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Negligence - Vicarious liability
– Award of damages - Practice
and Procedure - raising points
of law on an appeal -
HEADNOTES
We
have before us an appeal from
the judgment of the Court of
Appeal. By that judgment, the
decision of the trial court on
the question of
negligence including the
apportionment of the plaintiff‘s
contribution was upheld. The
learned justices of the Court of
Appeal however interfered with
the award of damages by reducing
it from GH₵425,000.00 to GH₵
150,000.00. Before us the
plaintiff has launched an attack
on both the determination of
negligence particularly that
relating to the apportionment of
liability that was assessed at
15% against the plaintiff
against the defendants and also
the reduction of damages awarded
in his favor at the trial court.
HELD
The
same situation applies to the
award of GH₵50, 000.00 for
future nursing care, a claim
that was bare on the pleadings
and the evidence as was the
award for loss of expectation of
life. This being the case, we
think that the award made by the
learned trial judge was based
mainly on conjectures and it is
no doubt that he made such a
very high award. Had he taken
the relevant matters into
account, he would in all
probability have come to a
figure proximate to the GH₵90,
000.00 that we consider fair and
reasonable from the evidence.
Accordingly, subject
to the variation of the award
for general damages, the appeal
is dismissed. The result is that
we substitute an award of GHS
90, 000.00 in place of that
allowed by the Court of Appeal.
STATUTES
REFERRED TO IN JUDGMENT
1992 Constitution
Courts Act, (Act 459)
CASES REFERRED TO IN JUDGMENT
Akufo Addo v Catheline [1992] 1
GLR, 337
Tindana v Attorney-General
[2011], 2 SCGLR, 743.
P1 and others (minors) v
Bedfordshire County Council
[1995] 2 AC 63
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
GBADEGBE, JSC:-
COUNSEL
BARIMA-AGYEKUM HINNEH FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
UMMU
ZAKARI (MS), PRINCIPAL STATE
ATTORNEY FOR THE
DEFENDANTS/ APPELLANTS/
RESPONDENTS.
GBADEGBE, JSC:-
We have before us an appeal from
the judgment of the Court of
Appeal. By that judgment, the
decision of the trial court on
the question of negligence
including the apportionment of
the plaintiff‘s contribution was
upheld. The learned justices of
the Court of Appeal however
interfered with the award of
damages by reducing it from
GH₵425,000.00 to GH₵ 150,000.00.
Before us the plaintiff has
launched an attack on both the
determination of negligence
particularly that relating to
the apportionment of liability
that was assessed at 15% against
the plaintiff against the
defendants and also the
reduction of damages awarded in
his favor at the trial court.
Before proceeding to consider
the appeal, we need turn our
attention to the response filed
by the parties to a point of law
raised by us under rule 6(8)
regarding the question of
vicarious
liability of the 1st 2nd
and 4th defendants
for the negligence on which the
claim herein was based.
Although both parties complied
with the direction, we would
like to address certain points
of law raised by learned counsel
for the plaintiff regarding our
authority to
raise
points of law on an appeal.
In his submission, he contended
that to be good, the question
should be limited to
jurisdiction. In support
thereof, reference was made to
certain authorities, but we say
at once that the arguments made
by him suffer from a misreading
of the operative words by which
rule 6(8) is expressed. In our
view. the power conferred on us
under the rule is an
acknowledgement of the authority
in the court to raise points for
parties to respond thereto is
not derived from the rules of
Court but arises out of the
requirement of the duty to
deliver decisions in accordance
with the law for which reason at
our appointment we make an open
declaration to that effect. The
power of determining appeals is
derived both from the
Constitution and the Courts Act,
(Act 459) and accordingly
what the rules provide is only
to regulate how the court may
take a point of law not raised
by the parties into account; it
is limited only to ensuring that
the Court does not without
affording the parties before it
the opportunity of responding
thereto to base its decision on
it. In fact, from the
formulation of the rule, there
is no indication that the rule
was conferring any new
authority on the Court. That the
power of the Court under the
rule is not limited to
jurisdictional issues as is
evidenced by a collection of
cases including
Akufo
Addo v Catheline [1992] 1
GLR, 337 and Tindana v
Attorney-General [2011], 2
SCGLR, 743. Both cases dealt
with non-compliance with rules
of procedure and or an order of
the court.
Then, it was contended against
us that the point raised had the
effect of substituting a new
case for the defendants. Quite
clearly, that is far from the
truth as the point was raised by
the plaintiff in paragraph of
his Reply to the Statement of
Defence filed on behalf of the
defendants other than the 3rd.
