AKRONG AND ANOTHER vs. BULLEY [1965]DLSC1770

Date	1965-06-21
Suit No.
Citation No.	[1965]DLSC1770

MILLS-ODOI JSC

APALOO JSC

SIRIBOE J.S.C.

E. D. KOM FOR THE APPELLANTS.

N. ODOI-ANNAN (WITH HIM ASAFU-ADJAYE) FOR THE RESPONDENT.

[1965]DLSC1770
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													<main id="main" class="content" style="min-height: 60rem" >AKRONG AND ANOTHER <o:p></o:p>vs. <o:p></o:p>BULLEY <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] GLR 469<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:
21 JUNE 1965.<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">

E. D. KOM FOR THE APPELLANTS.<o:p></o:p>

N. ODOI-ANNAN (WITH HIM ASAFU-ADJAYE) FOR THE
RESPONDENT.<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">

MILLS-ODOI, APALOO AND SIRIBOE JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.S.C.<o:p></o:p>This is
an appeal from the judgment of Prempeh J. (as he then was) delivered on 29
April 1963. By that judgment, the learned judge awarded in favour of the
respondent (hereinafter called the plaintiff) damages under the Fatal Accidents
Acts. The facts of this case present hardly any difficulty and the substantial
issues which were fought before the court below and before us are issues of
law. But in order that these issues may be appreciated, it would, I think, be
in order to relate the facts briefly.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff, who has since died, was the mother of the late William George Ayitey
Bulley. The latter was in his lifetime employed as the chief driver of the
Department of Public Construction. On 26 June 1961, while at work in the yard
of the Department of Public Construction, he was knocked down and fatally
injured by a tipper truck driven by the first defendant and owned by the second
defendant company. Mr. Bulley succumbed to his injuries and died the same day.
The plaintiff, claiming that the deceased’s death was due to the negligent
driving of the first defendant, on 3 March 1962, issued against the defendants,
a writ claiming damages. This relief was obviously sought under the Fatal
Accidents Acts, 1846-64,1 as amended by the Law Reform (Civil Wrongs) Act,
1959.2 The plaintiff sued in her capacity as “successor and next-of-kin” of the
deceased. On 27 March 1962, the plaintiff lodged a statement of claim in which
she set out, in paragraph (4), the names of persons on whose behalf the action
was brought.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>It would
seem that some time before instituting the action, the plaintiff was paid
compensation apparently under the Workmen’s Compensation Ordinance.3
Accordingly, when the defendants filed a statement of defence on 31 March 1962,
they pleaded inter alia that the action was barred by virtue of the provisions
of section 24 (1) of the aforesaid Ordinance. The defendants also denied
negligence on their part and contended in the alternative that, even if such
negligence were established, the deceased Bulley contributed to it. They also
denied that the plaintiff was entitled to sue.<o:p></o:p><o:p>&nbsp;</o:p>Some time
after the pleadings closed, some of the contention raised in the statement of
defence became the subject of preliminary argument before Ollennu J. (as he
then was). This was on 29 May 1962. The learned judge declined to pronounce a
ruling on the preliminary arguments and instead decided to defer it for
incorporation in a final judgment. The action was therefore ordered to proceed.
About five months after this order, the plaintiff sought to amend the title of
the suit by prefixing to the words “successor and next-of-kin” the words
“personal representative.” This application came before the court on 15
November 1962, and was granted without opposition. It is to be noted that no
application was made to amend the endorsement on the writ in a similar manner.
After a number of other amendments were sought and granted to the plaintiff,
trial commenced on 4 December 1962, and concluded on 7 March 1963.<o:p></o:p><o:p>&nbsp;</o:p>The
learned trial judge found against the defendants on the question of negligence
and rejected the plea of contributory negligence. As at the time the action was
commenced, the plaintiff had not obtained letters of administration, it was
argued on behalf of the defendants, that the plaintiff did not disclose any
legal capacity to sue. The learned judge rejected that argument on the ground
that as the plaintiff was herself a “beneficiary” she was entitled under the
Fatal Accidents (Amendment) Act, 1864, to sue. On the question whether or not
the action was barred by receipt of compensation, the court accepted the
evidence led on behalf of the plaintiff that the payment was received in the
mistaken belief that it was a gratuity. Accordingly, basing himself on some
English decisions which were cited to him, the learned judge held that the
action was not barred. Having disposed of all the points of law adversely to
the defendants, he decided that the plaintiff was entitled to damages and
proceeded to award them with substantial costs.<o:p></o:p>