SHELL COMPANY OF GHANA LTD. vs. AYIMAVOR AND ANOTHER [1970]DLCA2164

Date	1970-11-05
Suit No.
Citation No.	[1970]DLCA2164

APALOO JA

SOWAH JA

ARCHER J.A.

J. QUASHIE-IDUN FOR THE APPELLANTS.

C. QUIST FOR THE RESPONDENTS.

[1970]DLCA2164
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >SHELL COMPANY OF GHANA LTD.<o:p></o:p>&nbsp;vs. <o:p></o:p>AYIMAVOR AND ANOTHER <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 1 GLR 51<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:
5 NOVEMBER 1970.<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">

J. QUASHIE-IDUN FOR THE APPELLANTS.<o:p></o:p>

C. QUIST FOR 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">

APALOO, SOWAH AND ARCHER JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>Apaloo
J.A. delivered the judgment of the court. The plaintiffs are the administrators
of the estate of the late Madam Akle Ayimavor of Kopehe and Accra. The deceased
met her death as a result of a lorry accident which took place at Hwakpo
junction on 5 November 1967. According to the evidence, the deceased who
carried a headload, was talking to the driver of a stationary lorry at the
Hwakpo-Ada junction when a car driven by a European in the defendant company’s
employ emerged from the direction of Ada and violently struck her. Such was the
force of the impact, that the car carried her on its bonnet for a number of
yards and eventually hurled her on to the ground. She suffered serious injuries
from this and her end came shortly afterwards.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiffs therefore brought a suit against the company, under the Civil
Liability Act, 1963 (Act 176), claiming damages under several heads. The
plaintiffs based themselves on the fact that the company’s servant was
negligent. The company denied this and in the alternative pleaded that the
deceased was guilty of contributory negligence. At the trial, no evidence was
led on behalf of the company and the learned judge accepting the plaintiffs’
evidence, held that the company’s servant was negligent. He rejected the plea
of contributory negligence raised by the company and mulcted the latter in
damages aggregating the sum of N¢16,400 under various heads. The company
contest that judgment by this appeal.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>Mr. J.
Quashie-Idun for the company argued that there was internal evidence from the
plaintiffs’ own case from which contributory negligence can be found and that
the judge was in error inasmuch as he held otherwise. With respect, we find
nothing in that contention. The facts of the accident were all one way and were
related by the plaintiffs. They were virtually uncontradicted and ineffectively
challenged. We find it impossible to hold on those facts that the deceased was
in part the author of her own misfortune. On the contrary, we share the learned
judge’s conclusion that the company’s servant was grossly negligent and was
solely to blame for the accident. It follows that this ground of appeal fails.<o:p></o:p><o:p>&nbsp;</o:p>The more
serious contentions raised on behalf of the company were however on the quantum
of damages and the basis on which some of the awards were made. The learned
judge awarded the dependants of the deceased N¢650.00 for mental distress and
proceeded to apportion it among her seven infant children. Mr. Quashie-Idun
complains that that award was incompetent as the legislation which authorised
this award prescribed a period of three years which has lapsed. For this
submission, he points to section 18 (4) of the Civil Liability Act, 1963, which
enacts: “Paragraph (b) [this enables damages to be awarded for mental distress]
of subsection (1) shall have effect only in respect of a death occurring within
three years after the date of the passing of this Act.”<o:p></o:p><o:p>&nbsp;</o:p>The Act
was passed on 19 April 1963 and the period limited by this section expired on
19 April 1966. The death which gave rise to this action occurred on 5 November
1967, that is after the statutory period. We agree that as damages for mental
distress did not lie at common law, this award must go. Indeed Mr. Quist for
the respondents concedes this.<o:p></o:p>