BROWN vs. SALTPOND CERAMICS LTD. [1978]DLCA1136

Date	1978-07-25
Suit No.
Citation No.	[1978]DLCA1136

JIAGGE JA

KINGSLEY-NYINAH JA

ANNAN J.A.

DE GRAFT AIDOO FOR THE APPELLANT.

J. B. SHORT FOR THE RESPONDENTS.

[1978]DLCA1136
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													<main id="main" class="content" style="min-height: 60rem" >BROWN <o:p></o:p>vs. <o:p></o:p>SALTPOND CERAMICS LTD.<o:p></o:p>[COURT OF APPEAL ACCRA]<o:p></o:p>&nbsp;[1979] GLR 409<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:
25 JULY 1978<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">

DE GRAFT AIDOO FOR THE APPELLANT.<o:p></o:p>

J. B. SHORT 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">

JIAGGE, KINGSLEY-NYINAH AND ANNAN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANNAN J.A.<o:p></o:p>This
appeal concerns the application of the maxim res ipsa loquitur to an accident
on the highway and the point that is to be determined is whether the
plaintiff-appellant (hereinafter called the appellant) led any evidence to
establish the negligence of the driver of a motor vehicle owned by the
defendants-respondents (hereinafter called the respondents) and which knocked
down his son on the road. The appellant was the only witness. He was, however,
not present at the time of the accident. He went to the scene later. At the
conclusion of the case for the appellant, counsel for the respondents called no
evidence and submitted that there was no evidence of negligence before the
court. The issue then is quite simple—whether the evidence of the appellant
disclosed any negligence by the driver of the respondents’ vehicle.<o:p></o:p><o:p>&nbsp;</o:p>These are
the main points from the evidence. The deceased was about five years old. He
lived in a house very close to a major road which crosses a busy market place
always crowded with people. The accident occurred at about 12.30 p.m. The
appellant heard a bang in the street, came out and saw his son “already knocked
down by a motor vehicle.” He said the boy “was thrown away to a distance and
was unconscious.” Immediately the driver of the vehicle saw the appellant he
exclaimed, “Sorry it was not intentional.” The boy did not regain consciousness
and was dead on arrival at the hospital. This in a nutshell is the evidence on
record as to the circumstances surrounding the accident.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>The
pleading of the appellant state that his son was lawfully crossing the street
when he was negligently knocked down by the respondents’ vehicle. Particulars
of negligence pleaded were that the respondents’ vehicle was driven at
excessive speed in a built-up area without due care and attention; that the
driver failed to keep any or any proper look out and that he failed to stop or
slow down so as to avoid the accidents.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>In their
statement of defence the respondents denied an negligence and all the
particulars of negligence and pleaded on their part that the boy darted into
the street into the path of their driver without ensuring tha t it was safe to
cross the road and so hit himself against the vehicle. The accident was
therefore caused by the boy’s own lack of care.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant was in no position himself to give any evidence in proof of the facts
pleaded as to how the accident happened. No other evidence was given as to the
speed of the vehicle, whether the deceased was crossing the road, the part of
the road or other place where he was knocked down, the distance to which he was
thrown from that point, or the distance which the vehicle travelled to its
final position after the collision. As counsel foi the appellant explained,
they had hoped to call other evidence at the trial but this was not possible.
The appellant therefore had to make the best of what was available to him. The
issue is whether his best was good enough to discharge the burden on him to
establish a breach of the duty of care owed by the respondents’ driver to
pedestrians on the highway, and to the appellant’s son in particular.<o:p></o:p><o:p>&nbsp;</o:p>