,237.68 on
his treatment and for which he
is entitled to recover from the
defendants.
For general damages, the court
looks at the nature of the
injuries sustained by the
plaintiff and for this the
medical report is very crucial.
The court, also, looks at the
effect of the injuries on the
plaintiff as well as his family,
work and social life.
The nature of the injuries as
disclosed by the medical report
(Exhibit C) is this:
“Clinically the true joint was
ankylosed and the supracondylar
fracture had not joined. On
30-09-2008 he went for surgery;
… external fixation for knee
arthredosis and compression at
the level of S/C
pseudoarthrosis. After an
uneventful postoperatory, the
patient was discharged on the 6th
October 2008.
Currently, the fusion at the
knee and supracondylar level is
achieved but there is fistula
due to a piece of devitalized
bone that would have to be
surgically removed.
Permanent disability percentage
50%” (my emphasis)
I do not understand most of the
medical terms used in this
report for the plaintiff could
not bring the medical officer
who issued it to testify and
explain. So, I would not have
appreciated the seriousness of
the injuries the plaintiff
sustained but for the statement
that his permanent disability
percentage is rated at 50%. What
I understand by this is that the
plaintiff can now do half of the
things he used to do before the
accident.
Furthermore, the plaintiff gave
evidence, which was not
seriously challenged, that when
the accident occurred he became
instantly unconscious only to
regain consciousness at the
Tarkwa Government Hospital. He
was hospitalized for three to
four months at the 37 Military
Hospital and one month at the
Enyeresi Government Hospital. On
both occasions, he was
discharged not because the
doctors had completed the
treatments but on grounds that
he could not pay for the
medication.
I have seen the plaintiff in
court. He still limbs to court
and he looks, in my lay man’s
eye, unfit. This seems to
confirm his evidence that he is
not at the hospital as a result
of financial constraints.
The above evidence on the
medical condition of the
plaintiff clearly shows that he
suffered considerably and
continues to suffer as a result
of the accident.
The plaintiff, also, testified
that he was the Purchasing
Manager of Ayensu River Estates
earning a net monthly salary of
GH˘338.20 but since April, 2008
when the accident occurred he
has not been paid for he has
been replaced with a different
person.
Plaintiff, from his testimony,
is married with five children,
all minors, but all the children
have dropped out of school
because of financial
constraints. His wife had to
sell a container in which she
used to sell eggs to take care
of the family.
The principle for assessment of
damages for personal injuries
has been stated by Abban J. (as
he then was) in Quarcoo v.
Appiah [1972] 2GLR 30
thus:
“The principle as to the measure
of damages in cases of physical
injuries is not in doubt. The
damages which the court must
award are those which so far as
money can compensate, will give
the inurred party reparation for
the wrongful act and for all the
natural and direct consequences
of the wrongful act.”
In the instant case, the
plaintiff is a middle aged man
whose eldest child was 14 years
at the time of the accident. He
was admitted at the hospital for
about five months and discharged
as a result of financial
difficulties. His permanent
incapacity was assessed at 50%
with the particulars of the
injuries detailed in the medical
report.
It is, therefore, obvious that
the plaintiff would have
suffered considerably and
continues to suffer as at now as
he has no money to attend to a
health facility. I think an
amount of GH˘20,000.00 would be
a fair and reasonable
compensation for pain and
suffering.
The plaintiff has not led any
evidence on any loss of
amenities of life. The courts
have been making awards for loss
of amenities of life
notwithstanding the lack of
evidence – See Quarcoo v.
Appiah, supra. From the
circumstances of this case, I
award the plaintiff GH˘3,000.00
for loss of amenities of life.
The Quarcoo v. Appiah
case, also, stated as a limb of
general damages for personal
injuries, loss of earnings, both
actual and prospective. In the
instant case, the plaintiff gave
evidence of his monthly income
as GH˘338.20. Since April, 2008,
he has not been paid. So for
loss of earnings, the plaintiff
is awarded the sum of GH˘12,175.20
covering the period of April,
2008 to March, 2011 (36 months).
Furthermore, from the nature of
the injury suffered by the
plaintiff as stated above, his
earning capacity would obviously
be affected. He would,
therefore, be entitled to
damages for prospective loss of
earnings. On this head, I award
him GH˘20,000.00. I am hopeful
that, with years to come, he
would recover more to make some
earnings.
Thus, from the above, I give the
judgment for the plaintiff as
follows:
(1)
GH˘10,000.00 for restitution
of his car.
(2)
GH˘12,000.00 for loss of use
of his car.
(3)
GH˘2,237.68 for medical
expenses.
(4)
GH˘20,000.00 for pain and
suffering.
(5)
GH˘3,000.00 for loss of
amenities of life.
(6)
GH˘12,175.20 for loss of
earnings.
(7)
GH˘20,000.00 for prospective
loss of earnings.
____________
GH˘79,412.88
Total
There would, therefore, be
judgment for the plaintiff for
the sum of GH˘79,412.88. The
plaintiff is awarded cost of GH˘10,000.00.
COUNSEL:
1. Mrs. M. Y. N. Achiampong for
Plaintiff.
2. Mr. R. K. Akpokarie for
Defendants.
(SGD.) UUTER PAUL DERY
JUSTICE OF THE HIGH COURT.
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