MENSAH vs. APPIAH AND ANOTHER [1964]DLHC1928

Date	1964-04-20
Suit No.
Citation No.	[1964]DLHC1928

DJABANOR J.

D. S. EFFAH FOR THE PLAINTIFF.

H. W. KOFI SACKEY FOR THE DEFENDANTS.

[1964]DLHC1928
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													<main id="main" class="content" style="min-height: 60rem" >MENSAH <o:p></o:p>vs. <o:p></o:p>APPIAH AND ANOTHER <o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p>[1964] GLR 248<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">

DATE:
20 APRIL 1964.<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">

D. S. EFFAH FOR THE PLAINTIFF.<o:p></o:p>

H. W. KOFI SACKEY FOR THE DEFENDANTS.<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 0in 0in">

DJABANOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF DJABANOR J.<o:p></o:p>I do not
know that I can say much about the plaintiff, but I can certainly say that her
mother, the late Sussana Adu was a hardworking and dutiful woman. On 10 June
1961 at about seven or eight o’clock in the morning she was, as is the practice
in our communities, taking the chamber pot used by her grandchildren to the
public lavatory for disposal when she was knocked down by one of the city
council refuse collecting vehicles and severely injured. The vehicle was at the
time being driven by the first defendant, the city council’s driver. Sussana
Adu was taken to the central hospital for treatment, where two days later her
right (the injured) leg was amputated. Two months later she died. The
plaintiff, the daughter of the said Sussana Adu, is now claiming damages under
the British Fatal Accidents Act 1846,1 on the ground that the accident occurred
through the negligent driving of the said driver Yaw Appiah, and that Sussana
Adu died as a result of the injuries she suffered from the accident. The
defendants were denying liability on the grounds that the driver was not
negligent, and that the said Sussana Adu did not die from the wounds she
sustained, or alternatively that she did not die only from these wounds.<o:p></o:p><o:p>&nbsp;</o:p>The first
matter I want to dispose of is the effect of the fact that the plaintiff did
not set out any particulars of negligence in her statement of claim.<o:p></o:p>At page
533 of Bullen and Leake’s Precedents of Pleading (11th ed.) the learned author
there wrote as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“It is
not enough for the plaintiff in his Statement of Claim to allege merely that
the defendant acted negligently and thereby caused him damage; he must also set
out facts which show that the alleged negligence was a breach of a duty which
the defendant owed to the plaintiff. The Statement of Claim ‘ought to state the
facts upon which the supposed duty is founded, and the duty to the plaintiff
with the breach of which the defendant is charged’ (per Willes J. in Gautret v.
Egerton (1867) L.R. 2 C.P. 371, cited with approval by Lord Alverstone C.J. in
West Rand Central Mining Co. v. R. [1905] 2 K.B. 400). Then should follow an
allegation of the precise breach of that duty, of which the plaintiff
complains; in other words, particulars must always be given in the pleading,
showing in what respect the defendant was negligent . . .”<o:p></o:p><o:p>&nbsp;</o:p>The case
of Esso PetroIeum Co. v. Southport Corporation2 was a case concerning an
emergency discharge of oil on the foreshore. The plaintiff alleged that the
emergency was due to the negligent navigation and control of the master of the
ship. All these allegations were rebutted by the defendants. The plaintiffs
then sought to blame a fracture of the stern frame which affected the steering
(as the judge found). This was not pleaded, but the plaintiffs said the onus
was on the defendants to explain how the stern frame came to be fractured,
which onus if it existed they had admittedly not discharged. It was held that
the plaintiffs could not rely on the fracture, because they had not pleaded it
as due to negligence or at all.<o:p></o:p><o:p>&nbsp;</o:p>The
purpose of pleadings is to prevent surprise and to acquaint the parties of the
respective burdens which they have to discharge. In the Esso Petroleum case it
seems to me that the plaintiffs failed because after failing to substantiate
their claim upon the particulars they had alleged, they tried to avail
themselves of the proof of other particulars which they had not alleged or
attempted to rely upon. I think with respect that they were rightly told that
they could not do so. In this case the plaintiffs relied upon the fact that
“the first defendant while driving the second defendant’s vehicle so
negligently drove the said vehicle that he hit the late Sussana Adu with it and
knocked her down and she sustained serious injuries.” The defendants asked for no
particulars of the negligence and left the plaintiff to prove that the first
defendant was negligent. The plaintiff then led evidence to the effect that the
first defendant while reversing the vehicle knocked down and injured Sussana
Adu. The defendants defended the action without any objection on the grounds of
surprise or embarrassment or lack of particulars and I do not think I ought to
say that they were embarrassed by lack of particulars. I think that in the
circumstances the lack of particulars on the part of the plaintiff is not fatal
and I will consider the evidence that has been led without objection.<o:p></o:p><</main>