Amakom Sawmill &Co v. Mansah [1963] 1GLR 368.



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Akufo-Addo J.S.C. The grounds put forward by learned counsel for the appellants in support of the appeal were mostly a reiteration of the defences put up in the court below and may be summarised as follows: (1) that the finding that the driver of the truck was negligent is against the weight of evidence; (2) that on the principle of volenti non fit injuria the respondents were not entitled to succeed; (3) that the deceased was guilty of contributory negligence; (4) that assuming the driver of the truck was negligent the appellants are not vicariously liable on the ground that the truck was hired by the deceased under whose control and direction the driver was at all material times; (5) that the deceased’s death was the result of inevitable accident; and (6) that the damages were excessive.

It is perhaps unnecessary to state that, except in the case of the ground relating to damages, the issues raised by these grounds were all issues of fact determinable upon the evidence before the learned trial judge. Learned counsel for the appellants has however referred to a number of English cases on the issues relating to the plea of volenti non fit injuria, to the alleged contributory negligence of the deceased and to the liability of the appellants for the negligence of their driver, and I think it desirable to examine briefly these cases to determine their relevance to these issues.

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Mr. Adade, learned counsel for the appellants, submitted that the deceased in consenting to move (albeit at the request of the driver) from the driver’s cab to the back of the truck accepted all the dangers attendant upon the mode of travelling on the truck, for the back of the truck was only intended for the carrying of logs and not for passengers, and that travelling there meant standing precariously by the side of the log and holding on tightly to the hood to keep one’s balance. There was always, submitted counsel, the danger of a passenger losing his balance and falling off the truck. It cannot be doubted that travelling at the back of a timber truck especially when it is loaded with logs is a very dangerous mode of travelling, but what risk does a person run who resorts to that mode of travelling? It certainly cannot be more than the risk of losing his balance and falling off the truck, and if the deceased accepted this risk (assuming learned counsel’s submission to be correct) he could not be said either by implication or otherwise to have accepted, or to have absolved the driver from liability for, any subsequent negligence on the part of the driver which might cause him injury.

Learned counsel referred the court to the following English cases on the application of the principle of
volenti non fit injuria, but none of these cases is of any assistance to the defendants’ case. The cases are
London Graving Dock Co. v. Horton [1951] 2 All E.R. 1, H.L., Dann v. Hamilton [1939] 1 All E.R. 59., D’urso v. Sanson [1939] 4 All E.R. 26.

The only point of importance to this appeal in the judgment of the House of Lords in the case of London Graving Dock Co. v. Horton is a restatement of the principle that whether or not an injured person claiming damages for his injuries consented to a risk is a question of fact for the jury or in the absence of a jury for the trial judge.

In the case of Dann v. Hamilton the plaintiff, who was given a gratuitous lift in the defendant’s car, knew that the defendant through drink had materially reduced his capacity for driving safely. In the course of the journey the defendant stopped to let down a passenger. The plaintiff knew even then that the defendant was still not sober and had the opportunity to leave the car. He however continued the journey, and an accident occurred by which he was injured. It was contended for the defendant that in consenting to continue the journey when he had the opportunity to leave the car the plaintiff must be taken to have consented to run the risk of being injured by the defendant’s erratic driving of which the plaintiff had previously become aware and therefore the maxim of volenti non fit injuria applied. It was held that by voluntarily travelling in the defendant’s car with the knowledge that the defendant was the worse for drink, the plaintiff could not be held to have consented to be injured by the defendant’s negligence. The view which I have already expressed of the untenability of the deceased’s consent to be injured by the negligence of the driver finds ample support in this decision.

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In D’urso v. Sanson [1939] 4 All E.R. 26 at p. 30, the widow of a deceased watchman who died trying to fight a fire that had broken out in his employers’ premises was held to be entitled to damages for her husband s death, because the fire was the result of the negligent manner in which the defendants conducted their business. Simonds J. (as he then was) said in that case, “Upon that statement of the facts, once negligence of the defendant is found, there is no room . . . for the application of the doctrine volenti non fit injuria”

The learned trial judge in this case found that the driver of the truck was negligent and that his negligence was the cause of the deceased’s death. In order, therefore, to make the doctrine of volenti non fit injuria applicable the appellants will have to displace that finding of fact by demonstrating from the evidence that that finding was wrong. The learned judge made the following finding on the point, “I find it proved that this accident was due to the negligent driving of the second defendant [i.e. the driver] and that this was the cause of the deceased’s death,” and he later went on to say:

“In my opinion, the defence of inevitable accident completely fails. Indeed my finding that the second defendant was negligent puts an end to that defence. The defence of volenti non fit injuria is equally wholly untenable. On the facts of this case, it seems to me, to say that very least, ridiculous to suggest that the deceased foresaw that the second defendant was going to drive at great speed on an incline and consented to being injured. The evidence which I accept is that when the speed was unreasonable, both the deceased and Gyasi called out to the second defendant to moderate it to no avail. I hold that the plea of violenti non fit injuria fails . . .

