ARHIN vs. BRENYA AND ANOTHER [1967]DLHC1451

Date	1967-12-21
Suit No.
Citation No.	[1967]DLHC1451

ARCHER J.

I. K. ABBAN FOR THE PLAINTIFF.

DR. T. K. ABOAGYE FOR MR. TOTOE FOR THE DEFENDANTS.

[1967]DLHC1451
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													<main id="main" class="content" style="min-height: 60rem" >ARHIN <o:p></o:p>vs. <o:p></o:p>BRENYA AND ANOTHER <o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1967] GLR 791<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 DECEMBER
1967.<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">

I. K. ABBAN FOR THE PLAINTIFF.<o:p></o:p>

DR. T. K. ABOAGYE FOR MR. TOTOE 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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.<o:p></o:p>The
plaintiff, as administrator of the estate of the late Kwame Arhin, claims from
the defendants jointly and severally damages as compensation for the benefit of
the dependants and also damages for the benefit of the estate of the deceased.
The plaintiff’s statement of claim is to the effect that on or about 11
December 1965, on the Bibiani-Jereso motor road, the deceased sustained serious
physical injuries as a result of the grossly negligent driving of vehicle No.
AT 1803 by the first defendant who at the material time was the servant or
employee or both of the second defendant and who was driving the said vehicle
in the course of his employment.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants denied any negligence on their part and maintained that as they had
paid compensation under the Workmen’s Compensation Act, 1963 (Act 174), the
present action was barred. Mr. Totoe, learned counsel for the defendants,
referred me to two judgments delivered by Apaloo J., as he then was, at the
Kumasi High Court, in support of the defendants’ contention that the plaintiff
‘s present action was not maintainable. I have read the ruling and judgment in
Akufo v. Issaka delivered at Kumasi, the first on 24 May 1962, unreported, and
the second on 1 October 1962, reported in [1962] 2 G.L.R. 88 very carefully and
although I cannot quarrel with their correctness, I am of the view that the
facts before Apaloo J. were different. There the workman had been paid
compensation without realising that the payment would debar him from claiming
damages again under the common law. The workman was advised to refund the award
paid under the Workmen’s Compensation Ordinance, Cap. 94 (1951 Rev.), in order
to take a fresh action claiming damages for negligence under the common law.
There the workman was alive.<o:p></o:p><o:p>&nbsp;</o:p>But the
facts before me are different. Mr. Abban, learned counsel for the plaintiff,
has submitted that not all the dependants in the present action were paid under
the Workmen’s Compensation Act, 1963, and moreover the action has been taken to
recover damages for the benefit of the estate of the deceased. In the present
action, the workman is dead and the action is for the benefit of dependants on
the one hand and for the benefit of the estate of the deceased on the other
hand. I have therefore decided to consider first of all whether this action is
maintainable. Section 24 (1) and (2) of the Workmen’s Compensation Act, 1963
(Act 174), provide:<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">“(1)
Where the injury was caused by the personal negligence or wilful act of the
employer or of some other person for whose act or default the employer is
responsible, nothing in this Act shall prevent proceedings to recover damages
being instituted against the employer in a Civil Court independently of this
Act. (2) A judgment in such proceedings whether for or against the employer
shall be a bar to proceedings at the suit of any person by whom, or on whose
behalf, such proceedings were taken, in respect of the same injury under this
Act.”<o:p></o:p><o:p>&nbsp;</o:p>These two
subsections mean that a person who takes proceedings independently of the
Workmen’s Compensation Act, 1963 (Act 174), whether he succeeds in that other
action or not, cannot institute fresh proceedings under the Workmen’s
Compensation Act, 1963 (Act 174). Then section 24 (3) of the same Act also
provides:<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">“A
judgment in proceedings under this Act whether for or against the employer
shall be a bar to proceedings at the suit of any person by whom, or on whose
behalf, such proceedings were taken, in respect of the same injury
independently of this Act.”<o:p></o:p><o:p>&nbsp;</o:p>I
understand this subsection to mean that a person who takes proceedings under
the Workmen’s Compensation Act, whether he succeeds in that action or not,
cannot institute fresh proceedings independently of the Workmen’s Compensation
Act, </main>