AMAKOM SAWMILL & CO. vs. MANSAH AND ANOTHER [1961]DLSC1974

Date	1961-04-22
Suit No.
Citation No.	[1961]DLSC1974

VAN LARE JSC

OLLENNU JSC

AKUFO-ADDO JSC

N.Y. B. ADADE FOR THE APPELLANTS

OKORLEY FOR THE RESPONDENTS

[1961]DLSC1974
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AMAKOM SAWMILL &amp; CO.

[SUPREME COURT]

[1963] 1 GLR 368

DATE: 22ND APRIL, 1963.

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COUNSEL:&nbsp;&nbsp;

N.Y.
B. ADADE FOR THE APPELLANTS.

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VAN LARE, OLLENNU AND
AKUFO-ADDO JJ.S.C.

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&nbsp;

[His lordship recited the facts as set out in the headnote and
continued:] 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;

(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;

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.

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,1 Dann v. Hamilton,2 D’urso v. Sanson.3 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 pl</main>