SASU vs. WHITE CROSS INSURANCE CO. LTD. [1960]DLCA289

Date	1960-01-18
Suit No.
Citation No.	[1960]DLCA289

KORSAH C.J.

VAN LARE J.A.

GRANVILLE SHARP J.A.

APALOO FOR THE APPELLANT.

WUAKU FOR THE RESPONDENT

[1960]DLCA289
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													<main id="main" class="content" style="min-height: 60rem" >SASU<o:p></o:p>&nbsp;vs. <o:p></o:p>WHITE CROSS INSURANCE CO. LTD.<o:p></o:p>&nbsp;[COURT
OF APPEAL]<o:p></o:p>[1960] GLR 4<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
18TH JANUARY, 1960.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

APALOO FOR THE APPELLANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

KORSAH C.J., VAN LARE, J.A. AND
GRANVILLE SHARP, J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF VAN LARE J.A.<o:p></o:p>Van Lare,
J.A. delivered the judgment of the court:<o:p></o:p>The
plaintiff in this case in effect claims to be indemnified by the defendant
company under the terms of the insurance policy by which the defendant company
were the insurers of the plaintiff’s motor vehicle. When the motor vehicle in
question was overturned as a result of a defect in the steering mechanism it
was taken on the instructions of the defendant company to their agents,
C.F.A.O. Motor Workshop, Accra, for repairs. The defendant company, however, later
refused to complete the repairs upon which they had started, or to acknowledge
any liability under the policy, on the ground that the defect which caused the
accident and resulting damage was due to a failure on the part of the plaintiff
to maintain the vehicle in efficient condition. The plaintiff, maintaining that
he had properly maintained the vehicle in efficient condition, instituted this
action.<o:p></o:p><o:p>&nbsp;</o:p>He
appears to quantify his damages as being the full insured value of the vehicle,
that is £855, the full replacement value thereof. This clearly in our opinion
cannot be the amount which the plaintiff can claim in law under a policy which
indemnifies him against loss or damage, because it is clear on the evidence
that the vehicle is part-worn, and had been involved in an earlier accident
some six months before the accident which gave rise to the present claim. The
damages as claimed fail to take into consideration the element of depreciation
due to normal wear and tear.<o:p></o:p><o:p>&nbsp;</o:p>The
defence, as we have already said, was that under the exception contained in
paragraph five of the conditions of the policy the defendant company’s
liability was excluded by reason of the plaintiff’s failure to maintain the
vehicle in efficient condition. To resist liability successfully the onus was
on the defendant company to establish satisfactorily that the plaintiff did not
in fact maintain the vehicle in efficient condition.<o:p></o:p><o:p>&nbsp;</o:p>On the
evidence as a whole we are of the opinion that the defendant company cannot be
deemed to have discharged their burden satisfactorily. The facts proved (and it
is common ground) that the cause of the accident was a disconnected ball-joint
at the steering drop arm, due to a nut on it having gradually worked loose, and
in the process having stripped the thread on the drop arm, thereby putting the
vehicle out of control. This is, in fact, what the learned trial judge found,
and this finding has only to be looked at upon the face of it to justify the
view that the defect in the steering mechanism resulted from gradual wear and
tear upon the nut-and-ball joint in question. In fact, the two expert witnesses
called by the defendant company, in an attempt to discharge the burden of proof
that rested upon them, stated that the nut had been caused to come off gradually
over a large number of miles and had made the steering drop arm where the nut
fits threadbare. Each of these witnesses, however, expressed the opinion that
this gradual deterioration in the steering mechanism was the result of
non-maintenance of the vehicle.<o:p></o:p><o:p>&nbsp;</o:p>The
learned trial judge appears to have regarded this opinion as decisive, and to
have relinquished his responsibility to form an opinion of his own,
notwithstanding that there was evidence before him on behalf of the plaintiff,
not only that the vehicle had in fact been sent for maintenance to the C.F.A.O.
Motor Workshop and Texaco twice during the three months immediately preceding
the accident, but also that, in the opinion of a motor mechanic who is a
Government Certifying and Examining Officer, the defect in question could not
have resulted from non-maintenance.<o:p></o:p>