ADU vs. GLIKSTEN WEST AFRICA LTD. AND ANOTHER [1961]DLHC531

Date	1961-11-13
Suit No.
Citation No.	[1961]DLHC531

APALOO J

E. K. WIREDU FOR THE PLAINTIFF.

G. DAVEY FOR THE DEFENDANTS

[1961]DLHC531
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&nbsp;[HIGH COURT, KUMASI]

[1961] GLR 662

DATE: 13TH NOVEMBER, 1961.

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COUNSEL:&nbsp;&nbsp;

E.
K. WIREDU FOR THE PLAINTIFF. ,G. DAVEY FOR THE DEFENDANTS.

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APALOO, J.

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&nbsp;

By his writ issued out of this court on the 15th September, 1959,
the plaintiff claims against the defendants the sum of £G1,150 being damage
caused to the plaintiff’s lorry as a result of the negligence of the second
defendant.

The plaintiff was the owner of a five-ton Austin lorry No.
AS.7245. This lorry was used in transporting goods between Takoradi and Kumasi
and Bibiani and Takoradi. At the times material to this action, the plaintiff
employed Kofi Fofie as the driver of the said lorry. On the 13th December,
1957, the plaintiff’s said driver was travelling between Bibiani and Takoradi
with goods. When he was three miles out of Bibiani, be parked his lorry on his
near side and alighted to have breakfast. It was about 9 a.m. Not long after he
alighted, he heard a bang. This came from a timber truck which crashed into the
plaintiff’s stationary lorry from behind. It was a straight road and visibility
was good. That timber truck belonged to the first defendant-company and was at
the time of the accident in the charge of the second defendant, its driver and
servant. The second defendant was clearly wanting in care. I find that the
accident was due to his want of care. Indeed, when he was charged with careless
driving as a result of the accident he confessed to his negligence at the district
magistrate’s court, Bibiani. In his statement of defence, the first defendant
pleaded that the plaintiff was guilty of contributory negligence. No evidence
was led in support of this. I find that the second defendant was solely to
blame for the accident. In my judgment, both defendants are jointly and
severally liable to the plaintiff for the loss suffered by him.

As a result of the impact the plaintiff’s lorry was pushed out of
the road into a ditch. Its hood was completely broken, the frame was damaged
and so also were the mudguard, the tyre rod and the gearbox.

I am satisfied that when the accident thus occurred both the
plaintiff’s driver and the second defendant went together to the police station
at Bibiani. The police arrived there later and took measurements and carried on
other routine investigation. This done, the plaintiff’s driver made a 50 mile
journey to Kumasi where he reached about 5 p.m. An hour later, that is at 6
p.m., he informed the plaintiff of the accident. In the meantime the plaintiff’s
lorry remained unattended in the ditch. Both the plaintiff and his driver
proceeded to the scene of accident the next morning. When they reached there
they found the tyres and several other parts missing. It is plain they were
stolen by an unknown person. In the circumstances, the plaintiff’s lorry was
for all practical purposes past repair.

The plaintiff seeks to recover from the defendants the value of
the lorry which he said was £G1,150. Although the defendants did not raise the
point, I have myself given consideration to the question whether the defendants
are liable only for the actual damage to the lorry or also for the
consequential loss due to the theft of parts of the lorry. The plaintiff’s
driver did not leave anyone to attend to the lorry and in a sense the
defendants are not to blame for the theft of the parts. I have, however, come
to the conclusion that I ought not to hold that any principle of actus novus
interveniens broke the chain of causation and absolved the defendants from responsibility
for the theft of the parts. According to Fofie, the plaintiff’s driver, the
only persons he had on the lorry at the time were his mate and a passenger who
owned the goods in the lorry. Both were apparently in the lorry at the time of
the accident. The evidence is that both suffered injuries and were rushed to
the hospital. Fofie was alone and the prudent thing to do in the circumstances
was to arrange for someone in the village where the accident occurred to keep
an eye on the lorry. But Fofie said: “I was perplexed at the sight of the
accident and rushed to inform the lorry owner.” I am satisfied he was in a real
dilemma and took a course, which turned out to be less than prudent. But in my
judgment, the defendants by their negligence put him in this dilemma and he
took a course that was not unreasonable. I reach the conclusion that the
defendants are liable not only for the actual damage to the lorry but for the
loss sustained by the plaintiff by the theft of the parts as well. In other
words, the plaintiff is entitled to recover from the defendants the whole
pre-accident value of his lorry.

According to the plaintiff, he bought the lorry new and used it
for just under seven months when the accident occurred. He said he bought the
chassis for £G900 and spent extras in building the body so that the total cost
to him of the lorry was £G1,150. This means that he spent an extra £G250 to
build a body. This is much too high and I am satisfied it is an exaggeration.
The plaintiff did not say what he spent this large amount for. In this respect
I prefer the evidence of Mr. Portal who said it cost £G60 to construct a body
with canopy for a lorry such as the plaintiff’s. I reckon, therefore, that the
total cost to the plaintiff of the lorry was £G960. The lorry was used for
transport and must have suffered some depreciation from ordinary wear and te</main>