It was also submitted that no negligence was proved in this case. In my opinion, what was established in this case was not ordinary but gross negligence. The second defendant knew that for his own purposes, the deceased had to stand in the body of the truck and hold on to the hood precariously to maintain his balance.

There was in those circumstances, a more than ordinary duty of care on the second defendant. Yet he chose to go at great speed on an incline and did not heed a warning by the deceased to moderate his speed with the result that he lost control and ran into a ditch. It is the type of negligence that the Roman lawyers would call culpa lata.

It was finally submitted that if negligence was established against the second defendant, the deceased contributed to it. I am content to say I find no evidence of contributory negligence on the part of the deceased.”

There is nothing in the evidence or in the argument of learned counsel for the appellants that offers the faintest suggestion that that finding is wrong.

On the issue of contributory negligence it is interesting to note that counsel relied on the same facts as those which formed the foundation of his plea of volenti non fit injuria. It is difficult to see how the deceased by travelling in the body of the truck could have contributed to his death

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which was caused by overspeeding and the consequent loss of control over the truck by the driver. The case of Slater v. Clay Cross Co., Ltd.[1956] 2 All .E.R. 625, C.A. relied on by counsel has not the remotest relevance to the facts of this case.

In disputing the appellants’ liability for the act of their driver, the appellants in the court below alleged that the truck was hired to the deceased and that the driver operated under the control and direction of deceased. It was also alleged that it was at the deceased’s request that the driver gave the woman, Adwoa Yeboah, a lift. The defendants failed to prove these allegations. Counsel submitted here, as he had done in the court below, and in reliance upon the cases of Twine v. Beans Express Ltd.[1946] 1 All E.R. 202, and Warren v. Henlys [1942] 2 All E.R. 935. that in giving a lift to the woman, Adwoa Yeboah, the driver was doing something that was unauthorized and was acting outside the scope of his employment and that therefore the appellants were not liable for his wrongful act. In dismissing that submission in the court below, the learned judge said:

“It was submitted that in taking a passenger on the bush truck, the second defendant did something that was unauthorised and acted outside the scope of his employment and that the defendant firm were accordingly not liable for his wrong. The answer to that submission is that the deceased was lawfully on the bush truck. Indeed the second defendant testified that he was authorised by the defendant firm to take him on. He was on the truck for a purpose mutually beneficial to both the defendant firm and the deceased himself. Accordingly, the second defendant owed him a duty of care which I am satisfied he has broken.”

I am in complete agreement with the learned judge and would add that the two cases cited by counsel would have been of some assistance to the appellants if this action had been brought by Adwoa Yeboah or her dependents. As far as the deceased is concerned these cases are wholly irrelevant.

On all the material issues the learned judge found against the defendants on the facts as he was entitled to do, and I am unable to say that he was wrong in his findings on any of the issues. Indeed upon the evidence he could hardly have found otherwise.

Mr. Adade complained that the damages of £G3,000 awarded were excessive. My personal view, for reasons which I will assign later, is that they are not adequate, but as the question of damages is in the discretion of the trial judge who cannot be said to have acted on any wrong principle of law, and as the respondents have not appealed against the inadequacy of the damages I do not feel justified in disturbing the award.

The question of assessing damages in a case of this nature is not an easy undertaking by any means, and in my view the learned judge was right in adopting the broad principles for assessment enunciated by
Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd.[1942] A.C. 601. H.L. and by

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Humphreys J. in Roughead v. Railway Executive [1949] T.L.R. 435. There is however a difference between the two formulae enunciated in these cases when it comes to transforming the formulae into arithmetical realities. The datum or basic figure which has to be turned into a lump sum by a number of years’ purchase is arrived at in different ways. According to Lord Wright in the Davies case this figure is represented by the balance when the ascertained or estimated amount required or expended by the deceased for his own personal and living expenses is deducted from the ascertained or estimated earnings of the deceased. According to Humphreys J. in the Roughead case the basic figure is the ascertained or estimated amount expended by the deceased on the dependants. I am not sure that in a given case the two processes will yield the same arithmetical result’ and in my view Lord Wright’s formula is more likely to be suitable to the conditions of life in this country. Even under the best of conditions where figures are more or less readily obtainable the assessment of damages in the last resort is more a matter of speculation than one of actuarial exactitude, and it is bound to be more so in this country; the narrower, therefore, the field of speculation the greater, I think, will be the resultant justice.

