FAKAA vs. DUAH AND ANOTHER [1966]DLHC1690

Date	1966-05-31
Suit No.
Citation No.	[1966]DLHC1690

HAYFRON-BENJAMIN J.

P.D. ANIN FOR THE PLAINTIFF.

T.K. ABOAGYE FOR THE DEFENDANTS.

[1966]DLHC1690
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													<main id="main" class="content" style="min-height: 60rem" >FAKAA<o:p></o:p>&nbsp;vs. <o:p></o:p>DUAH AND ANOTHER <o:p></o:p>[HIGH COURT, SUNYANI]<o:p></o:p>[1966] GLR 394<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:
31 MAY 1966.<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">

P.D. ANIN FOR THE PLAINTIFF.<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">

HAYFRON-BENJAMIN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF HAYFRON-BENJAMIN J.<o:p></o:p>The
plaintiff claims as administratrix of the estate of Adjoah Fumah of Nyame, for
herself and twelve dependents against the defendants jointly and severally, the
sum of £G5,000 whereof £G350 represents special damages and £G4,650 represents
general damages, for the negligence of the second defendant in negligently
driving the first defendant’s taxi car No. AT 2812. The claim was later amended
and raised to £G6,000.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff’s case is that, on 2 April 1965 at about 8.30 p.m. Adjoah Fumah was
walking towards New Drobo along the grass verge bordering the offside portion
of the Japekrom—New Drobo road when she was struck by the taxi car belonging to
the first defendant and driven by the second defendant which was also
travelling in the same direction along the same road towards New Drobo. As a
result of being struck and knocked down, the said Adjoah Fumah received fatal
injuries. The accident, the plaintiff claims, was due to the negligence of the
second defendant who was then acting in the course of his employment as a
driver and servant of the first defendant. The second defendant was prosecuted
on charges of careless driving and negligently causing harm to Adjoah Fumah
before the District Court, Berekum, on 3 May 1965. He admitted liability in
open court by pleading guilty to both charges. The plaintiff relies inter alia
on the doctrine of res ipsa loquitur.<o:p></o:p><o:p>&nbsp;</o:p>Adjoah
Fumah was 40 years old just prior to her death and was in very good health. She
was in receipt, the plaintiff claims, of an annual net income of at least £G500
from farming and the selling of foodstuffs; and she spent not less than £G300
per year on her dependents who numbered thirteen. As a result of her death,
these dependents have lost the benefit of the maintenance and support given by
the deceased to them; and they have all suffered mental distress. The hospital,
transport and funeral expenses total £G350.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants deny negligence and contend that the second defendant, who was
admittedly in charge of the vehicle, swerved to the offside to avoid knocking
down a cyclist who suddenly crossed the road in front of the taxi. It was, they
say, during this process that Adjoah Fumah, the deceased was knocked down. They
deny that there is any room for the application of the doctrine of res ipsa
loquitur and further deny that they are estopped from denying negligence in a
civil action by virtue of the plea of guilty to criminal charges of careless
driving and negligently causing harm in a criminal court.<o:p></o:p><o:p>&nbsp;</o:p>This is
the same accident which gave rise to the claim in suit No. HC. 39/65. The
plaintiff in that case (who is the son of Adjoah Fumah the victim in this case)
and his mother were walking along the road, when the defendant’s vehicle struck
them from behind. The plaintiff in that case suffered injuries which fortunately
did not prove fatal. Adjoah Fumah’s injuries resulted in her death. The trial
has taken a similar course. The second defendant, the driver of the vehicle was
not called: the phantom cyclist has remained a phantom. I am satisfied that in
the circumstances of this case, it was for the defendants to explain how the
accident could have happened without negligence on the part of the second
defendant. This they have failed to do. The defendants at no time during the
trial seriously disputed the issue of negligence. From the evidence I am
satisfied beyond a shadow of a doubt that the second defendant negligently
drove his vehicle and that that negligence on his part was the sole cause of
the accident resulting in the death of Adjoah Fumah. There is also clear proof
and the admission by the first defendant that the accident occurred while the
second defendant was driving in the course of his employment as a driver and
servant.<o:p></o:p><o:p>&nbsp;</o:p>The claim
has been gallantly defended on two grounds, the first dealing with and being more
relevant to the quantum of damages payable, and the second being more
fu</main>