BORKETEY vs. ACHINIVU AND OTHERS [1966]DLSC1667

Date	1966-01-31
Suit No.
Citation No.	[1966]DLSC1667

SARKODEE-ADOO C.J

APALOO JSC

SIRIBOE J.S.C.

G. R. M. FRANCOIS FOR THE APPELLANT.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS.

[1966]DLSC1667
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													<main id="main" class="content" style="min-height: 60rem" >BORKETEY<o:p></o:p>&nbsp;vs. <o:p></o:p>ACHINIVU AND OTHERS <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1966] GLR 92<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 JANUARY 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">

G. R. M. FRANCOIS FOR THE APPELLANT.<o:p></o:p>

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS.<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">

SARKODEE-ADOO C.J., 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>At about
10 p.m. on 14 November 1959 a collision occurred between an Oxford Morris
taxicab No. AF 283 driven by the appellant (hereinafter called the plaintiff)
and a bus No. AF 9223 in the charge of the third respondent. The taxicab which belonged
to the plaintiff, was extensively damaged as a result of this accident and was
written off as a total loss. It was the plaintiff’s claim that this accident
occurred as a result of the negligence of the third respondent. The negligence
charged against the third respondent was copiously set out in the statement of
claim.<o:p></o:p><o:p>&nbsp;</o:p>The
respondents made a half-hearted denial of liability in their statement of
defence but conceded that the plaintiff was entitled to various sums of money
which it is unnecessary, for present purposes, to set out. At the trial, the
respondents frankly conceded negligence and as an issue, that was withdrawn
from determination. What the respondents disputed was the quantum of damages to
which the appellant was entitled and the loss of earnings. The ground on which
the respondents considered themselves entitled to resist the claim for loss of
earnings, was what they submitted was the true legal position. They argued that
as the vehicle was a total loss, they were liable to pay to the plaintiff the
pre-accident value of the car and no more. The appellant urged the contrary.
The learned trial judge (Mills-Odoi J.), in a full and comprehensive judgment
determined the issue of law in favour of the respondents. After citing a number
of decided cases and a passage from Charlesworth on Negligence, the judge held
that the plaintiff was entitled to the pre-accident value of the car and to
towage expenses only. Accordingly, he dismissed the plaintiff’s claim for loss
of earnings.<o:p></o:p>It is
against this part of the judgment that this appeal has been brought. It was
submitted for the plaintiff that in affirming the proposition of law contended
for and on behalf of the respondents, the learned judge was in error. It was
said that the guiding principle of law in this case is restitutio in integrum.
As the plaintiff’s taxicab was shown to be earning profits, the plaintiff was
entitled not only to the pre-accident value of this car, but also to the
profits, which but for the accident, he would have earned. In support of this,
counsel referred us to a number of decided cases including Darbishire v.
Warran,1 and the Scottish case of Pomphrey v. Cuthbertson (James A.).2 In my
opinion, this contention is sound.<o:p></o:p><o:p>&nbsp;</o:p>If the
view of law which found favour with the learned judge be right, it would be
more profitable for a wrong-doer to destroy a person’s chattel than merely
damage it. It would also, in any event, be impossible to reconcile it with the
proposition of law which Lord Sumner laid down in the Admiralty Commissioners
v. S.S. Chekiang3 and which has since been regarded as good law, namely, “the
dominant rule of law is the principle of restitutio in integrum, and subsidiary
rules can be justified only if they give effect to that rule [sic.].”4
Differently put, the principle appears to be that the plaintiff is entitled to
receive as damages such a sum of money as will place him in as good a position
as he would have been if the accident had not occurred. In holding as he did,
that the plaintiff was entitled to no more than the pre-accident value of the
car, the learned trial judge founded himself on passages from four maritime
cases, namely, The City of Rome,5 The Kate,6 The Racine,7 The Llanover,8 and as
I said, a passage from Charlesworth on Negligence. Except the case of The City
of Rome (the report of which is unavailable), I have read the cases from which
the learned judge quoted extracts and in so far as it is possible to extract
from them a ratio decidendi, it is to the effect that the measure of damages in
the case of a vessel totally lost by collision, is her pre-accident value
together with a sum as will represent a profit in current but not future
charters. To the same effect is the passage which the learned judge relied on
in Charlesworth on Negligence.<o:p></o:p><o:p>&nbsp;</o:p>I find
nothing in the judgments or in the textbook statement of the law which lends
colour to the proposition of law which was put forward by the respondents and
affirmed by the learned trial judge. Counsel for the appellant thought that the
cases relied on by the learned judge are all maritime cases and implied that
different rules apply to collisions on land. In my opinion, there is no basis
for this distinction. Whether the damage giving rise to a claim for
compensation be done on land or at sea, the principle is the same, namely, that
the wrong-doer must make reparation for his wrongful act and the owner of a
damaged article is entitled to restitutio in integrum.<o:p><</main>