In this country where the majority of the people are farmers and illiterate the initial process of ascertaining the earnings of a deceased person, except in the case of a professional man or a salaried employee, presents almost insuperable difficulties, and adequate results can hardly be achieved by insisting on the wife and children of a deceased person producing figures regarding the earnings of a deceased person. A more adequate result is likely to be achieved by making an estimate of a deceased farmer’s earnings on the basis of the extent of the farm or farms possessed by him and the nature of the crops produced by him. This process does not seem to present much difficulty as the average yield of a given acreage of, say, a cocoa farm, and the market price of the crop are easily ascertainable, and the expenses of production are almost standardised, I think, at about one-third of the total yield of a cocoa farm.

It is even still less easy for a widow and her children to produce any figures in respect of amounts expended on them by the deceased husband and father. In this country the overwhelming majority of husbands, both illiterate and educated, (including salaried husbands) do not disclose their incomes to their wives and children, and, like the deceased husband in the Roughead case, they do not make any specific periodic payments to their wives and children for their maintenance; they pay everything themselves—their own private outgoings, rent, the wives’ dresses and other necessaries, food and drinks, children’s school fees and clothing, etc.

In my view it is much easier to estimate a reasonable proportion of the earnings which a deceased person, having regard to his mode of life and status, might be expected to spend on himself than it is either to require

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of the dependant to submit figures of amounts expended on them or even to make an estimate of such amounts.

While I do not quarrel essentially with the manner in which the learned judge proceeded with the assessment of the damages I would like to say, in the first place, that he should have endeavoured to obtain a figure for the educational expenses of the children three of whom according to the evidence were at school at the death of their father, one of the three at a secondary school. In the second place as the learned judge adopted the least number of years (that is, ten) that the deceased might have been expected to live as the multiplier to arrive at the lump sum, the figure of £G2,000 (almost half the ascertained lump sum) by which the sum was taxed down is in my view unduly high. For a normal and healthy young man of 33 years of age with ten children whose age with ten children whose ages range from two years to fourteen year, anything from fifteen to twenty years’ purchase would be more appropriate.

The uncertainties of the future and other matters of speculation and doubt which form the basis for taxing down the lump sum do not always operate in an adverse direction; they sometimes operate to enhance future prospects, and where dependants include children who may be educated, as almost every parent now in Ghana is keen on educating his children, the taxing-down figures should take account of the future educational requirements of the children which will increase as the child advance in age. The fact that at the death of their father the children advance in age the children are not old enough to be at school and, therefore, nothing has been spent on their education by the deceased in immaterial if there is evidence that had the deceased lived he would have educated his children. As Scrutton L.J.. said in Baker v. Dalgleish
Steam Shipping Co.,[1922] 1 K.B. 361 at p. 371 10 it is not necessary that the dependents should have a legal right to have received that benefit from the deceased or should have actually received any such benefit before the death; it is enough that the dependents had a reasonable expectation of pecuniary advantage in the future had the deceased survived, which pecuniary advantage may be a voluntary contribution from the deceased.

As juries do not try civil cases in this country, the burden of assessing damages falls entirely on judges, and judges may well cultivate a little of the mental attitude of juries to such matters.

There is a point of procedure to which I would like to avert. It will be observed that the learned trial judge assessed the damages at £G3,100, but felt obliged to enter judgment for £G3,000 because the respondents claimed £G3,000 on their writ. The practice in this country is that in all money claims, whether they be for liquidated or unliquidated amounts. a specific figure must, for revenue purposes, be claimed. It seems such a pity that a plaintiff in the circumstances of this case should be awarded less damages than a court has found to be due, merely because of the

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technicality of having claimed a lesser figure on the writ. In such circumstances the ends of justice will be much better served if the court exercises its powers under Order 28, r. 12 of the Supreme [High] Court
(Civil Procedure) Rules to amend the figure claimed to coincide with the figure to which in its view the plaintiff is entitled.

I would dismiss the appeal with costs to the respondents.

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