As it was derived from the
pleadings, it is a question that
we are entitled to have it
addressed by the parties before
determining the case and it is
of no consequence that the
courts below adverted their
minds to it. It being a
question of law, we are free
unlike those relating to
determinations of fact, to
consider it anew on appeal.
Closely related to the above
attack is the contention that as
there was a wrong, the court was
bound to provide a remedy.
Whiles , it is true that courts
are citadels of justice where
those whose rights have been
wronged at law may basing
themselves on the appropriate
legal remedy arising from the
facts on which the case turns
seek redress in the form of
compensation or damages. Courts
are not enabled to allow
remedies without the plaintiff
first satisfying it on the
appropriate legal remedy.
We have also observed a default
arising from the proceedings
that raises an unanswerable
point which we would like to
comment on for future guidance.
It concerns the alleged unnamed
3rd defendant. He was
never served with the writ and
accompanying processes and
although from the nature of the
case, he was a proper and
necessary party to the action
whose presence was necessary for
an effectual and complete
determination of the dispute,
the action proceeded without him
and any attempt being made by
the plaintiff to have his
identity known so that he could
be served. It seems that the
plaintiff was content with
dealing with the other
defendants only when from the
facts, the plaintiff was thrown
overboard from a vehicle being
driven by the said 3rd
defendant. Curiously, the
Attorney-General’s Department
entered appearance on behalf of
a party who was neither an
employee of the government or
any of its agencies or driving a
vehicle owned by the government.
The appearance entered on his
behalf was therefore without
authority and although counsel
who acted for the defendants
limited his statement of defence
to the 1st, 2nd
and 4th defendants
only, nothing was done at the
trial court to expunge the
purported appearance in order
that consequential steps might
be taken thereon including
either striking him out of the
writ or serving him o that the
dispute could be determined in
accordance with requirements of
due process. But as under the
Rules, misjoinder and or
non-joinder cannot defeat any
action, we are bound, though
unhappily to determine the
matter notwithstanding that from
the pleadings the 3rd
defendant looks a competent
party to the proceedings.
We now turn our attention to the
consideration of the appeal on
the merits. Regarding the
question of liability in
negligence and the apportionment
of liability, we are of the view
that having supported
extensively the said finding
when the defendants appealed
against same to the intermediate
appellate Court, the plaintiff
cannot now be enabled to resile
from the arguments canvassed
before the Court of Appeal in
support of the trial court’s
finding only to turn round
before us urging to the
contrary. We think that learned
counsel’s conduct amounts to
approbating and reprobating,
something which we cannot
condone. We are in great
difficulty to appreciate how the
affirmation by the Court of
Appeal of a position that was
supported by the said counsel
can now be the very basis of
arguments that are contrary to
the view of the matter urged
before them. Indeed, the
judgment of the learned justices
on appeal to us reveals that
they accepted the submissions
made by learned counsel for the
plaintiff who was acting for the
respondent before them. In the
circumstances, we reject the
appeal of the plaintiff against
the determination of liability
and the related apportionment of
the question of contribution. We
are also of the view that the
decision of the trial court on
the issue of contributory
negligence properly took into
account the fact that although
the prisoners were carried in
the bucket of the truck, it was
only the plaintiff who found
himself on the ground when the
accident occurred. Although, we
are of the view that the
relation between the plaintiff
and the Prison authorities is
regulated statutorily, we are
prepared for policy reasons to
hold that in causing the
plaintiff to board the Kia
truck, the 4th
defendant, the accompanying
prison officer owed a duty of
care towards him in relation in
particular to his safety. It is
of great import in the public
interest that we impose such a
responsibility on the 4th
defendant to avoid seating the
plaintiff in the bucket of a
truck. That certainly brings the
damage suffered by the plaintiff
within the range of reasonable
foreseeability. The case of
P1 and
others (minors) v Bedfordshire
County Council [1995] 2 AC
63, is a case in point. In
the course of his judgment in
the said Conjoined Appeals Lord
Jauncey observed:
“Where a statute confers a
private law right of action a
breach statutory duty. Howsoever
caused will found an action.
Where a statute authorises that
to be done which will
necessarily cause injury to
someone no action will lie if
the act is done with reasonable
care. If, on the other hand, the
authorised act is performed
carelessly whereby unnecessary
damage is caused a common law
action will lie.”
This means that the only grounds
of appeal properly before us are
those which call into question
the reduction of damages awarded
in favor of the Plaintiff from
GH₵ 425,000.00 to GH₵150,000.00.
The question that we have to
determine from the available
evidence is whether the
reduction was justified. We have
carefully attended to the
written briefs submitted by the
parties as well as the record of
appeal and have reached the view
that in the statement of claim,
the plaintiff merely sought a
global award for general damages
in the sum of GH₵500,000.00. At
the trial, the plaintiff
produced evidence of the
injuries suffered by him
consequent upon the accident
that required him to go through
surgeries. While noting the
plaintiff’s entitlement to
compensation for the injuries,
we observe that the trial court
accepted without proof the
allegation that the plaintiff
was an income earner from
masonry and took same into
account in allowing the GH₵
425,000.00. In reducing the
award made by the trial court,
the learned justices provided no
breakdown of the various sums
that aggregated to
GH₵150,000.00.
In our opinion, the
award of
damages being a question of
law and fact and regulated by
settled principles, the Court is
enabled in the light of the
challenge to the reduction of
damages by the Court of Appeal
to inquire into the question of
damages. In so doing, the court
may prefer either of the two
awards or substitute its own
view of the appropriate damages
that ought to have been awarded
to the plaintiff against the
defendants. After carefully
examining the evidence of the
plaintiff in support of his
claim to the award of damages,
we are of the opinion that
although the award of the
Court of Appeal looks more
reasonable than that of the
learned trial judge in respect
of the true estimate of damages,
the said award suffers from the
erroneous inclusion for loss of
future earnings from the trade
of masonry by the plaintiff on
which there was no credible
evidence. The learned trial
judge accepted without more the
bare allegation of the plaintiff
that he was a mason when in fact
no evidence of previous earnings
was offered before the court
from which reductions caused a
common law right future earnings
can be inferred. Therefore that
head of damage must be excluded
from the total award first by
determining its percentage in
the award of GHS 425,000.00 by
the trial court and thereafter
proceed to trace it within the
award made by the Court to
deduct it from the GHS 150,
000.00 in order that it truly
reflects appropriate heads of
damage. This will involve a
process of severing the good
from the bad, so to say.
As follows:
Although the initial award of
GH₵500, 000.00 by the trial
court was reduced by 15%, each
of the separate heads of damage
which aggregated to that
amount will still retain the
percentage that they bore in
the initial amount. The amount
of GH₵200,000.00 therefore
allowed for loss of convenience,
for example will still be 40% of
the amount allowed after
applying the 15% reduction
consequent upon the
determination of the plaintiff’s
contributory negligence.
Therefore, when the learned
justices of the Court of Appeal
varied the award from GH₵
425,000.00 to GH₵150,000.00, the
amount allowed for loss of
earnings would be 40% of the
total award for damages. By a
simple arithmetical computation,
we need for the conclusion
reached in this delivery that
there was no proof of the loss
of earnings deduct 40% from the
amount of GH₵150,000.00 which
comes to GH₵150,000.00- 60,
000.00= GHS90,000.00. The
rationale for this is that as
the learned justices of the
Court of Appeal having reduced
the award without any
corresponding disallowance of
any of the heads of damage
allowed by the trial court, the
award continues to include that
relating to the unproved head of
damage for loss of earnings
which must be deducted therefrom
to render it compliant with the
principles regulating the award
of damages. Therefore, we reduce
the award to GH₵90,000.00 which
on the evidence is fair and
reasonable. This we reach,
without impairing any of the
other heads of damage allowed by
the learned trial judge at page
105 of the record of appeal
although a close look at pages
104-105 of the record of appeal
shows that in making the ward
relating to, for example, loss
of conveniences of life, the
learned trial judge did not take
into account an known activities
that the plaintiff had been
engaged in before the accident;
he just made an award in the sum
of GH₵ 75, 000.00.
The same
situation applies to the award
of GH₵50, 000.00 for future
nursing care, a claim that was
bare on the pleadings and the
evidence as was the award for
loss of expectation of life.
This being the case, we think
that the award made by the
learned trial judge was based
mainly on conjectures and it is
no doubt that he made such a
very high award. Had he taken
the relevant matters into
account, he would in all
probability have come to a
figure proximate to the GH₵90,
000.00 that we consider fair and
reasonable from the evidence.
Accordingly, subject to the
variation of the award for
general damages, the appeal is
dismissed. The result is that we
substitute an award of GHS 90,
000.00 in place of that allowed
by the Court of Appeal.
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
AVRIL LOVELACE-JOHNSON (MS)
(JUSTICE OF THE SUPREME COURT)
G. TORKORNOO (MRS)
(JUSTICE OF THE SUPREME COURT)
E. YONNY KULENDI
(JUSTICE OF THE SUPREME COURT)
COUNSEL
BARIMA-AGYEKUM HINNEH FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
UMMU ZAKARI (MS), PRINCIPAL
STATE ATTORNEY FOR THE
DEFENDANTS/ APPELLANTS/
RESPONDENTS. |
